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

"Note : ·If separate qu.otas for proµiotion have not already been prescribed in the relevant ·recruitment rules, H . the Ministries/Oepartments .may do so, now in consultation with.the Oommission wherever necesssary." '

882 . SUPREME COURT REPORTS (1984) 3 S.C.R. • This rule of seniority, on the plain terms of Paragraph S(ii) applied only in a situation "where promotions to a Grnde are made from more than one .Grade" and the .argument of respondents Nos. 4 to 190 was that when this provision spoke of promotions to a Grade from more than one Grade,' it referred to promoiions with- in the same service, that is, where the grades from which promotions are made as also the grades of promotion are all grades .within the B same service, but where one of the grades. from which promotions ar~ made belongs to a lower service than the grade of promotion and the promotion is therefore from a lower service to a higher servic~, the rule of seniority set out in this provision could have no application. Respondents Nos. 4 to 190 in the circumstances sub- (J mitted tliat since the grade of Assistant Engineers was in Class II Service while the grade of E:xecutive Engi_neers was in Class I Service, the rule of seniority laid down in this provision was not applicable for determining seniority in the grade of Executive Engineers. We do not think this argument advanced on behalf of. ••• tespondents Nos. 4 to 190 is well.founded. The postulate for the D applicability of the rule of seniority set out in this provision simply _reads : "Where promotions to a Grade are made from more than one Grade" and· it. does not introduce any requirement that the grades from which the promotions are made should belong to the s.ame service as the gaade of promotion. ·It.is no _doubt true that E . the illustration given in the Explanatory Note refers to promotions. from the grades of Upper Division Clerks and store keepers to the grade of. Head Clerk and all these grades beloug to Class III Service but it would not ·be right to limit the appli- cability of the seniority i:ule set out in this provision. by reading into it a limitation which is not there, merely because .an illustration of the applicability of the seniority rule given in the Explanatory Note relates to a case where the grades are all in the same service. If the interpretation contended,for on behalf of respondents Nos, 4 to 190 were correct, the rule of seniority set out in this provision would not be applicable where both the grades, from which the promotions are made, belong to a lower service while the grade of G promotion belongs to a higher service and for such a case, there would be no rule of seniority laid down in the Memorandum date 22nd December, 1959 which would be applicable. We are clearly of the view that the rule of seniority set out in Paragraph S(ii) would . be attracted in all c~ses where promotions to a grade are made from II more than one grade, irresp.ective as to whether these grades all belong to the same service or not and, therefore, the applicability of of this rule of seniority could not be repelled in the present case on

l'.S. MAHAL v. UNION (Bhagwati, J.) 883

the ground that the grade of Assistant Engineers belongs to Class II A Service while the grade of Executive Engineers belongs to Class I Setvice.

But, there is a more fundmental rea$on why the rule of senio- rity ~et out in paragraph S(li) of the Memorandum. dated 22nd December, 1959 must be held to be inapplicable in the case of • B promotion to the grade of Executive ·Engineers. The promotion from the grade of Assistant Executive Engineers was by selection on merit while the promotion from the grade of Assistant Engineers was on the basis of senior.ity-cum-fitncss. Then; was no element of selection on merit in the case of Assistant Engineers as in the case c of Assistant Executive Engineers and .the entire basis of promotion from the two grades was different. Moreover, this provision postu· lated the existence of one single Departmental Promotion Committee for the selecting persons the promotion · from the grades of Assistant Engineers and Assistant Eicecutive Engineers and it was this single Departmental. Promotion Committee, which was to "arrange all the candidates selected from ·different lists in a consolidated order of merit which wilt determine the seniority of persons on pro- motion" to the grade of Executive Engineers. Now, there was some controversy between the parties whether in the case of promotions to the grade of Executive Engineers, there was one single Depart- . mental Promotion Committee for selecting person from the grades E of Assistant Engineers and Assistant Executive .Engineers or there were separate Departmental Promotion Committees-one for selec- tion from the grade of Assistant Engineers and '.the other for -selec- tion from the grade of Assistant Executive Engineers. Respondents Nos. 1 and 2 in the counter affidavit filed by S.R. Roy Choudhury F asserted that in case of selectionifrom the grade of Assistant Engineers; the Union PubliciService Commission was associated with . the Departmental ·Promotion Committee~while in case of selection •from the grade of Assistant Executive Engineers, the Union Public. Service Commission was not so associated and a combined grouping of the persons sought to be promoted from the two groups was, G therefore, not possible. The first petitioner however, jn the rejoinder affidavit filed by him on behalf of the petitioners disputed the correctness of this avernment made on. behalf of respondents Nos. I · and 2 and submitted that it was wrong to suggest "that the UPSC is not associated with the DPC because in all the selections concerned· H with the petitioners and the respondents, a Member of the UPSC

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

was on both the DPCS" and in this. connection he relied on rule 4 of Section 7 of Chapter Vat page 48 of the CPWD Manual, Volume I (1970 Edition). It is not necessary for the purpose of determining A t,he applicability of the rule of seniority in Paragraph. 5(ii) of the · Memoranrlum. dated 22nd December, 1959 to d·ecide whether a . Member of the Union Public Service Commission was associated with the Departmentar Promotion Committee for selection of AssistantExecutive Engineers or not. It is implicit in the statement • B of the first .petitioner in his rejoinder affidavit that there were two • different Depar.mental Promotion Committees for selecting persons for promotion from the grades of Assistant Engineers and Assistant . Executive Engineers. The composition of the Departmental pro-, motion Committees being different and the criteria for promotion to ·!lie grade of Executive Engineers z.lso being different in the case of c Assistant Engineers and Assistant Executive Engineers, it is difficult · to conceive how combined merit rating on the persons sought to be promoted from the two groups could . possibly be made as envisaged in paragraph 5(ii) of the Memorandum dated 22nd December, 1959. It was suggested that a comparative assessment of the merits· of the persons chosen from two groups could made on the basis of still be as to which Departmental Promotion Committee would their confidential reports, bnt the. question would still be as to which Departmental Promotion Committee would make the comparative assessment and eyen if the Departmental Promotion Committee fo~ seleciion of persons to be promoted from the two groups was the same, it is difficult to appreciate how and comparative assessment of the merits .could be made on the basis bf ~onfidential reports. The confidential reports of the officers from the two groups would · ~·

not be written by the same officer or even by officers of equivalent rank, because in the case of Assistant Engineers promoted as officia- . ting Execµtive E.ngineers in excess of their quota and c~nsecjuently ff pushed down ·for being absorbed within their quota in fater years, their confidential reports for the preceding three years would be writ~ ten in respect of their performance as officiating Executive Engineers G. by the Superintending Engineers, while in the case of Assistant Executive Engineers, their confidential reports for the preceding three years would be wrirten in respect of their performance as Assistant Executive Engineers by the Executive Engineers. Thus at the point of time when in any particular year, the officers of the F. two streams meet for their ·seniority in _the grade of Executive Engi.neers, their confidential reports would not be by the same • officers or eve.n by officers of equivalent rank and it would be .almos 't

P.S. MAHAL v. UNION (Bhagwati, J.) 885 impossible to arrive at a comparative .assesment of their respective A merits for the ptlrpose of working out the seniority rule.in Paragraph 5(ii) of the Memorandum dated 22nd December, 1959: Moreover, in fact tliis seniority rul~ was never regarded as applicable in case of promotions to the grade of Executive Engineers and the procedure set ont there was not followed at any time while making promotions from the ·grades of Assistant Executive Engineers and Assistant B Engineers to the grade of Executive Engineers. It is, therefore, clear that the seniority rule set out in Paragrah 5(ii) of Memorandum dated 22nd December, 1959 could not be invoked for determining interse seniority between Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive , Engineers and' the petitioners could not legistimately found any argument c upon thaf seniority rule for the purpose of invalidating the seniority . list dated 14th August, 1975 and the Rules of 1976.

It is interesting to note that while the petitioners relied on Paragraph 5(ii) of the Memorandum dated 22nd December 1959, res- pondent Nos. 4 to 190 rested their argument on Paragraph .⁶ of this. .D Memorandum. They contended that the rotational formula adopted for determining seniority a: ongst Assistant Engineers and Assistant Executive Engineers promc <ed to the grade of Executive Engineers from and after 22nd December, 1959, 'Subject to precedence being given ;n bloc to Assistant Execeutive Engineers promoted to fill in E 86 carried forward posts of Executive Engineers, was in consonance with Paragraph 6 of the Memoranduni dated 22nd December, 1959 and did not in any way affect retrospectively the inter se seniority of the Executive Engineers promoted from the grades of Assistant Engineers and· Assistant Executive Engineers. We are afraid this contention is not open to respondent Nos. 4 to 190 in view of the decision of this Court in AK. Subraman's case and moreover as already pointed out by us while rejecting the contention of ·the petitioners based on Paragraph S(ii), it was the· common case of all the parties including the Assistant Engineers and the Assistant Executive Engineers promoted a~' Executive Engineers that the Memorandum d~ted 22nd December, 1959 was irrelevant for the purpose of determining the inter se seniority amongst the Assistant Engineers and Assistant .Executive Engineers promoted fr()m and after 22nd December 1959 and .neither the.seniority rule set out Jn Paragraph 5(ii) nor that set out .in Paragraph 6 wa~ applicable. But eyen so since full arguments have been advanced before us, we propose to consider the applicability of Paragraph 6 on merits. It is necessary. in order to appreciate the contention raised on behalf .

886 SUPREME COURT REPORTS ' . (1984] 3 S.C.R A of respondent Nos. 4 to 190 to examine t])e scope and ambit of Paragraph 6 of the Memorandum dated 22nd December, 1959 which reads as follows :

· "6. Relative seniority or Direct Recruits and Promotees: B The relative seniority of Direct recruits and of pro-. motees shall b!J determined according to the rotation of vacancies between direct recurits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion r~spectively in the Recruitment Rules." ·

This paragraph on its plain. terms laid down a rule for deier- mining the r.elative seniority of direct recruits and promotees in a grade to which appointments were required to be' made by direct 'o. reeruitment and promotion according to a certain fixed quota.· This rule of seniority obviously could have no application for deter- • mining inter se seniority in the grade of Executive Engineers, since both Assistant Engin>ers'and Assistant Executive Engineers were in- ducted ill the grade of Executive Engineers hy. promotion and Assis- tant Executive Engineers apointed in the grade of Executive Engineers did not bear the character of direct rec.ruits. It is, of course, true that · Assi~tant Executive Engineers wete initialy taken up as direct recruits in the grade· of Assistant Executive· Engineers in fact that was only method of entry into the grade of Assistant Executive Engineers- but when they. entered the grade of Executive Engineers, they did so by way of promotion just like the Assistant Engineers. There . F was, therefore, in the present case, no question of determining relative seniority· between direct recruits and promotees. Both the Assistant Engineers as well as the Assistant Executive Engineers were promotees to the grade of Executive Engineers and Paragn1ph .. 6 of the Memorandum dated 22nd December, 1959 had, therefore, no application for determining inter se seniority between thell) in ·G the grade of Executive Engineers.

We have considered the applicability of Paragraphs. 5(ii) and 6 of the Memorandum dated 22nd December, 1959 ·on merits and come~ the conclusion that the rule ol'seniority set' out in neither . H ofthese two .t>aragraphs could have any application. in the present case. But at the same time, we cannot escape the conclusion that by reason of clause 3 of the Memorandum dated 22nd December,

P.S. MAHAL v. UNION .(Bhagwati, J.) 887 A. 1959, the rule of seniority prescribed in the Memorandum dated 22nd June, '1949 stood repealed, except in regard to .determination of seni)lri~ of persons appointed to the grade of Executive Engineers 'prior to 22nd December, 1959. There was, therefore, no rule of seniority )aid down either statutorily or by any executive order or instruction for determining seniority amongst Executive · B Engineers promoted from the grades of Assistant Engineers .and Assistant Executive Engineers regularly· within their respective quota from and after 22nd December, 1959. But it is now well- settled as a result of several decisions of this Court that in the ·absence of any statutory rule or ·executive memorandum or order laying down a rule for determining seniority in a grade, the n·ormaJ c rule applicable would be to determine seniority on the basis of · length of continuous officiation in service.. Vid'e the observations of Palekar J. in -B.S. Gupta v. Union of India.(1) To the some ·effect we find the observations Krishna Iyer, 1., speaking on behalf of the Court in Chauhan v. Stale of Gujarat(•) where the learned D Judge said at page 1057 of the report :

''Seniority, normally, is measured by length of con ti- nnous officiating service-The actual'!s easily accepted as the legal." . Chandracl\ud, J., as he then was, also . reiterated the same. E

principle when he ·said in S.B. Patwardhan v. State of Maharashtra(•) that "all other factors· being equal, continuous officiation .in a non. fortuitous vacancy ought to receive due recognition in determining rules of. seniority as between persons recruited from different · sources, so Jong as they be long to the same cadre, dircharge similar F functions and bear similar responsibilities." 'The inter se senfority of Executive Engineers promoted from the grades of Assistant ~ , _1 Engineers and Assistant Executive Engineers regulariy within their • respective quota from and after 22nd December, 1959 was, therefore, determinable on the basis of !ength of continuous officiation in the grade of Executive Engineers and the Court· was, in the circums- G , tances, justified in A.K. Subraman's case in holding in. paragraph 1 of the summary of its co11clusions that "when Assistant Engineers (Class II) are initially appointed in a regular manner in accor- danee with the rules to officiate as Executive Engineer, their seriio.

(I) [1975] I s.C.R. 104 at 113. (2) [1977) l S.CR. 1037. (3) (1977] 3 S.C.R. ·775 at P•J• 800,

88& SUPRllME COURT REPORTS [1984] 3 s.c.R •.

rity in service in Gr.ade I will counHrom the date of their initial officiating appointment as Executive· Engineers was within their quota." It is undonbtedly irue that in reaching this conclusi~n the :Court proceeded on the assumption that ''the Memorandum dated 22nd June 1949 was clearly applicable" and equally jt must be con- B ceded that this assumption was erroneous· in so far as inter se seniority between Assistant Engineers and Assistant Executive •. Engineerrs promoted from and after 22nd December, 1959 .was copcerned, sin~e the ruJe. of seniority based on length of conti· nuous officiation enunciated in the Memorandum dated 22nd June,

1949. was repealed by the Memorandum dated 2~nd December,

1959. But it can hardly be disputed that the conclusion reached by the Court was correct in law, because in the absence of any specifi¢ rule of seniority governing determination of inte[-se seniority bet ween Assistant Engineers and . Assistant Executive Engineers pro· moted fro'm and after 22nd December 1959 · their inter~se seniority · ' ' was clearily governed by the rule of seniority based ·on length of D Continuous officiation. We do not think it ivould be right to assnme that .the Court in A.K. Subraman's case overlooked that ·the rule ofseniority laid down in the Memorandum dated 22nd .June, 1949 was ·repealed by the Memorandom dated 22nd December, 1959 and it is, therefore, quite possible that when the E Court said that "the Memorandum of June 22, 1949 will clearly apply", whafthe Court meant was that the rule of seniority based on lengih of continuous officiation would clearly apply for deter· mination of inter-se seniority between ·Assistant Engineers and Assistant Executive .Engineers promoted to the grade of Executive -Engineers. We 'may point out that in any event. the decision in F A.K. Subhrama11,'s case holding that the inter-se seniority bet· ween Assistant Engineers. and · Assistant Executive Engineers prornoted as Executive Engineers should be governed by the rule of seniority based on length of contin~ous offici~tion and that their inter-se seniority should be determined on the application of thi~ G rule of seniority, must be regarded as binding on the parties and it · is not open to the petitioners or .to the respondents to rai-se any con- tention contrary to. this conclusion reached by the Court; This conclusion, we may repeat, was not limited to Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers prior to 22nd December, 1959 but also covered Assistant E:ngineers and Assistant Executive Engineers promoted. subsequent to that date. right upto the date of the decision of the Court. We must, therefore, hold that, notwithstanding Rules :i(iii) (Ind 2(iv) of the ·

P.S. MAHAL v. UNION (Bhagwati, J.) 889'

Rules of 1976, the inter-se seniority between Assistant Engineers A and Assistant Executive Engineers promoted regularly within their respective quota upto ilth December, 1974 must be determined on the basis of length of continous officiation in the grade of Executive Engineers, subject of course to the length of continuous officiation in the case of Assistant Engil)ecrs being computed from the date· of their confirmation as Assistant Engineers. . 11

Before we proceed to consider grounds B and C- it would be conventions at this ·stage to ·deal with some of the contentions advanced by respondent Nos. 4 to 190 on behalf of the Assistant Executive Engineers promoted as Executive Engi~eers against the c va!ldity of the seniority list dated 14th August 1975 ;·n .so far as ce.rtain. aspects of ·that seniority list are concerned. Though the seniority list dated 14th August, 1975 was substantially in .favour of Assistant .Executive Engineers promoted as Executive Engineers, they were not wholly satisfied with ifand they attacked it in three respects. They urged that respondent Nos. l to 3 had egregiously D erred in formulating the seniority list ·dated 14th August, 1975 in as much as (I) respondents Nos. t to 3 had treated vacancies ari.sing on account of deputation of Executive Engineers to other organisa- tion or departments as vacancies to be filled up in accordance with the· quota and so also where an Assistant Engineer or Assistant Executive Engineer .was, promoted for being sent on deputation as·' Executive Engineer in another organisation or· department, respon· dent Nos·. 1 to 3 had treated such promotion as filling up of vacan- cy subject (o the quota rule:; (2) ·respondent Nos. l to 3 had inclu· ded, for the purpose of allocation of quota, also those· vacancies which arose on account of death or retirement of Executive Engine- F ers who were promoted from the grade of Assistant Engineers in excess ·of their quota and whose promotions were not regularised within their quota prior to their death or retirement, as if those vacancies were· fresh vacancies· governed by the quota rule and (3) while pushipg down Executive Engineers who were promoted from G the grade of Ass.istant Engineers in excess. of their quota and adjus- ting them within their quota in a subsequent year, respondent Nos. 1 to 3 had treated them as absorbeb not from the date when the • vacancy arose in their quota but from .Ist January of that year. This three-fold grlevaoce .made on behalf of respondent Nos. 4 to H 190 cannot be said to be wholly unjustified, We find that_ the seco- nd and third 'heads of grievance are well-founded while the nrst is not. Our reasops for saving so a~e. as fo1!ows,

890 . SUPREME COURT REPORTS [1984] 3 s.c.R •

A So far as the first head of the grievance. of respondent Nos. 4 to 190 is concerned, their argument was that on a true interpreta· tion of the judgment of this Court in A. K. Subraman's case, the quota i:ule was applicable only to permanent vacancies in t!ie posts,. whether permanent or temporary, included in the sanctioned stren· gth ·m the cadre of Executive Engineers "except sucjl vac~ncies as B were purely of a fortuitors or adventitious character" llnd since the vacancies arising on account oT depu.tation of Executive Engineers to other organisations or department could not be regarded as per· - manent vacancies but were vacancies -of fortuitous or adventitious character, they were not subject to the .quota rule and could not be c t.11ke1;1 into account for applicability of the quota rule. This argu- ment, plausilile though it may seem at first sight, cannot be su.stained. It is, first of all, necessary to clear the ground by pointing out that according to the judgment of this cQurt in A.K. Subraman's case, the qnota rule was to be applied· not with reference to the posts in the cadre of Executive Engineers but with reference to vacancies. in . • D such posts·. There might he more than one vacancy in a post in the course of a year or any other unit o(time aJJ.d it was with reference to each such vacancy that the quota rule had to be applied. Now a vacancy may arise in a post on account of death, retirement or resignation of the incumbent of the post or it may arise on account E of ·bis dismissal, discharge a reversion from the post or promotion to a higher post oi: by reason of his deputation to a11other depart- ment or organisation. Whenever, therefore, a vacancy arises in a post, whatever he the reason by which the vacancy is caused, it would have to be filled up by promotion of an Assistant Engineer or ·av Assistant Executive Engineer and the quota. rule would apply so. F long as the vacancy is· a permanent vacancy, that is to say, in the words of Palekar J. in the 1st Bishan SarupGupta's case, a .acancy which is not "for a few days or a few months" or otherwise adventi· tious". We have in these words of Palekar, J., adopted wholly and completely in A.K. Subraman's case, a negative definition of what may be regarded as a permanent vac~ncy for the purpose of. appli· G cation of the quota rule a~d it clearly shows that a vacancy which is • of a short duration arising on acc·ount of fortuitous or advel\,litous circumstances would not be regarded as permanent vacancy and in such a case, by reason of the very nature of the va<:ancy, there would be no question of making recruitment to the cadre as to attract the •. .H applicability of the quota rule. It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or for •. training or on deputation for a short period, it would be a fortui-

> P.S. MAHAL v. UNION (Bhagwati. J.) 891

tous Qr adventitious vacancy and tlie quota rule would not be attrac- A ted in case of such a vacancy. But wher~ a vacancy arises on account of the incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy liaving to revert, the vacancy would be subject to the quota rule, because. it would be a regular vacancy in tlfe post of B Executive Engineer (\nd the person promoted to fill the vacancy would be. an officiating Executive .Engineer who would continue as such without reversion until confirmed and his promotion would, · therefore, be by way of recruitment lo the cadre of Executive Engi- neers. Of course, it should be made clear .that the vaclmcy which . ·. attracts the applicability of the quota rule, is the vacancy in the post included in the sanctioned strength of tlie cadre of Executive Engi- ''\ neers and not the vacancy in the deputation post. There may be a vacancy in a deputation post in another department or ori;anisation and an Executive Engineer holding a post included in the sanctioned strength of the cadre of Ex,ecutive Engineers may lie .sent to such deputation post, but the vacancy which would call for the application bf the quota rule in such a case would be the vacancy arising in the· pest of Executive Engineer within the cadre by reason of the incum- bent of that post going to the deputation post and not the vacancy in the deputation post which would be filled up by the Executive Engineer going on deputation" It is,. therefore; apparent that what bas tq be considetec! for the applicability of the quota rule is a vacancy in a post included in the sanctioned ·strength of the cadre of.Executive Engineers ~nd the sanctioned strength; which. has to be taken into account, is· not merely the sanctioned strength of . the cadre of Executive Engineers in the Central Public Works Depart- ment btit the sanctioned strength of the cadre of Executive Engi- F neers in the entire Central Engineering Service, Class I. The sanctioned strength of the cadre of Executive Engineers in the Centr~l Engineering Service, Class I, may include not only posts of Executive Engineers in the Central Public Wor'ks Department but also posts of Executive· Engilleers in other departments and organi- ·sations. · G

Now, so far as the Central ~ . Engineering- Service, . Class . I, is concerned, the deputation of officers in various grades including the· grade of Executive Engineers is a normal feature. of the 'Service. The Central Public Works Department is an agency 9f the Centr~J H .. · Government operating .throghout Country. for construction, main- tenance and repair of all works .and buildings· financed from Civil

892 SUPREME COURT REPORTS (1984] 3.s.C.tl.

A Works Budget except for certain. departments which bad their own engineering units or which may get their Civil works executed through private agencies. The ofilr.ers borne ou the cadres of Chief Engineers, Superintending Engineers .and Executive Engineers in the · Central Engineering Ser;vice, Class· I, are therefore sent on deputation . to various departments and organisations and some of them are B also on deputation with the Government of Bhutan, Delhi Municipal Corporation, New Delhi Municipal Committee and various. other· public undertakings. · The normal duration. of such deputation is one to three years and it may even be extended beyond three years. The record shows that the ni)mber of Cl1ief Engineers, Superintend· 0 il,lg Enginee;s and Exec11tive. Engineers on deputation to various · departments, organisations.· and public sector undertakings has ·always been substantial and by way of illustration, it may be ) pointed· out that· there were as on !st January, 1975, 90 out of ~pproxin:iately 360 Executiv~ Engineers, 33 out of 80 Superin.tetiding Engineers and S out of 20 Chief Engineers on deputaiion. On an . .. D average, about 25 to 40% of the Executive Engineers are on deputa· · tion to various organisations, departments and public sector under-, takings and whenever any such Executive Engineers· are sent .on deputation and the vacancies in.the posts arising on account of such deputation are filled up by Assistant Engineers or Assistant Execu- ·E tive Engineers regularly se\ected through Departmental Promotion Committee,. such promotees have never bad .to .revert, because the deputations are for a minimum period of one year and in most · cases for three years·and they go on rotating. The vacancies arising in the posts of Executive Engineers orr account of deputation to F other departments, organisations and public sector undertakings ai:e, therefore, .Jong term .vacancies and cannot be characterised as vacancies of fortuitous or adventitious character and, consequently, according to the judgment in A.K. Subraman:s case, the quota rule must be held to be applicable with reference to such vacancies. ·~ This has always b.een ·the view taken by the Government ·of Ind.ia, G aSis clear from ihe letter-dated 19th qctober, .1971 addressed by the Ministry of Works and Housing, Government of India to the · Secretary,. Union Public j/;ervice Commission; where, we fihd the following observation :

"Jn accordance with the recruitment rules the posts H at' the level of ·Executive Engineers are to be filled by promotion of Assistant Executive Engineers and Assistant En~ineers iii the ratio of 2: I, ·. This ratio is ~pplic~ble tq

~. ~. " P._S. MAHAL v. UNION (Bltagwati, J.) ~93

both permanent and· temp~rary .V~c!incies including the · deputation. vacancies". (Emphasis supplied) · ·

.It is significant to.note that the view that deputation vacancies being long term vacancies should be regarded as . permanent vacan-· ~ ci;s for ·the a~pl~cability of the quota '. rule prevailed with' the . ~.oven1ment of India as . far back as 19th October 1971 long before B the present c~ntroversy arose between the parties and even· prior to the decisions. in Bishan Sarup Gupta's case~ and A.K. Subraman.'s case~ . · We find that this view was reaffirmed by the _Government of India in the Office Memorandum dated 30th December. 1976 issued by the ·Department of Personnel and Administrative Reforqis, Cabinet . c Se.cretariat \Yher'e it has been stated as foJlows under the heading "~etermination of Regular V~c·ancies":- .

". ' . ciu j~· essential that the number of vaca~cies . in respect ·of which a pan.el. is to be pr~parfd _by a o:P.C. . - D . should be estimated a~ accurately a.s possible. For this purpose the vacan.ties to be taken into account should be t.be clear vacancies arising in post/ grade/scfrvice due 'to · death, retirement, resignation, regular long term · promo· tion, of incumbents of one. post/grade to higher. post/ .-.. 'grade and vacancies arising from creation of additional E 'po~ts ' on a long term ba~is and th~se arising:out of depu· tation.' As . regards vacancies· arising ·out of deputation it is clarified that for . the. purpose of drawing up a . s~lect list. for promotion, vacancies arising· out of deprita- p tio~ for periods more than one year should be taken into account~ due note however. ~eing kept also o.f the number of the dt:putationists likely to return ·to· the cadr"e and who , gave to. be · provide'd for. Purely short term .vacancies • arising. as a resu)t of officers proceeding on lea_ve, on I . .deputation for a shorter period, training etc., should not G . . be taken into account for the purpose o~ -preparation. of ( 1 . a panel":

The same ·stand .has been consiste~tly taken. by th~ Governme~t l of India.in the various affidavits fiied on its behalf' in these proceed- ~gg · as ".also in the · miscellaneous proceedjngs arising in A.K. '!;ubi:amap's case. W_e may usefully reproduce the following para· ff graphs from the Counter-Affidavit 'filed on behalf of the Government oflndia in C.M.P.No. 6689 of 197S'in· A..K.. Subraman's case:.

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

"8. With reference to paragraph 2(a),J submit that this Hon 'ble Court, no doubt, stated that all the vacancies except fortuitous and adventitious ones in the· sanctioned strength in the cadre have to be taken in.to account. So far as the deputation vacancies are concerned, the position is B that the post of.the borrowing a.uthority tow. hich a deputa- "'!' tll . tion is made is certainly outside the cadre of the Central. . . Engineering _and Electrical Engineering.._ Service, but the consequential vacancies which arise because of the deputa· . tioil are certainly vacancies in the cadre. The deputations are generally for a periocl of a year and more and the con- c . sequential vacancies are also long term vacaru::ies, which cannot be ~aUed for.tuitions or adventitious". "15. With reference to paragraph 4 (8) (I) (a); I say that the post in the '' borrowing department is certainly a post outside .the sane- . , .tioned strength of the C.P.W.D. However, deputatiol) of an officer belonging .to the C.P.W.D. to fill such a post D causes a vacancy in the C.P.W.D ..•It is this vacancy which h~s been added and not then post on tlfe borrower's estab. lishment. This has been done because in our case, the quota allocation is linked to vacancies and not to post ; of course, the' vacancies must be in posts in the cadre". . , . • .E So also the Union of India reiterated the same view .in . the Counter Affidavit filed on its be.halfin C.M.P. No. 2663 of 1975 in A.K. Subraman's case : · "Vacancies : The quota system, based on w\llch the date of commencement of the regular appointment of eithdr side' had· to be fixed,, in accordance with the direc- tives of the Hon'ble Court, had been introduced by the-~ Central Engineering Service (and Central Electrical Engin" - · eering Service) Recruitment·• Rules promulgated on 25 ..8.1949... Hence the vacancies had to be identified right from this date. Vacancies in ihe grade of Executive Engineers had occurre!l not only due to death, retirement, resignation etc. • ill the grade· but. also be.cause of promotion (to higher >-- , grade) dismissal from this or higher grades, reversion to · ., H lower grades and degutation to other ·organisations like the Delhi Development Authority; undertaking, he retains his lien · on the post in th.e parent department and he has !I

P.S. MAHAt v. UNION (Bhagwati, J.) 895 >-. right to come back to that post which he can exercise at any time .and hence the vacancy caused by his deputation cannot be regarded as a p~rmanent vacancy. liable to be • filled by regular . recruiment to the cadre of Executive .Engineers. It was urged that so long as an Executive Engineer who has "gone on .deputation retain~ his lien on the post in the parent department, that post canno.t be filled B by promotion of· another Assistant Engineer or Assistant Executive' Engineer by way of substantive recruitment to ·.the cadre of Executive Engineers, because two officers cannot hold a )ien on the same post simultaneously. We do not ' think this argument is well·founded. There is here no question of violation of the ba&ic principle of ser- vice jurisprudence that two officers· cannot simultaneously have a· lien on the .same post. .It is·signifipant t,o note, and ·this was common ground b;.tween the parties, that the· vacancy which atrracts the applicability of the quota rule is not {)nly a vacancy in a permanent post but also a vacancy D iii a temporary post and obviously no Executive Engineer c:i.n haye a lien on a temporary post and therefore, exting- urshment of a lien on a post is not ne"cessary in .order that there should be .an available vacancy for the. applicability of quota rule. It is now settled·as a result of the decision E A.K. Subraman's case that the quota rule is to be applied at the time of initial other Central or State Government undertakings or Departments, UN assignments etc. none of which could be called fortuitous or adventitious be- cause they were all long term· appointments covering a . period of one to two years or. more.· F

Calculafions of all such vacancies with reference to the ca so and .circumstances as called out from the original papers right from 25.9.1949" was a herculean task and it was difficult to he sure · that there had been no errors ~r . G omissions. Hence, to· be sure, the answering respondents decided to treat each long term promotion to the grade of Executive ·Engineer, for whatever reasons, as a vacancy, oli the assumplion that such a promotion could not have been made without the existence o~ a vacancy" .. . "

- -< It is thus clear that the vacancies in the posts of Executive 'Engineers arising on accounf·Of deputation of Executiv1; Engineers

896 SUPREME COURT REPORTS [1984] 3 s.c:r •

A to other·. departments~ organisations and public undertakings for a period of one. or more years were long term vacancies and they .could not be regarded as· fortutitous or adventitious iu character and . ·hence . they were subject to the quota rule. .

But the answer sought. to be given on behalf of respondents B Nos. 4 to 19.0 to repel this conclusion was that when an . Executive Engineers goes on deputation to another department, organisatiQ.11 .; or .public sector recruitm.ent in an officiating capacity to the cadre<. of Executive Engineers and not at the time of confirmation. It' is, therefore, not necessary ~hat the lien of an officer on a ·post of Executive Engineer must be extinguished before any promotion to •that post can be made jn accordance with the quota rule, Even where a confirmed. Executive Engineer is · promoted to the. po~t of Superintending Engineer but continuous to have his lien on the post of Executive Engineer, a yacancy wollld undoubtedly arise in . the post of Executive Engineer by reason of his promotion and such vacancy would clearly be a permanent vacancy liable to b.e filled according to the quota rule. So also a vacancy attracting ihe applicability of the 11uota rule. would· arise where an Assistant Engineer or Assistant Executive Engineer regularly promoted with· in his lawfui quota dies or retires before confirmation .. The occur- rence of a vacancy in the.post of Executive Engineer inviting the application•of the quota rule has, therefore, nothing to do With the · extinguishment of lien on the. post; The argument of respondenf+ Nos. 4 to 190 proceeds on the assumption that ·promotion to the' post of Executive Engineer contemplated under the recruitment rules can be· made only when there is no liep of any other officer on that post,· for otherwise there will be two. officers having lien on . fl the same post. But this assumption is . wholly fallacious, because promotion ·according to the quota rule envisaged in the R~cruit­ ment Rules is, as pointed out in A.Ko Subraman's case, initial promotion in an offici~ting capacity and has nothing ta do w~h confirmation. The contention of respondents Nos. 4 to 190 woillc!l. G have had considerableforce·if promotion to the cadre of Executive Engineers were dependent' on confirmation and the quota rule were applicable at the stage of confirmation. But this position stands compietely negatived by the decision. in A.K. Subraman's. case. Therefwe, Whenever there is a permanent vacancy, that is· · t~ say; a long1erm vacancy in a post of Executive Engmeer, it . II would have to b~ filled according to the· quota rule irrespective .of , the fact whet.her there is any. officer having a lien on that post,. It ,

p .s. MAHAL y. UNION (Blzagwati, J.) .891

is true that a confirmed Executive Engineer who goes on deputa- A tion may revert to the post .on which he has a lien and so also an ·officiating Executive 'Engineer who goes on deputation may revert back on termination of his deputation and theoreticaUy, i11 either case, an Assistant Engineer or Assistant Executive Engineer who is promoted to fill the vacancy arising on account of deputation 8 may have to revert, but in actual practice and rt'ality,. not a single Assistant Engineer or Assi.stant Executive Engineer promoted as Executive Engineer to fill a vacancy arising ~n account of dep~ta­

. ' tion, has had to revert, because· deputation is a normal feature in this service and 20 to 25 per cent of the Execvtive Engin.eers are continuously on deputation. Even if one · Executive ,Engineer c com.es back on termination of his deputation, another has to be· sent in his place and .the deputatio11s thus go on rotating wi,th the re.suit thai the vacancy in· the post of Execvtive Engineer arising on account of deputation does not cease and the .Assistant Engineer or Assistant Executive Engineer promoted as Executive Engineer to fill tlie vacancy does not ever have to revert and. consequently, Q the vacancy filled by him is ·really and truly· a permanent or long term vacancy which has to be filled according. to the quota ;ule. In fact, if the quota-rule were l)ot to be ,applied with reference to such a vacancy, the position would be that w]lenever an Executive Engineer goes on deputation for a period· .which may extend to E .anything between three . to five years, the Central Government would be entitled to ijromote an Assistant Engineer ignoring the claims of Assistant Executive Engineers· and this would· be. totally arbitrary in a situation, where, as mentioned above, 20 to 25 per cent of Executive.Engineers are on deputatiou. F

But then it was contended on behalf of respondents Nos. 4 to 190 that even if a vaca.ncy arising by reason of an. Executive Engineer going on deputation were regarded as ·.a permanent ").-• vacancy attracting the applicability of the quota rule, the position .would be .different where an Assistant· Engineer or Assistant G Executive Engineer Was promoted for being. posted as Executive Engineer in· a deputation post. To such a promotion, it was urged, the quota ~ule' would not arPlY• because the promotion in' sq.ch a case would not be to fill a po;t in the sanctioned strength of the . cadre of Exepµtive Engineers but would be to fill a deputation post of Executive. Engineer in an:Qther department,. organisation or H public. sector imdertaking. This argument; plausible though it may seem at first sight, is in our opinion not sustainable. When a

898 SVPREME COURT REl>ORTS [1984] 3 s.c.R..

department, organisation or public sector undertaking. requests the C~ntral Public Works Department to make available the services · of an Executive Engineer on deputation, The Central Public Works . Department has two options available to it : either to send an Executive Engineer . who ·is occupying a post in the cadre of B Executive Engineers, whether confirmed or on officiating basis or to promote an Assistant Engine~r or .Assistant Executsve Engineer as Executive Engineer and straightaway send hi111 outside to the depu: talion post. Now if the former mode of proceeding· could lead to a vacancy attracting the applicability of the quota, it is difficult to < • appreciate how the latter mode of proceeding should not lead .to a • c similar result. In both cases, the ultimate result would be pro· · · motion of an Assistant· Engineer or Assistant Executive Engineer as Exe~utive Engineer against demand for . deputation. Where an Assistant Engineer or Assistant Executive Engineer is promoted as · Execqtiv'e Engineer and immediately sent t⁶ a deputation· post ii) another department, organisation or public sector undertaking, D whaf really happens is that in the eye of law, a pµst is temporary created in the cadre of Executive Engineers to which the Assistant Engineer or Assistant Executive Engineer is promoted and then sent on deputation. Obviously, an Assistant Engineer or. Assistant ·Executive Engineer cannot be promoted . directly to the post 0f Executive Engineer in another departi;ient, organisation or public sector undertaking : he can be promoted only to a post of dxecutive Engineer In Centrai Engineering Service Class I and then asked to go on deputation .. Of co11rse, an As~istant Engineer ·Or Assistant Executive Engineer can be directly sent on deputatiort .to the post of Executive Engineer in another department, organisation or public sector undertaking without being promoted. as Executive Engineer in his own department and in such a case there will be no question of filling a vacancy according to the- quota rule. ·The ·Assistant Engineer or Assistant Executive Engineer who goes . on deputation as Executive Engineer fo another department, organi· ,,1 sation or public sector undertaking would in such a case continue G· to remain an Assistant Engineer or Assistant Executive Engineer in his own department, but would be merely occupying the post. of Executive Engineer in the other department, organisation or public sector undertaking as a deputationist and on the termination of his deputation, he wo<uld revert. as Assistant Enginee.r or Assistant' H Ex.ecutive Engineer in .his own depa~tment. Such a deputation cannot be regarded as filling Of a vacancy in the post of Executive . :Engineer in the Central Engineering Service Class I so as to attract

P.S. MAHAL v. u.NION (Bhagwati, J.) 899. > the applicability of the quota . rule. But .when· an Assistant A Engineer or Assistant Executive Engineer is promoted as Execut.ive Engineer in his own department .and simultaneously With such promotion, he is sent on deputation to another department, orga· nisation ·or public .septor undertaking, he goes on such deputation as Executiv~ Engineer, so that if for any reason his deputation comes to an end, he reverts to his own department as Executive B Engineer and not as Assistant .Engineer or Assistant Executive Engineer. The petitioner filed before us several orders of pro· .• motion of Assistant Engineers as Executive Engineers for being sent on deputation to other departments or organisations and these orders clearly showed that the Assi.stant Engineers in. respect of whom these orders were passed, were promoted· as Executive c Engineers and then, simultaneously, under the. same orders, sent on deputation to other departments or organisations. Obviously, in cases of this kind, the promotion of the Assistant Engineer or Assistant Executive Engineer would be to a post in the cadre of Executive Engineers and it would be subject to the quota rule. The D. present contention of respondents Nos. 4 to 19_0 seeking exclusion of deputation -:acancies.from. the applicability of the quota rule must, therefore, be rejected, provided bf cour.ge the promotion of the As.sistant Engineer or Assistant Executive Engineer to .a deputation vacancy is a regular promotion, that is, after selection by the Departmental Promotion Committee and. is· not an ad hoc .E promotion.

Respondent Nos. 4 to 190 are however on firmer ground. in regard to the .second head of complaint urged by them against the validity of the seniority list dated 14th August, 1975 It is true that F. in preparing the seniority list dated 14th August, 1975 respondent · Nos. 1 to 3 included, for the purpose of allocation of quota, ·also those vacancies which arose on ·account of death or retirement of Executive Engineers who were promoted from the grade of Assistant Engh,eers· in eitcess of their quota and.whose· promotions were not regularised by absorption within their quota prior to their death di' G as retirement and treated these vacancies if they were fresh vacan· . cies · governed by the quota rule. This was clearly an error on the part of respondent Nos. 1 to 3. It is difficult to see how a vacancy in the post of Executive Engineer which, according to the quota rule, is aliocable to an Assistant Executive Engineer but which is filled up H by irregular appointment of an Assistant Engineer c~n be treated as · a fresh vacancy when . . the Assistant Engineer irregularly promoted

900 . SUPREME COURt REPORts (!984] 3 S.C.!L

.. P.s. MAHAL v. UNION (Bhagwati, J.) 901

got if all the 8 vacancies allocable to Assistant Exe.cutive Engineers i~ the year 1956 \Jad been filled by promotion of :Assistant Executive Engineers and there had been no irregular promotion of 6 Assistant Engineers. Thus the Assistant Engineers would gain two· more vacancies within their quota.by reason of irregular appointment of 6 Assista.nt Executive Engineers. That would be allowing Assistant · Engineers to profit from· irregular :appointments which result can neverbe countenanced. We must; therefore, accept the contention of respondent Nos. 4 to 190 under the. second head ofcomplaint. • • The third head of complaint urged on behalf of respondent Nos. 4 to 190 must also likewise be held to be well-founded. Respon- dent Nos. 4 to 190 are right in contending that while pushing down Executive Engineers promoted from the grade of Assistant Engineers in ·excess of their quota and adjusting them within their ·quota in .a subsequent year, respondent Nos. !. to 3 must treat them as absorbed from ti)e date ·when a vacancy in t):lat year arises in the quota of ,\ssistant Engineers and not on a notional basis from !st 'January of . that year. What the decision in A.K. Subraman 's case requires is that Assistant Engineers promoted as Executive Engineers in excess of their quota must be pushed down and their promotion must be regularised by absorption when tl\le within their quota in a subse- quent year and therefore they can be adjusted only in a vacancy which arises in that year and is allocable to the quota of Assistant Engineers. There is nothing in the decision in A.K. Subraman~ case which warrants that when Assistant Engineers promoted in excess of their quota are pushed dowh and absoroed within their quota i.n a subsequent year, their absorption should be reckoned nationally from 1st January of that year. What respondent N'os. 1 to 3 have done is that all Assistant Engil)eers who had been promoted in excess of their quota and who having been pushed down were entitled to be·. abs<)rbed within their quota in a particular year, are treated as · absorbed from !st January of that year and placed en hloc senior to the Assistant Executive Engineers promoted tn that year within their quota. The.re can be no doubt that respondent Nos. I to 3 were not entitled to determine seniority on this basis. This Assista~t Engineers promoted in excess· of their quota and· therefore pushed down· for · absorption within their quota in a subsequent year could be absorbed . only in a vacancy arising in that year and allofable to the quota of Assistant Engineers. ·

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

· Re : Ground B

This ground of challenge i.s clearly qnsustainabJe lmd must be rejected. It is true that the Rules of 1976 have been brought into force with effect from 10th December, 1974'.bui in rules 2(iii) and 2 (iv) they lay down a rule of seniority. affecting Assistant Engi- . neers and Assistant Executive Engineers . promoted as Executive Engineers reguhrly within their respective quota from and after • 22nd December, 1959. It iS therefore not possible to say as a matter of plaih grammatical construction that the Rules. ~f 1976 cannot affect. tlie ·petitioners and other Assis Lant Engineers promoted ·.regularly within there quota prior to 10th December, 1974. The question ·1;vould however remain whether Rules 2 (iii) and 2 (iv) of the Rules of 1976 in s⁶ far as they lay down a rufo of senior;ty · different from the .rule of length of continuous offiiciation.for Exe- cutive Engineers promoted fro:n and after 22nd D~cember, '1959, are constitutionally valid. This is the question which we shall proceed to consider under Ground C.

Re : Ground C.

We have already pointed out that though the Rules ofl976 havo been broug1t into force with· effect from. IPth D~cem'Jer 1974, th•y do notlhve the effect of over-riding the d~cision in A.K. Subraman's case directing th' Government to amend and revise the Syniority list. so. as to fix int.er se seniority between. Assistant Engi- neers and. Assistant Executive Engineers promoted regularly within· iheir Nspective quota up to 11th Docember 1974, by applying the rule of seniority based on length of continuous officiation. On this view, Rules 2(iii) aq,d 2(iv) of the Rules of 1976, in so far as they provide for seniority being given en bloc to the Assistant Executive Engineers promoted to the 86 . carried forward posts of Ex,ecutive · . Engineers and apply the rotat;onal formula for the pmp~se of deter- mining seniority amongst .Assistant Engineers and Assistant .Executive Engineers promoted to the ~ubsequent vacancies, must be held to be ineffective "qua Assistant Engineers & Assistant .Executive Engineers promoted up to 11th December, 1974 and so far as these Assistant Engineers and Assistant Executive Engin•ers are concerned, their i1lter se seniority must be held to be governed by the length of.conti· · nuous officiation in the grade o( Executive Engineers. But the ' . q\lestion wou_ld still survive whether inter se seniority be.tween Assistant Engineers and Assistant Executive Engineers ·promoted subsequent to 11th December, 1974 would have to: be determined in a~cordance with th~ rotational rule of seniority.· set out in Rule

P. s, MAHAL V· UNION (Bhagwati, J.) ..

2(iv) or this rotational rule of senirioty is unconstitutional and void as offending Articles 14 and 16 of the Costitution, It may also be considered in the alternative, on the assumption that Rules 2{iii) and 2(iv) of the Rules of 1976 govern the determination of inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd December, I 959 despite the decision in A.-K. Subraman case, whether tnese rules can success- fully meetthe challenge of Article I 4 and 16 or they would be liable to be. condemned as constitutionally invalid

We may firill consider the constitutional validity of Rules 2(iii) and 2(iv) of the rules of 1976 in. so far as they affect the inter se seniority of Assistant Engineers and Assistant Executive Engi,- neers promoted regul~rly within their respective quota from and after 22nd December, 1959. Now the position which obtai- ned on 22nd December 1959 was that there were 86 _Assistant. Engineers who had been promoted m excess of their quota and correspondingly there was short-fall of: 86 in pre-motions of Assistant Executive Engin'eers. W~ are no1 sure whether in the light of what we have said . above, the excess in promotions of. Assistant Engineers and the deficiency in promotions of Assistant . Executive Engineers would stand redu~ed, but that would not make any difference so far as the present question' is concerned and· we " ' shall therefore proceed on the• footing that the excess in"promotions of Assistant Engineers and the short-fall in' promotions of Assistant Executive Engineer s was 86. The question. 'is whether, consistently with the constitutional requirement, of Articles 14 and 16, en· bloc seniority could be given to the Assistant Executive Engine~rs promoted to fil,l the 86 vacancies allocable to the qu9ta of Assistant Executive Engineers and remaining unfilled by them up to 22nd December 1959. These 86 vacancies were under Rule 2(iii) directed to be carried forward and filled by Assistant Executive Engineers promoted on or after 22nd December 1959 and the Assistant Exe- cutive Engineers no promoted were"given seniority en bloc. The petitioners objected to this movision in Rule 2(iii) for carry forward of these 86 vacancies and contended thatthere could be no carry forward of any vacancies which were not filled by Assistant Exe- cutive Engineer~ and so promotions of Assistant Executive Engineers could be made to fill such vacancies as from the- date when they · arose in any particular year. This objection raised on behalf of the petitfoners is partly sustainable and partly. not. Where the quota rule is a statutory rule which h,as to be scrupulously observed, the vacancy which according to the quota rqle is allocable to promotees

SUPREME COURT REPORTS (198 4] 3 s.c'R ..

from one source cannot be fllled by a promo tee from· another source . and if, notwithstanding the quota rule, the. vacancy is filled by a promotee from that other source, such promotion would be irregular and as pointed out above·, the vacancy would continue to remain a vacancy, Hable to be filled. by a promotee from the first mentioned source.· Ii would not be strictly accurate to say that in such a case · the vacancy is carried forward in the sense in which. that exepression has been used in T. Devda!an v. Union of India(1). llt was pointed · out by this Court in Mervin Cou/inhs v. The Co/lee tor of Customs, Bomb.ay (2) : " ...... in the case of the carry forward ruk certain ·quota is fixed annually for a certain ~lass of persons and it is carried . forward from· year to year. This is.very different ,from a case where · a service· is qivided into.two parts and there are. two sources of recruitment, one of promotion and the othe.r ·by direct recruitment. In such a case the whole cadre .of a particular service is ·divided into two parts· and· there is no question of carrying. anything forward . from year.to year in (he matter of annual intake". These observa- tions were quoted with approval by a Bench of Five Judges of this ·Court in G.D. Kelkar v: Chief Collector of Imports and Exports(a) . . What therefore happens in such a case is that the . vacancy which is ~ro temporc irregularly occupied by a promotee f:om another source · remains available for being filled by a protnotee from the source to . ·which the vacancy belongs'and in that sense,.it may loosely be said that the vacancy i.s·carried forward from the year in which it arose to a subseqifent year in which it is properly filled by a promotee .from the right source. This is precisely what Ray, C.J. speaking on . behalf of the Court in V. S. Badami v. State of Mysore('> said at page 823 of the Report :

" ...... if promotions are made·tcJ vacancies m excess of the promotional ·quota, the promotions. may no.t ·be total illegal ·but would be irregular. The promotees cannot claim any right to hold the promotionafposts unless the vacancies '_..,_--.: fall within their quofa. Ifpromotees occupy any vacancies. · "which are within the qu"1a of direct recruits when direct recrui.tme:tit takes place the direct .recruit will occupy the vacancies within their quota. · Promotees who were occupy·: ' ing the. vacancies· . wirhin . the quota of direct recruits will

(I) AIR [1964) S.C. 179. (2). [1966] 3 SCR 600. (3) Jt 967] 2 SCR 29. · (4) .[1976] 1 SCR 815 .. •

P. s. MAHAL v. UNION (Bhagwati, J.) 905

either be reverted or they will be absorbed in the vacancies A

. ' . within their quota in the facts . and circumstances of a case."

We must therefore hold. that Respondent Nos. 1 to 3 were right in proceeding on the basi~ that 86 vacancies allocable· to. the · quota of Assistant Executive Engineers remained unfilled as on 22nd B - +. December, 1959 and were available for being filled by Assistant Executive Engfoeers subsequent.to that date.

But the question arises whether the Assistant Executive Engi- neers promoted to fill these 86 vacancies which were, to use the expression in Rule 2(iiil, carried forward from the period prior to c 22nd December 1959 could be deeme.d to have been promoted from

- the dates whert tnese 86 vacancies arose or they could. be said t9 have been promoted only from the· date.s of their actual appointment. Now obviously there ·could not be any appointment of Assistant Executive· Engineers to these 86 vacancies with retrospective effect and they must be taken to have been promoted to these 1l⁶ vacancies D only from.the dates of their actual appointment and from no earlier dates. Tf that be. so, it is difficult to appreciate how, consistently with the mandate of Articles 14 and 16 of the Constitution, an Assistant Executive Engineer appointed io one of these 86 vacancies could under . Rule 2(iii) be. given seniorit:,; as if he were promoted to that vacancy.on 22nd December 1959, though he might in fact have , E been promoted years later and on this basis given precedence over Assistant Engineers promoted regularly within their quota long prior to theactual.proril.otiol). ofsuch Assistant Executive Engineer. The consequence of giving effect to Rule. 2(iii) providing en bloc seniority to the Assistant Executive Engineers promoted to fill these 86 vacancies . would be that a lar-ge number of Assistant Engineers though promoted regularly within their quota years before the actual promotion of such Assistant Executive Engineers would become · junior to ·such Assistant Executive Engineers and their promotional opportunities would be seriously prejudiced .. In fact, they would . have to wait until the Assistant ·Executive Engineers promoted to these 86 vacancies were promoted further as Superintending Engi- • neers and then only they would have a chance of being considered fot further promotion and .even such chance would recede and be reduced to almost nil.if the rotational rule of seniority were to be applied irt respect of promotions to subsequent vacancies as set out in Rule 2(iv}. This would become amply clear ·if we look at the chart Annexure I to the writ petition which reproduces the seniority list d:ited 14th August 1975 along with other particulars relating

906 SUPREME COURT REPORTS • [1984] 3 s.c.R. A . to the Assistant Engineers and Assistant. Eitecutivc Engineers promoted as Executive Engineers. The .Assistant Execµtive Engi- neers promoted to these ,86 'carried forward' vacancies figure in the seniority list dated 14th Augusn975 at Sr. Nos. 100 to 185 and the particulars given in regard to them 'in the chart Ex. I show that though the Assistant Executive Engineers at Sr. Nos. 122 to 185 B were promoted (IS Executive Engineers after 1962, they were placed higher h seniority than petitioner· No. 1 who was as Assistant Engineer promoted as Executive Engineer and absorbed within his legitimate . quota in .1962 and so also the Ass.istant Executive Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were c given seniqrity above petitioner No. 2 who was an Assistant Engi- neer promoted as Executive Engineer and absorbed within his ·• lawful quota in 1966, . Rule 2(iii) · in ·so far as it gives en bloc seniority to the Assistant Executive Engineers promoted to these 86 vacancies irrespective of the date when they were actually promot- ed and pushes down in seniority Assistant Engineers· though .. )

D p'romoted regularly within their quota prior to the- actual promotion of such Asstt. Executive Engineers, thereby prejudicially affecting their · promotional opportunities, must therefore be held to be violative of Articles .14 and 16 of the Constitution.

We find that rule 2(i'1) also suffers from.the same infirmity, E It provides for rotational rule of seniority based on. the prevailing ,¥

· quota for determining inter se seniority between Assist.ant Engineers . and Assistant Executive Engineers promoted to the grade of Exe· · cutive Engineers from and after 22n~ ·December 1959 subject to en bloc seniority being given to the. Assistant Executive En$ineers • promoted'- to the 86 'carded forward' vacancies as set out in Rule ·F 2(iii). Obviously, if Rule 2(iii) providing for en bloc seniority to be given to the Assistant Executive Engineers promoted to the 86 'carried forward' vacancies is unconstitutional and void as held by us in the .preceding paragraph of this judgment, it mu;t follow that· the inter se seniority between Assistant Engineers and A;sistant .. Executive Engi;,eers promoted from.and after 22nd December 1959 G · would be governed wholly by ·the rotational. rtile of seniority set out · in Rule 2(iv). Now there can be· no doubt that a rule of seniority . based . on rotation of vacancies according fo the quota prevailing at the time. would be constitutfonally acceptable· if the qu~ta nik were strictly implemented, barring minor deviation.s. It is well settled as Hl a result of. several decision of this Cou{t that there· is nothing . inherently wrong in working out the quota rule. by adopting .the •• · rotational · rule of seniority. But, as pointed out by this Court in

P. s. MAHAL v. UN!ON (Bhagwati, J.) 907

N.K. Chauhan v. State of Gujarat (supra) quota is not 'so inter-locked with rota that where the former is expressly prescribed, the latter is impliedly inscribed". The quota rule does not inevitably invoke the appfoation of the rotational rule of seniority. Even where a quota is prc~cribed for recruitment from different sources, there may t be different modes prescribed for determining seniority of officers on entry into the cadre. In fact, right from 25th August, 1949 when the quota rule was introduced upto 22nd December, 1959, the seniority amongst Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers was governed not by the rotational rule by but the length of continuous officiation. It is there- fore obvious that even where there is a quota rule governing c. recruitment to a cadre from differ~nt sources it is not necessary that there should be any particular rule of seniority. The Government ·may in its wisdom adopt an appropriate rule of seniority which may be base'!! on length of continuous officiation or may follow a roster arranged in conformity with the quota rule so that seniority may be determined according to the rotation of vacancies under the quota rule. Th·'re may also be any other appropriate rule for determining seniority in a cadre. Iiideed, a• pointed out by Krishna Iyer, J. in N.K. Chauhan's case, myriad ways can be conceived "for deter- mining seniority of officers on .entry into a cadre." But whatever may be the rule of seniority adopted by the Goverrncnt, it is well settled that it must satisfy the best of equality enshrined in Articles 14 and 16 of the Constitution. The question in each case would be whether on the facts and circumstances of the case, the rule of senioritv prescribed by the Government meets the challenge of the constitutional provision enacted in Articles 14 and 16. F We have already pointed out thattlierc is no inherent vice in the quota rule being operated through the rotational rule ofseniority. Where the rotational rule of seniority is adopted, the relative senio- rity of promotees from different sources has to be determined on the basis of a roster maintained in accordance with the quota rule, so that when promotion of an officer is regularly made wi.thin his quota, G he is fitted into the vacancy'reservd for promotees from his sowce and his seniority is reckoned from the date when such vacancy arose. But this rotational rule of seniority can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be material but as pointed ll out by Palekar, J. in the Bishan Swarup Gupta's case, "if there is enormous deviltion, other considerations· may arise". If the rota-

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

A tional rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed. The application of the rotational rule of senio- rity when the~e is large deviation from the quota rule in making promotions is bound to create hardship and injustice and result in impermissible discrimination. That is why this court pointed out B in A. K. Subarmans's case that "when recruitment is from two or several sources, it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the Constitution ,;, ......... It is the unreasonable implementation of the same which c may, in a given case, attract the frown of the equality clause." The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would"be grossly discriminatory and unjust to give effect to the rotational rule D of seniority. We agree wholly with the observation of D.A. Desai, J. in A. Janardhan v. Union of India(!) that "the quota rule is linked with the seniority rule; if the first breaks down or is illegally not adhered to, giving effect to the second would. be unjust, inequitous and improper". This was precisely the reason why the Court in the first Bishan Sarup Gupta's case held that with the collapse of the .. E quota rule, the rule of seniority set out in Rule l(f) (iii) also went.

Now in the present case the record shows that there has been enormous deviation from the quota rule in the promotions of , Assistant ExecutiveEngineers and such deviation has continued from year to year over a period of almost 25 years. We have in an ear- lier part of this judgment adverted to the fact that as on 22nd December, 1959 there was a short fall in the promotions of Assistant Executive Engineers to the extent of 86, because the quota rule had not been properly implemented from 1953 up to 22nd December, 1959 and promotions of Assistant Executive Engineers had not been effected according to the quota applicable to tl)em. It is interesting to note that even after 22nd December, 1959, the quota was consis- tently breached from year to year except for four or :five years and G there was massive under recruitment of Assistant Executive Engi- neers, with the result that as on 31st July, J975, the cumulative shortfall in promotiom of Assistant Executive Engineers was 206 while there was corresponding excess in promotions of Assistant H (I) Cl\ No. ~~O of 1980 decided on 26t~ i\wil· IQ/!~

P. s. MAlfAL v. UNION (Bhagwati, J.) ; Engineers to the extent of the same number. Though there was A such large deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Asstt. Engineers npto 31st July, 1975, no attempt was made by the Government to set right this imbalance by stepping up the recruitment of Assistant Executive Engineers in the subs•quent years so as to restore the B' balance in the composition of tho cadre of Executive Engineers. On the co'trary, the under recruitment of Assistant Executive Engineers continued uninterrupted and by the end of f981 the short-fall in the promotions of Assistant Executive Engineers increased to 247 with corresponding excess in the promotions of Assistant Engineers. This enormous deviation from the quota rule on account of massive c under recruitment of Assistant Executive Engineers has led to grave distortion and it is difficult to see how, in this situation, the rota- tional rule of seniority can be applied consistently with the mandate of equality enshrined in Articles 14 and 16. The rotational rule, of seniority must obviously break down when there is such massive departure from the quota rule regularly from year to year leading D to continuously increasing deficiency in promotions of Assistant Executive Engineers and corresponding exces~ in promotions of Assistant Engineers.

••'· It is obvious that by reason of under-recruitment of Assistant E Executive Engineers and over-recruitment of Assistant Engineers in breach of the quota rule over a period of almost 25 years, most of the Assistant Engineers having been promoted in excess of their quota would have to be pushed down to subsequent years when they could be absorbed within their lawful quota aud many of them would have to wait for 7 to 12 years on an average before their promotions F could be regularised by absorption within their quota. But, despite regularisation of their promotions after a wait of seven to twelve , years, they would not be entitled to claim seniority over Assistant Executive Engineers promoted later in point of time because by reason of the application of the rotational rule of seniority based on the roster maintained in accor~ance with the quota rule, the Assistant G Executive Engineers though promoted subsequently would be entitled to have their seniority reckoned from the date when the vacancy .allocable to their quota arose. The Assistant Executive Engineers though promoted long after the regularisation of the promotion of the Assistant Engineers would gain seniority over such Assistant Engineers, be~ause they would be fitted into the vacancies kept H reserved for them and artificial seniority would be given to them on

910 SUPREME COURT REPORTS (1984] j S.C.R.

A the fictional hypothesis that such vacancies were filled by them at the time when they arose. The result would be that Assistant Executive Engineers who were promoted years after the regularisation of the promotions of Assistant Engineers by absorption within their quota ·which regularisation also would have taken place after they had been

• working as Executive Engineers for a period of about 7 to 12 years ·would become senior to such Assistant Engineers even thOugh at the time when they were promoted, such Assistant Engineers would have already been functioning as Executive Er.gineers for a number of years. The Assistant Executive Engineers promoted later in polnt of time would shoot up in seniority irrespective of the length of their c service in the grade of Executive Engineers, by reason of the rota· tional rule of,seniority based on the roster ma.intained in accordance with the quota rule. It is obvious that giving such artificial se11iority to Assi.stant Executive Engineers promoted years after the regular promotions of Assistant Engineers would completely blight the promotional opportunities of such Assistant Engineers, because for promotion to the higher grade of Superintending Engineers, they would have to wait for consideration of their case until the Assistant Executive Engineers who are given artificial seniority oyer them arc promote~. even though they would have put in a much longer period of service as Executive Engineers than such Assistant Executive Engineers. The point we are making would become obvious if we consider a few illustrative instances.. Take, for example, the case of •• petitioner No. I. He was promoted as Executive Engineers on !st October, 1956 but since his promotion was out side the quota of Assistant Engineers, he had to be pushed down and he was ultimately absorbed within his lawful quota in 1962 and though he became a regular promotee within his quota since 1962, he was placed at serial F No. 273 in the seniority list dated 14th August 1975 'While many Assistant Executive Engineers promoted much later in point of time than 1962 were placed higher than him in seniority. The result was • that he never got a ehance for being considered for promotion as Superintending Engineer and he ultimately retired as Executive Engineer on 31st January, 1978. The case of petitioner No. 1 may now be contrasted with that of J.P. Singhal, who was recruited as Assistant Executive Engineer on !st Februarv, 1967 and who was promoted as Executive Engineer on 14th Janu"y, 1972. Though J.P. Singhal was not even in service at 'the date when petitioner No. 1 became a regular promotee Executive E:agineer in 1962 and he was promoted as Executive Engineer almost ten years after the regular promotion of petitioner No. 1 by absorption within his quota, JP. Singhal was placed in seniority at Sr. No. 113 while, as pointed out

P. s. MAHAL )'. UNION (E!wgwuti, J.) .9tl

above, petitioner No. l was placed at Sr. No. 273 in the seniority list dated 14th August 1975, with the result that J.P. Singhal came to be promoted as Superintending Engineer on 15th February 1979 while petitioner No. I did not even have a chance of being consi- dered for such promotion. Similarly we may also contract tj,J.e case of pcUioner No. 2 with that of R.A. Armugam. Petitioner No. 2 B was promoted as Executive Engineer on 7th April, 1959 but since his ptomotion was not wjtbin the quota of Assistant Engineer, he had to be pushed down and he was ullimately absorbed within his quota in 1966 and though he was regularly promoted as Executive Engineer within his quota since 1966, he was placed at serial No. 396 in the seniority list dated 14th August, 1975 while R.A. Armugam who was c recruited for the first time as Assistant Executive Engineer on 20th JanuJry .1971 and promoted as Executive Engineer only on 14th April, 1975 .was placed higher in soniority at serial No. 260. Thus, the result- of the application of the rotational rule of seniority was that R.A. Armugam who was not even in service at the date when petitioner No. 2 became a r,gularly promoted Executive Engineer D and who was promoted as Executive Engineer 9 years after petitioner No. 2, acquired several places above petitioner l'/o. 2 in seniority. It is not necessary for us to multiply instances where Assistant Execu- tive Engineers promoted years after the regular promotion of Assis- tant Engineers have sh.ot up in seniority above such Assistant Engineers by reason of the applicability of the rotational rulo of E seniority, with devastating effect on the promotional chances of .. such Assistant Engineers. Such instances are legion and, in fact, Q!most every Assistant Engineer has in the process suffered loss of seniority vis-a-vis Assistant Executive Engineers promoted years later in point of time. The application of the rotational rule of seniortty h1S thus resulted in gross discrimination against Asstt. r Engineers promoted as Executive Engineers, in so far as their opportunities for promotion to the higher grades are concerned. Th~ seed of discrimination attracting the frown of the equality clause h'8 germinated from the fact of reg-liar undue deviation in actual .. implemenation of the quota rule and obviously the deviation from G tho quota rula, the greater and more intense 1s the discrimination. We. have already pointed out the enormity of the deviation from the deviation from the quota rule in the present case and this deviation continued from year to year for a period of over 25 years has consid•crab Y aggravated the discrimination against the Assistant H Engineers.

912 SUPREME COURT REPORTS (1985] 3 s.c.R.

A Now it is obvious that if Assistant Executive Engineers recruited at a young age are given artifical seniority several years above the Assistant Engineers who have already been pushed down 7 to 12 years bdore absorption within their lawful quota, they would get chances of promotion much earlier than the Assistant Engineers and once promoted, they being young in age would occupy the posts in B the higher grades for a much longer period and that to a large extent block the chances of promotion of Assistant Engineers even when their turn comes for consideration though at a much belated point of time. If officers from two sources are promoted according to quota, then officers from both so,1rces get promotion to posis in the higher grade on the basis of continuous officiating service in the grade, c reckoned from the initial date of appointment subject, of course, to merit and this process goes on continuously due to progressive retirement of officers in the higher grades, such officers being of an appropriate higher age group. But if, as in the present case, rela- tively younger officers drawn from one source are given artificial seniority over older offiicers promoted from the other source, such D younger officers would, by the reason of the artificial seniority given to them progressively occupy most of the posts i~ the higher grades and because they belong to a younger age group, they would block the promotional avenues open to the officers drawn from the other source. This disastrous situation has occurred here because of the rotational rule of seniority and the result is that, as at the end of E 1981, out of 101 Superintending Engineers 93 were fro!ll the source of Assistant Executive Engineers and so far as the higher cadre of Chief EngiJieers is concerned, all the 19th Chief· Engineers were from the , . same source, namely, Assistant Executive Engineers, though in the grade of Executive Engineers, out of a total of 384 Executive F Engineers, 103 only were from the source of Assistant Executive Engineers while 281 were from the source of Assistant Engineers. These statistics clearly highlight how discriminatory and unjust has been the application of the rotational rule of seniority to the Assis- tant Engineers.

G It was c.ontended on behalf of respondent Nos. 4 to \90 that the under recrnitment of Assistant Executive Engineers during the period from 1949 to 31st July, 1975 was due to the fact that the Government took the view, which of course was found erronebus by the court in A.K. Subraman's case that the quota rule wa; to be applied only at the stage of conflrmation and it was because a differe.nt view was taken in A.K. Subraman's case, namely, that the

!>. s. MAHAL v, UNION (Bh;gwatf, J,) 91~

quota, rule was applicable at the stage of initial promotion in an officiating capacity to the grade of Executive Engineers and not at the time of confirmation that this imbalance in seniority took place. This contention is clearly unfounded but even if it were not so, it is entirely immaterial, because the constitutional validity of the rota- tional rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rotational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subraman's case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be c judged. But, as pointed out above, we do not thi.Jk this contention urged on benalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of re;pondent Nos. 4 to 190 that under-recruttment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasii:<:s this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all - ' the temporary and deputation posts in the grade of Executive Engineers and above in the departmeat as permanent ones for the purpose of working out th« strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing-a letter to which we have already referred earlier. The Government also took

...,. up a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subraman's case where it was stated: "I submit that the quota rule is to be applied as and when vacanqies in the grade of Executive G Engineers are required to be filled but as already stated earlier, it ha5 not bee\) possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of t!J.eir quota." (Emphasis supplied). It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota. rule. But the government deliberately resorted to the policy of under·

914 SUPREME COURT REPORTS !1984] 3 s.C R.

A recruitment of Assistant· Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, J978 it was felt that "it is not po;sible to recruit enough officers in Clas; I junior scale to fill up lhe quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to <ilass I B and· make the service totally unattractive". The Note regarding Cadre Review also pointed out:·

"A. perusal of form VI would indicate that in the next ft ve years the annual • recruitment would be of the order of 80 and in the subsequent five years it would be of the order c of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (GroupB) in the ratio of 1 : I Sine<: the annual intake of Asstt. Executive Engin~ers is to be co- D related with the vacaacies that would be available in the grade of Executive Engineers, the .,innual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next ftve years arid 20 in the subsequ~nt five y'earn. It has been already explained in para 2 : 3 : 6 that when the annual recruitment was less than I 0, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is main· tained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group 'A' is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I through UPSC compotitive Examination should ~e rest- ricted to 10 only." · ·

There can be no doubt that the failure to recruit Assitant Exe· cutivc Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asst!. Exe· cutivc Engineers arose from year to year, there would be Asst!. r

P. s. MAHAL v. UNION (Bhagwati, J.) .915 ,, Executive Engineers available for promotion to fill such vacan• A cies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.

We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the B Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota mmt be determined by the length of continuous officiation in service in the grade of Executive Engineers, subject to the qualification that in case of Assistant Engineers the c length of continuous officiation shall b~ reckoned from the date when their promotion is regularised by absorption within their lawful quota.

We would therefore allow the writ petition and quash and set aside the Memorandum and the seniority list dated 14th August D 1975 and the Rules of 1976. We would direct the government to prepare a new seniority list of ExecJtive Engineers in the light of the observations contained in this judgment. The Govern!llcnt will prepare such seniority list within a period of two months from today. When th~ seniority in the grade of Executive Engineers is E rearranged in accordance with the directions given in the judgment, the cases of Assistant Engineers who would have been due for • considaration for promotion as Superintending Engineers and there- after as Chief Engineers on the basis of their revised seniority, will be considered by a duly constituted Departmental Promotion Com- F n.ittee as on the dates on which they would have been due for such consideration if the correct seniority had been given to them, and if on the basis of their performance and record as on those dates they would have been selected for promotion, they must be given promo- tion with retrospective effect from such dates and if necessary, supernumerary posts in the grades of Superintending Engineers and G Chief Engineers shall be created for the purpose of accommodating them and all arrears of salary and allowances shall he paid to them on the basis of such retr.>spective promotions. We may make it clear that those Assistant Executive Engineers who have been promoted as Superintending Engineers or Chief Engineers upto the date of this judgment shall not, on account of revised seniority in the grade of H Executive Engineers, be disturbed from the positions which they are occupying at present but their seniority in sachJ!igher grades will

916 StlPRllME COURT REPORTS . (1984] 3 s c.l.

A have to be ~earranged on the basis of the . directions given in the. judgment.

We hope and trust that this judgment will put a quictous to . the Jong ranging controversy between Assistant Engineers and Assis- tant Executive Engineers. The writ petition will stand disposed of in B the above terms with no order as to costs.

S.R. Petitions allowed.