ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS.

,A officiating Deputy Engineers were in the same cadre with the. other Deputy Engineers in permanent posts. ·:s::

19Copy pinpoint19. It has been next contended that even if the decision in Patwardhan's case be held to be correct, and it is assumed that the posts of officiating Deputy Engineers are also included in the cadre of B permanent Deputy Engineers, rr. 4 and 9 of the 1982 Rules could not have been challenged as illegal and the decision of the Bombay High Court in Dafle-Lele case striking down these rules is erroneous and fit T to be over-ruled. It was pointed out that the 1984 Rules framed as a result of the said decision expressly stated that they were subject to the result in the Special Leave Petitions No. 16614-15 of 1983 filed by the State of Maharashtra against the said decision, and if the judgment in c Dafle-Le/e case is set aside then the 1984 Rules will automatically disappear. Great emphasis.was laid by Mr. Tarkunde on the provision - in the 1960 Rules fixing the ratio of the direct recruits and the pro- motees in the Deputy Engineers cadre; and it was 'iirged that the question of seniority must be settled with reference to the time when D posts became available to the promotees in accordance with the said quota rule. Merely for the reason that the promotees were allowed to officiate on the temporary posts in excess of their quota they cannot be permitted to steal a march over· the genuine claimants to the posts namely, the subsequently appointed direct recruits. Repelling the stand of the respondents it was argued that the quota rule never ool- E lapsed and remained operative and was confirmed by the decision in Patwardhan's case. About the rule applying at the stage of appoint- ment and not at the stage of confirmation, as was held in the said judgment, it was suggested that the observations cannot be legiti- mately interpreted as setting the officiating Deputy Engineers free of the principle of quota. It meant, according to the learned rounsel, that - F if an officer was promoted within his quota, the rule would be applic- able with reference to the date of promotion and not· the date of confirmation, but where his promotion was in excess of the permissible quota his seniority would be reckoned with reference to the date when a vacancy became available for him, and not on the basis of his con- tinuous officiation. He will be entitled to count his officiating expe- G rience only on a vacancy being available to him in accordance with the quota rule. Reliance was placed on S.G. Jaisinghani v. Union of India and Others, [1967] 2 SCR 703; A.K. Subraman and Others v. Union of India and Others, [1975] 2 SCR 979; V.B. Badami etc. v. State of Mysore and Others, [1976] 1SCR815 and Paramjit Singh Sandhu and Others v. Ram Rakha and Others, [1979] 3 SCR 584. Alternatively it H was contended that assuming that the quota rule had collapsed as a

ENGG. OFFICERS ASSCN. v. STAIB OF MAHARASHTRA (SHARMA, J.] 923

--- result of non-availability of direct recruits, the State Government was under a duty to change the ratio by allotting a larger share to the promotees, which was belatedly done in 1970. So long the rule was not A

imended the same had to be respected. On the strength of observa- tions in Bishan Sarup Gupta v. Union of India and others, [1975] Supp. SCR 491, it was urged that collapse of quota rule does not make seniority dependant on continuous officiation. It calls upon the B Government to frame better rules to meet the requirements of the situation.

20Copy pinpoint20. The quota rule was for the first time introduced by the 1960

- k Rules. As already mentioned, these Rules were introduced through executive instructions issued by the State Government. The statutory rules which were holding the field earlier did not fix any ratio between c the direct recruits and the promotees. Rule 1 of the 1960 Rules which is relevant in this context is quoted.below:

"1. Appointment to the Bombay Service of Engineers, Class I and Class II, shall be made either- D

(a) by nomination after a competitive examination held by the Bombay Public Service Commission hereafter called / the Commission in accordance with the rules appended, or

(b) by promotion from amongst the members of the lower E cadres concerned.

- Provided that the ratio of the appointment by nomination and by promotion shall, as far as practicable, be 75:25."

It will be noticed that the ratio of 3: 1 was fixed for the purpose of F "appointment", and not for the strength in the Service, as was sug- gested on behalf of the appellants. The other important feature was that the Proviso fixing the ratio, far from being imperative, permitted the State Government to exercise its discretion according to the demand of the exigencies, by using the expression "as far as practic- able". The case of the appellants is that the said expression was G inserted in the Proviso with the object of avoiding fractions in arith- metical calculations of number of posts available to the two groups, and for no other purpose. We do not see any reason to so restrict the scope and meaning of the expression "as far as practicable". A similar expression in identical terms used in certain other rules came up for consideration in N.K. Chauhan and Others v. State of Gujarat and H

924 SUPREME COURT REPORTS [199()] 2 S.C.R.

A Others, [1977] 1 SCR 1037, and it was held that if it became non- feasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it was free to fill the posts by promotion of suitable hands, if the filling up of the vacan- cies was administratively necessary and could not wait. Similar is the position here, and the r. 1 of the 1960 Rules must be held to be B :realistic and flexible, true to life rather than abstractly absolute. It was strenuously contended by Mr. Tarkunde and was reiterated by the other learned counsel that the State Government erred in promoting the officers from the lower cadre far in excess of their legitimate share in the Service, and the promotees cannot be allowed to take advantage

c of this wrong perpetuated from year to year. Reply of the respondents Is that direct recruits suitable for appointment were not available and if appointments had been deferred on that account the fast developing ~ - ~epartments, entrusted with quick improvement in several fields would have been rendered ·crippled, leading to grave injury to the Industrial and other growths in the State. The public interest aemanded that the improvem~nt work did not suffer on account of D :non-availability of suitable candidates for nomination, when competent Engineers fit to shoulder the responsibility were available in abundant number in the departments themselves. It will bear repetition that the promotees were not appointed in a casual manner; the Rules applic- able for substantive appointments were meticulously followed and eligible officers were subjected to all the tests including scrutiny by the E Public Service Commission before they were promoted. The·teason ,for not adhering to the quota rule was admittedly the non-availability 'Of the direct recruits and was specifically mentioned in the Govern- ment's resolution of 1970 as a reason for replacing the old rules by new ones. Mr. Singhvi, the learned counsel for the respondents, argued that having regard to the relevant facts and circumstances, there is no - F escape from the conclusion that the quota rule spelt out by the execu- tive instructions in the 1960 Rules had in fact collapsed, and that this fact can be recognised even without issuing a formal amending instruc- tion. It is permissible to draw an inference to that effect by the steps taken by the State Government, repeatedly and for a considerable period, in disregard of such a rule, and specially so where the quota is G not fixed in imperative terms. Reliance was placed on the observations at page 209 of the judgment of this Court in P. C. Sethi and Others v. Union of India and Others, as reported ill (1975] 3 SCR 201. The quota of direct recruits in that case had not been enforced "perhaps for good reasons as noted above, the policy of the Government being diffe- rent". In this background it was stated that administrative instruc- H tions, if not carried into effect for obvious and good reasons, cannot

ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA [SHARMA, J.J 925

confer a right upon entrants on later recruitment to enforce the same.

- The learned counsel appears to be right. A ~-

21Copy pinpoint21. It has, however, been rightly suggested on behalf of the appellants that when recruitment is from more than one source, there is no inherent ·invalidity in introducing quota system, but as was observed in Subraman's case (supra), the unreasonable implementa- B .._. tion of such a .rule may attract the frown of the equality clause . Further, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority. It ought to be strictly followed and not arbitrarily ig- nored. This, of course, may not ptevent the Government from making - "'- slight deviations to meet the exigencies. If it is discovered that the rule ·has been nmdered impracticable, it should be promptly substituted by c an appropraite rul.e according to the situation. The question, however, is as to what is the conclusion if the quota rule is not followed at all continuously for a number of years, after it becomes impossible to adhere to tlie same. Admittedly in the present cases direct recruits were not available in adequate number for appointment, and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the State peremptorily required experienced and efficient hands. In the situation the State Government took a decision l to fill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules. All the eligible candidates were considered ano the opinion of the Public Service Commission was obtained. The appointments were not limited to a particular period and as a matter of fact continued till 1970 when the fresh rules were introduced. t- 22, The stand of the appellants is that whenever appointments F -\ are made in violation of a quota rule the appointees will have to go down below the new entrants, joining the Service in accordance with their quota. The cases relied upon by Mr. Tarkunde do discuss the general principle~ about the enforceability of quota rule and the effect of its violation, but do not profess tq Jay down the universal rule applicable to every case irrespective of the other relevant circumst- G ances arising therein. On the other hand, the decisions cited by Mr. Singhvi deal with circumstances similar to those in the !'resent cases and > are illustrative of situations where the general rule has to yield to just exceptions. Indeed, Mr. Tarkunde himself attempted to distinguish them on the ground that the government had relaxed the quota rule in those cases. The fallacy in the argument, however, is that the present H cases are also of the same category.

926 SUPREME COURT REPORT~ [1990] 2 S.C.R.

23Copy pinpoint23. Mr. Tarkunde is right that the rules fixing the quota of the appointees from -two sources are meant to be followed. But if it becomes impractical to act upon it, it is no use insisting that the authorities must continue to give effect to it. There is no sense in asking the performance of something which has become impossible. Of course, the Government, before departing from the rule, must B make every effort to respect it, and only when it ceases to be feasible to enforce it, that it has to be ignored. Mr. Tarkunde is right when he says that in such a situation the rule should be appropriately amended, so that the scope for unnecessary controversy is eliminated. But, merely for the reason that this step is not taken promptly, the quota rule, the performance of which has been rendered impossible, cannot c be treated to continue as operative and binding. The unavoidable situation brings about its natural demise, and there is no meaning in ) - pretending that it is still vibrant with life. In such a situation if appoint- ments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subsequently. The later appointees may have been . young students still prosecuting their studies when the appointments from the other source t_ake place-and 11 is claimed on behalf of the respondents that this is the position with respect to many of the direct recruits in the present case-and, it will be highly foequitable and arbitrary to treat them as senior. Further\ in cases where the rules themselves permit the Government to relax the provisions fixing the ratio, the position for the appointees is still bet- ter; and a mere deviation therefrom would raise a presumptioin in favour of the exercise of the power of relaxation. There would be still a third consideration relevant in this' context: namely, what is the con- clusion to be drawn from deliberate continuous refusal to follow an executive in~truction fixing the quota. The inference would be that the executive instruction has ceased to remain operative. In all these cases, the matter would however be subject to the scrutiny of the Court" on the ground of ma/a fide exercise .of power. All the three circumstances mentioned above which are capable of neutralising the rigours of the quota rule are present it: the cases before us, and the principle of seniority being dependant on continuous officiation can- not be held to have been defeated by reason of the ratio fixed by the 1960 Rules.

24Copy pinpoint24. The decisions relied upon by Mr. Singhvi deal with similar situation and are consistent with our opinion.

ENGG. OFF!CERSASSCN. v. STATEOFMAHARASHTRA(SHARMA,J.J 927

25Copy pinpoint25. The decisions relied upon by Mr. Tarkunde support his argu- ment in general terms but are distinguishable on account of the special features in the present cases. Mr. Singhvi contended that many important observations in those cases also support the respondents on several relevant aspects, as for example, the statement at pages 990H- 991B in the judgment in A.K. Subrman's case as reported in [1975] 2 SCR 797 to the following effect: B "It is submitted by the respondents that one-third quota cannot be filled unless the two-third quota was exhausted. This, in our view, will introduce sterility in the quota rule so far as the promotees are concerned. Their hopes and aspirations cannot be related to the availability or non-availability of the direct recruits to fill the two-third c quota. Each quota will have to be worked independently on its own force. The word "rest" in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierarchy of the Service." D

26Copy pinpoint26. Relying on the observations at page SOSH of the judgment in Gupta's case reported in [1975] Supp. SCR 491, Mr. Tarkunde strenu- ously urged that even on the assumption that the quota rule in the I present cases had, in fact, broken down, it was imperative on the part of the Government to have framed fresh workable rules before pro- E moting the respondents. The learned counsel for the promotees distin- guished the decision, and to our mind correctly, on the ground that

- there the manner and terms of the appointments made in breach of the quota rule, were widely different from those in the present cases. The special facts as they appear from the other judgment in the Gupta's case reported in [1975] 1 SCR 104, were stated at page 113E-F thus: F

"It is necessary to remember, however, in this connection that all these officers had been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had not been deter- mined. It was thereby implied that orders about seniority G could only be passed after the department was in a position to take a decision with regard to the inter se seniority bet- ween the promotees and the direct recruits. That being the situation of all these officers, they could hardly contend that the dates of appointments will not be altered for the purposes of determining seniority." H

9~8 SUPREME COURT REPORTS H990l 2 S.C.R.

A The decision was later considered in P.S. Mahal and others v. Union of India and Others, [1984] 3 SCR 847, and the analysis given at pages 877E-880 clearly indicates that the decision has to be understood in the ''C background of the facts therein and cannot have a universal applica- tion irrespective of the situation. This judgment as well as the decision in Badami's case (supra) were rightly distinguished in Patwardhan's B case at page 797. ·~

27Copy pinpoint27. It has also been alternatively argued on behalf of the appel- !ants that by the statement in the judgment in Patwardhan's case that the quota rule applied at the stage of appointment and not at the stage

c of confirmation, this Court did. not mean to say that those who were promoted in an officiating capacity were not subject to the quota rule. The contention is that what was meant to be conveyed by the aforesaid ? - observations was that if an officer had been promoted within his quota then it would be the date of his promotion and not the date of confir- mation which would be relevant for the officer's seniority, but where the officer is promoted in excess of his quota his seniority would arise D when.a vacancy in his quota becomes available. We are afraid, it is not possible to read the judgment as suggested. The finding at pages 795F- 796A, iri the following words does not leave any room for controversy;

"In this view of the matter, the prescription contained in ' ·'· E the closing sentence of r. B(i) that "the number of such promotions shall be about 1/3rd the number of direct recruits appointed iri that year" would apply to initial "" appointments. and cannot govern the confirmation of those who have 'already been appointed to Class II cadre. _In other words, direct recruits and promotees have to be appqinted in the proportion of 75:25 to Class II cadre, the - F forq'ler as Deputy Engineers and the latter as officiating 1·- Deputy Engineers, .but once that is done, the quota rule ~ would cease to apply with ' the result that confirmations in the post of Deputy Engineers are not required to be made in the proportion in which the initial appointments had to be made. Thus rule B(i) onlv requires that for every three G direct recruits. appointed as Deputy Engineers only one promotee can be appointed as officiating Deputy Engineer. The rule cannot be construed to mean that for every three confirmations of Deputy Engineers, not more than one promotee can be confirmed as Deputy Engineer."

H Relying upon the observations in the Patwardhan's case that the quota

ENGG. OFFICERSASSCN. v. STATE OFMAHARASJflRA !SHARMA, J.] 929

system was an important feature of the 1960 Rules,.it was contended ~·- by Mt .·Tarkllnde that it is not .permissible to hold that the rule in this A regard had been relaxed by the Government or that it had at any point of time broken down. ·we db not find it permissible to construe the statement in the judgment, referred to, to lead to such a conclusion. This argument, as has been addressed before us on the basis of the quota rule as an additional contention was not pressed in Patwardhan's B case and so there was no occasion for this Court to deal with the same. The observations referred to by Mr. Tarkunde were made in a diffe- rent context altogether. If it be assumed that this argument was con- structively involved in the Patwardhan's case, then it follows·that the same must be deemed to have been overruled. The case clearly, in unambiguous terms, rejecied the claim of the direct recruits for senio- rity over the promotees. The appellants by trying to interpret a part of c the observation made in the judgment in a different context, in an artificial and uncalled for manner, are suggesting that the judgment is self-contradictory, but we do not find any justification for such an inference. D 2\l. Still another point confined against a certain category of the officiating Deputy Engineers who were not included in the frozen cadre under the 1970 Rules was attempted. The 'contention is that the expressions "all the promoted Deputy Engineers" and "all directly I recruited Deputy Engineers" used in Patwardhan's case should be given restl'.icted meaning, so as not to include those officiating Deputy E Engineer.> who were not included in the frozen cadre within the group of l'pmmoted Deputy Engineers"; and the Assistant Engineers Oass - II within the group of "directly appointed Deputy Engineers". It is said that although in the judgment it was stated that the different \ ·1" groups in the Service were there in representative capacity, these - groups were actually not represented. Even assuming that to be so, it is not possible to hold that the principle of seniority being dependent on continuous officiation will not apply to these groups of the officers. The reasons for rejecting the case of the appellants are equally applic- able to all the promoted Deputy Engineers including those who were earlier Sub-Divisional Engineers and Sub-Divisional Officers, as well as all the directly recruited Deputy Engineers. The suggested division of the two groups into further sub-categories will result in illegal discrimination.

29Copy pinpoint29. Mr. Tarkunde also urged that as a result of the judgment in Patwardhan's case it was not necessary to frame the entire rules afresh, inasmuch as only r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules H

930 SUPREME COURT REPORTS [1990] 2 S.C.R.

had been struck down. The grievance against the 1982 Rules is that it A has disturbed ·the order of seniority of the parties with retrospective effect, which is illegal. The argument has to be rejected as it fails to take note of the finding that the direct recruits who joined the service later than the promotees were at no point of time senior.The 1982 Rules merely recognised this position and gave effect to it. They have · B (excepting the arbitrary and discriminatory provisions of rr. 4 and 9) undone the inequality, inequity and illegality which were the products of the offending provisions of the earlier Rules, and there is no reason whatsoever to doubt their validity.

30Copy pinpoint30. The judgment of the Bombay High Court striking down rr. 4 and 9 of the 1982 Rules has been seriously criticised on behalf of the c appellants. The grounds of challenge, however, are the same which have been considered earlier. Excepting the State of Maharashtra challenging this judgment in S.L.P. Nos. 16614-15 of 1983 no other party has directly impugned it. So far Mr. A.S. Bhasme, who appeared on behalf of the State of Maharashtra, is concerned, he faintly defended all the steps of the State taken from time to time, and made certain statements which were criticised on behalf of the appellants in the Civil Appeals as amounting to.unjustified concessions in favour of the promotees. Since we .have not gone by the stand taken on behalf of the State of Maharashtra before us during the argument, and our decision is based on a consideration of the merits of the different \ E questions argued by the parties and not on any concession, we do not consider it necessary to deal with Mr. Bhasme's argument at any length. We hold that the rr. 4 and 9 of the 1982 Rules were rightly struck down and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid.

F 3 L Mr. Tarkunde took great pains in analysing the practical effect of the judgment in Patwardhan's case with which we agree and contended that the direct recruits shall suffer seriously if the present Civil Appeals, Writ Petitions and the Special Leave Petitions are not allowed. Mr. Singhvi challenged the figures worked out on behalf of the appellants. We do not consider it necessary to go into this con- G troversy as it cannot be denied .that as a result of Patwardhan's case and on dismissal of present cases a large number of promotees have to be treated as senior to the direct recruits, and in that sense the direct recruits do suffer. This, however, cannot be avoided. If their case on merits is not correct, it cannot be assumed that they were at anfpoint

H of time clothed with any right, which they are being deprived of. If the decision in Patwardhan's case had been given effect to promptly, many (

ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.) 931

of them would have been reverted to inferior posts but by their persis- A ~-- tance, both before the higher authorities of the State and the Courts, they have sufficiently delayed the matter so as to avoid the reversion of any one of them.

32Copy pinpoint32. Mr. Bhandare, appearing in W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983, generally adopted the argument addressed by B -( Mr. Tarkunde and added by saying that the officers should have been, on a proper classification, divided into 3 classes. namely, (i) Assistant Engineers Class I, (ii) the Deputy Engineers directly recruited in Class II, and (iii) the officiating Deputy Engineers promoted from Class III, c .... and quota should have been fixed separately for 3 classes right cip to the top stage where appointments are to be made by promotion. He prayed for a direction to the authorities to frame fresh rules including c \.,- appropriate provisions on the lines suggested by him. In view of our finding that the 1982 Rules as amended by the 1984 Rules do not suffer from any infirmity, there is no occasion for issuing any further direc- tion. So far the question of fixing the ratio of the appointment' from different sources is concerned, it is a matter of policy for the Govern- D ment and it is not for us lo offer our advice.

33Copy pinpoint33. The petitioner in W.P. No. 5187 of 1983, S.B. Sohoni, was

I directly appointed as a Deputy Engineer in March 1961 and was con- firmed in 1963. It was, therefore, rightly pointed out by Mr. Sighvi that he was not concerned with the 1978 Rules at all. TI:c writ petition, in absence of grounds relating to the 1978 Rules, confirms this impres- sion. He has of course challe~ged the 1982 Rules, as thev stood before - the amendment in 1984, but did not, after 1984 amendment, make any prayer for modification of his writ petition. He also did not consider it i necessary to file an appeal against the High Court judgment. No addi- tional ground has been raised on his behalf to be dealt with separately. F ~

34Copy pinpoint34. So far the petitioner in Writ Petition No. 8594 0(1983, J.T. Jangle is concerned, he was an earlier appointee and was included in the seniority list of November 1956. This list was confirmed by the decision in Patwardhan's case (vide page 800G of the judgment as reported in [1977] 3 SCR 775). It has been stated in his petition that G although some junior officers were promoted as Executive Engineers ;. earlier, his promotion was delayed and took place in October 1973. He has not given the details in this regard or the names of the junior officers who superseded him. He was not considered eligible for pro- motion as Executive Engineer earlier as he had not completed 7 years' service as required by the 1960 Rules. He has not imp leaded those who H

932 SUPREME COURT REPORTS [19901 2 S.C.R.

A have superseded him and has not made any specific prayer in this regard. Besides, in view of the decision in P. Y. Joshi's case (supra) he could not have claimed promotion before completing 7 years of service. We do not find any merit in either of the two writ petitions- W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983-pressed by Mr. Bhandare. B

35Copy pinpoint35. Writ Petition No. 1327 of 1982 was argued by J.H. Bhatia, the petitioner, in person. He was directly recruited as Deputy Engineer Class II in July 1959 and has challenged the constitutional validity of the 1978 Rules. Mr. Singhvi, the learned counsel for the respondents, took a preliminary objection to the maintainabilty of the writ application on the ground that his claim stands barred by princi- c ples of res judicata. Admittedly, he was represented in W.P. No. 672 of 1981, filed before the Bombay High Court which was dismissed on 7.9.1981, upholding 1978 Rules. An application under article 136 of the Constitution being numbered as S.L.P. No. 8064 of 1981 was filed from this judgment in representative capacity and was dismissed by 0 this Court on 29.12.1981. These facts were not denied by the petitioner before us, and it was therefore contended on behalf of the respondents that so far the validity of the 1978 Rules is concerned, it must be held to be binding on the petitioner in respect of identical relief now pres- sed by him in the present writ case. The objection appears to be well founded. It is well established that the principles of res judicate are E applicable to writ petitions. The relief prayed for on behalf of the petitioner in the present case is the same as he would have, in the event of his success, obtained in the earlier writ petition before the High Court. The petitioner in reply contended that since the special 1eave petition before this Court was dismissed ilJ../jmine without giving any - reason, the order cannot be relied upon for a plea of res judicata. The F answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon; the plea of res judicata has been pressed on the basis of the High Court's judgment which became final after the dismissal of the special leave petition. In similar situa- tion a Constitution Bench of this Court in Daryao and Others v. The State of U. P. and Others, [ 19621 1 SCR 574, held that where the High G Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of compe- tent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is [

ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.[ 933

founded and a judgment of the High Court under article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 of the reported judgment, thus: B "We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the ~. ' same statute and the grounds raised by the petitioner in that behalf are substantially the same." c The decision in· Forward Constuction Co. and others v. Prabhat Manda/ (Regd.), Andheri and Others, I 1986] 1 SCC 100, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of s. 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.

- 36. The petitioner, however, was permitted during the.hearing, to place his case on merits and he did so at some length, and Mr. Singhvi replied thereto. We have considered the arguments carefully and do not find any substance in the claim of the petitioner and we proceed to indicate our reasons briefly.

37Copy pinpoint37. The petitioner J .H. Bhatia was appointed Deputy Engineer as a direct recruit in 1959 and was promoted as Executiv.e Engineer in

1969. According to his case, he was governed by the 1941 Rules and was, therefore, entitled to a higher position in the li~t of seniority. It G has been contended by him that he was entitled to the benefit of either the 1941 Rules or the provision relating to quota in 1960 Rules and in either event he would have been eligible for promotion to the rank of Executive Engineer three years earlier, that is, in 1966. On account of this delay in his promotion he seriously suffered by the further delay in his next promotion as Superintending Engineer by a considerable H

934 SUPREME COURT REPORTS [1990] 2 S.C.R.

A period. WitiJ. reference to the criticism against the 1941 Rules in the judgment of Patwardhan's case the petitioner urged that the same should be treated as passing remarks. fit to be ignored. Alternatively he has aaopted the arguments addressed on behalf of the appellants challenging the correctness of the decision in Patwardhan's cas1

38Copy pinpoint38. As has been stated earlier, the seniority list of the Deputy Engine.:rs tor the period up to 1.11.1956 was confirmed in the Patwardhan's case. The question of determining the seniority for the subsequent period arose in pursuance of the further decision in this judgment. The 1960 Rules were enforced with effect from 30.4.1960 which introduced, for the first time, several new provisions including ;j, - C the quota rule. The period from 1.11.1956 to 30.4.1960 was, therefore, separately dealt with by framing the 1978 Rules under Article 309 of the Constitution. In accordance with the decision in Patwardhan's case the seniority list of the Deputy Engineers as on 1.11.1956 was declared by these Rules as valid, final and binding, and thereafter the further seniority lists were directed to be prepared for the years 1957, 1958, D 1959 and 1960 on the basis of continuous officiation in accordance with the judgment. The petitioner contends that the judgment in Patward- han's case cannot be interpreted to have struck down the 1941 Rules and the claim of the direct recruits appointed prior to the coming in force of the 1960 Rules must be upheld in view of the provisions of r. 2 of the 1941 Rules. The 1941 Rules contained only two rules which are E q noted below:

-., 1. ln the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of their appointment on probation.

F 2. In the case of officers promoted to substantive vacan- cies, the seniority should be determined with reference to the date of their promotion to the substantive vacancies provided there has been no break in service prior to their confirmation in tho8e vacancies."

39Copy pinpoint39. Mr. 'SinghVi replied by saying that r. 2, aforementioned, when properly understood, does not help the petitioner at all, inasmuch as the rule refers to substantive vacancies and not permanent appointments, and substafit'ive vacancies can arise even in temporary posts. Reliance was placed on the observations in Ba/eshwarDass' V. [1981] 1 SCR 449. However, we do not consider it necessary to deal with this argument, as in our view the petitioner cannot succeed even

ENGG. OFFICERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 935

otherwise. The substance of the petitioner's argument is again the same as has been contended on behalf of the appellants in the Civil· Appeals, namely, that the principle of seniority being dependent on continuous officiation as laid down in Patwardhan's case should not be accepted. The content10n is that the seniority ought to be reckoned with reference to the dates of permanent appointment in the cadre. This argument precisely was rejected in Patwardhan' s case and we are B ~ in complete agreement with the same. We also do not accept the argument of the petitioner that the judgment did not deal with the 1941 Rules. The said Rules were pointedly considered at pages 790G· 79 lE in the published report and it was, inter alia, held, =-. "' "The 1941 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided c pleasure of the Government for orders of confirmation. In the pre-Constitution era, such hostile treatement had to be suffered silently as a necessary incident of government service." D It has to be remembered that the 1941 Rules, made under an executive instruction, do not stand on a stronger footing than the provisions of the subsequent similar Rules which have been struck down on the ground of illegal discrimination; and as in the case of the 1982 and the I 1984 Rules, the 1978 Rules also were framed under Article 309 of the Constitution. No valid objection can be taken against the 1978 Rules E made for undoing the wrong resulting from arbitrariness and offensive discrimination which had visited the promotees. ~

40Copy pinpoint40. Mr. Bhatia has, by his written argument, belatedly alleged mala fides on the part of the State Government on the ground that it ""'\" failed to prepare and publish select lists for a number of years and it F -\ attempted to mislead this Court by not stating the correct position in regard to the cadre of the Deputy Engineers and the 1941 Rules. We do not find any justification for the petitioner or any other direct recruit to urge lack of bona fides on the part of the State. We do not find any merit in any of the submissions addressed by the petitioner. G

41Copy pinpoint41. The retired Superintending Engineer, Shripad Shankar ' >- Patwardhan, intervenor in Writ Petitions No. 1327 of 1982, 5187 of 1983 and 8594 of 1983, also made a few submissions in person and filed a note of his argument in the shape of an affidavit. He has not raised any additional ground, and it is not necessary to discuss his case any further. H

936 SUPREME COURT REPORTS [1990] 2 S.C.R.

42Copy pinpoint42. The two petitioners in Writ Petitions No. 3947-48 or 1983 are A Executive Engineers in the Irrigation Department of the Government of Gujarat. Although the case was initially filed throupr advocates, at the hearing on a request by them the petitioner No. 1 was allowed to argue the case in person on their behalf. Besides impleading the State of Gujarat, the Government of Maharashtra and the Union of India as respondents No. 1, 2 and 3 respectively, H.N. Shah, another officer of the same Department, was.made a party as respondent No. 4 in the writ petition. The case of the petitioners is that the respondent No. 4 was junior to them and was erroneously treated as senior in the senio- rity lists for the period 1.11.1956 to 30.4.1960 prepared in accordance with the 1978 Rules. c The writ petition states that the petitioners were in Subordinate Engineering service of the former State of Bombay when they appeared at the competitive examination h.eld for direct recruitment and were appointed Deputy Engineers. At the same examinaton, H.N. Shah, respondent No, 4, who was an officiating Deputy D Engineer, also appeared anc!/ was appointed a Deputy Engineer as a direct recruit and his name ,appeared in the list below the petitioners. After the bifurcation of tht two States of Maharashtra and Gujarat in 1960, the petitioners as well as the respondent No. 4 were allocated to the State of Gujarat. In 1969 the petitioner No. 1 and the respondent No. 4 were promo!@<! as Executive Engineers and the name of the E respondent No. 4 was again shown lower in the list. it is stated in paragraph 13 of the writ petition that the petitioner No. 2 was temporarily dropped in this promotion order on administrative grounds. It is contended on behalf of the petitioners that these lists correctly placed the respondent No. 4 below the petitioners but the subsequent lists prepared in pursuance of the 1978 Rules wrongly show - F him as senior.

A counter affidavit on behalf of the State of Maharashtra was filed interalia denying several allegations in the writ petitions explain- ing certain circumstances by giving all the relevant materials, and exp- laining the situation. S.B. Patwardhan, the petitioner' in the reported case, also intervened and refuted the claim of the petitioners. The respondent no. 4 has retired in the meantime and has not appeared in this case.

The petitioner no. t after making a very brief argument, filed written submissions, but since in our view the Patwardhan's case was correctly decided, the State was under a· duty to prepare fresh

ENGG. OFFJCERSASSCN. v. STAIB OF MAHARASHTRA [SHARMA,J.] 937

seniority lists for the period 1.11.1956 to 30.4.1960, and this was done after framing the 1978 Rules. We do not find any merit in the challenge to the 1978 Rules, as indicated. earlier, and in that view these writ petitions are fit to be rejected; specially as the respondent No. 4 has already retired. B

43Copy pinpoint43. The only other case which was separately argued on behalf of the petitioners was Writ Petition No. 12570-72 of 1983. Mr. Vinod Arvind Bobde, the learned counsel for the petitioners, in· a brief sub- mission adopted the argument of Mr. Tarkunde and reiterated that the finding in the Patwardhan's case about the temporary posts bei)lg included in the main cadre was erroneous. The point has already been dealt with. c I,,,- 44. To sum up, we hold th11t:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appoint- D ment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post f cannot be taken into account for considering the seniority. E (B) If the initial appointment is not made by following the pro- cedure laid down by the rules but the appointee continues in - the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service - f will be counted. \ F \ (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the diffe- rent sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota G rule, it should be substituted by an appropriate rule to meet .A the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. H

938 SUPREME COURT REPORTS [1990] 2 S.C.R.

(E) Where the quota rule has broken down and the appoint- A ments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. B (F) Where the rules permit the authorities to relax the provi- sions relating to the quota, ordinarily a presumption should be rais!!d that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent c on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. D (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

(J) The decision dealing with importaqt questions concerning a E particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled positi~n. - With respect to Writ Petition No. 1327 of ,1982, we further hold: F (K) That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final. G In view of the above and the other findings recorded earlier, we do not A. find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, how- ever, no order as to costs. H G.N. Appeals and Petitions are dismissed.