S.S. BOLA AND ORS. ETC. v. B.D. SARDANA AND ORS. ETC.

A tion the same has to be scrupulously followed. But at the outset on going through the two earlier decisions of this Court in Sehgal (supra) and Chopra (supra) there should be no hesitation to come to the conclusion that the High Court was in error to hold that the State Government was not entitled to re-determine the cadre strength retrospectively every year and such re-determination is invalid and inoperative. On the other hand since the cadre strength had not been determined regularly though it was enjoined upon the State Government to do so this Court had called upon the State Government to re-determine the cadre strength and thereafter determine the inter se seniority of the direct recruits and promotees in terms of Rule 12 of Recruitment Rules bearing in mind the law laid down by this Court interpreting the different provisions of the Rules. The said conclusion of the High Court, therefore, must be quashed.

Now coming to the question as to how the initial appointees to the service are to be dealt with since in the two earlier cases this Court had never considered this question, the question assumes a greater significance.

The Rules framed under the proviso to Article 309 of the Constitu- tion came into force w.e.f. the June, 1961, the date on which the Rule was published in the Official Gazette Under sub- rule (1) of Rule 3, it is stipulated that the service shall comprise of such number of posts of ti.:: E Assistant Executive Engineers, Executive Engineers, Superintending En- gineers and Chief Engineers as may be specified by Government from tine to time. Under sub-rule (2) of Rule 3 the strength of the service for the first five years after the commencement of these rules shall be determined each year on the 1st day of January or soon thereafter as may be prac- F ticable according to the provisions of Appendix A and the strength so determined shall remain in force till it is revised. Sub-rule (2) of Rule 5 stipulates that the recruitment to the service shall be so regulated that the number of posts filled up by promotion from Class II Service shall not exceed fifty per cent of the number of posts in the Service, excluding the posts of Assistant Executive Engineers. Proviso to sub-rule (2) provides that till adequate number of Assistant Executive Engineers eligible and considered fit for promotion are not available the actual percentage of officer promoted from Class II service may be larger than 50%. Sub-rule (3) of Rule 5 speaks of a fictional situation namely in the service as constituted immediately after the commencement of these rules, it shall be assumed that the number of persons recruited by promotion from Class II '

S.S. BOLAv. B.D.SARDANA[PATTANAIK,J.) 571

• Service shall be 50% of the senior posts in the service and future recruit- A ment shall be based on this assumption. Sub-rules (1) and (2) of Rule 3 and sub-rules (2) and (3) of Rule 5 of 1961 Rules may be extracted hereinbelow in extenso :

"3. Strength of Seivice : (1) The. Service shall comprise of such number of posts of Assistant Executive Engineers, Executive En- B gineers, Superintending Engineers and Chief Engineers as may be specified by Government from time to time.

(2) Without prejudice to the generality of the provisions of sub-rule (1) the strength of the Service for the first five years after the C commencement of these rules shall be determined each year on the 1st day of January or as soon thereafter as may be practicable according to the provisions of Appendix A The strength so deter- mined shall remain in force till it is revised. D

5. Recrnitment to seivice : (2) Recruitment to the service shall be so regulated that the number of posts filled by promotion from Class II Service shall not exceed fifty per cent of the number of posts in the Service, excluding the posts of Assistant Executive Engineers; E Provided that till such time as an adequate number of Assistant Executive Engineers, who are eligible and considered fit for promotion, are available, the actual percentage of Officers promoted from Class II Service may be larger than fifty per cent. F

(3) In the service as constituted immediately after the commence- ment of these rules, it shall be assumed that the number of recruited by promotion from Class II Service is fifty per cent of the senior posts in the Service and further recruitment shall be G based on this assumption."

From a combined reading of the aforesaid provisions the following situation emerges :

(a) That the Rules came into force w.e.f. 9th of June, 1961 but the H

572 SUPREMECOURTREPORTS [1997]SUPP.2S.C.R.

A service existed even prior to the said date; (b) On constitution of the service immediately after the commence- ment of the Rules by operation of a fiction it was assumed that number of persons recruited by promotion from Class II service is 50% of the senior post in the service, This fictional situation emerges in view of sub-rule (3) of Rule 5, so that, the future recruitment to the service can be regulated appropriately under sub-rule (2) of Rule 5; and

(c) A duty was enjoined upon the State Government to determine the strength of the service each year on the 1st day of January or soon thereafter as may be practicable for the first five years after the commen- cement of the Rules and the strength thus determined year to year would remain in force till it is revised.

When recruitments were being made without determination of the cadre strength and statutory rules came into force for the first time on 9th of June, 1961 the Rules cast a duty on the Government to determine the cadre strength each year and thereafter make recruitment in terms of Rule 5 regulating the manner of filling up the post in the service subject to the provisions contained in sub-rule (2) of Rule 5. Rule 12 is rule for deter- . E mination of seniority. This Rule has already been interpreted by this Court in Sehgal and Chopra indicating the manner in which the seniority has to be determined inter se between the promotees and direct recruits. When State of Haryana came into existence and persons were serving in the erstwhile State of Punjab were drafted into State of Haryana and con- F stituted the initial cadre strength of the service in the State of Haryana and the Government of Haryana adopted the Punjab Rules of 1961 for deter- mining the service conditions of the employees it would be reasonable to hold that so far as the State of Haryana is conderned the Recruitment Rules came into force on 1.11.1966 and since the persons who constituted the service came from erstwhile State of Punjab depending upon their G domicile it would be further reasonable to construe that they constituted the service soon after the rules were adopted by the State of Haryana and thereafter Rule 5(3) should be attracted in respect of those 10 officers who constituted the service and by such application, by a fiction 50% should be treated to be promotees and on so treating them further recruitment to the v

H service was required to be regulated in accordance with sub-rule (2) of

S.S. BOLAv. B.D.SARDANA[PATIANAIK,J.] 573

Rule 5 and it is then the inter se seniority has to be determined under Rule A

12. In other words, out of 10 persons who were brought over from the erstwhile State of Punjab and constituted the service in the State of Haryana 5 will be assumed to have been recruited by promotion from Class II service by application of sub-rule (2) of Rule 5 even if factually all the 10 were promotees while they were recruited under the Punjab Rules. B Since· the initial cadre strength was only 10 of the total number of posts in the services, the Recruitment Rules by fiction held 50% of the persons constituted the service immediately after the commencement of the Rules to be promotees. Thereafter the State Government was duty bound to determine the cadre strength every year in the first five years as per sub-rule (2) of Rule 3 and in fact this direction had been given in the c earlier judgments in the case of Sehgal and Chopra and after such determination of the cadre strength if in a particular year it is found that the promotees have usurped the quota of direct recruit then such promotee cannot be held to be senior to the direct recruit notwithstanding their earlier recruitment to the service. If these principles are borne in mind then the gradation list which had been prepared by the State Government on 6.4.1992 was possibly the correct gradation list and the High Court was in error to quash the said gradation list on a conclusion that the earlier direction of this Court in Sehgal and Chopra has not been followed. Obviously, the High Court misunderstood the directions of this Court in the case Sehgal and Chopra. We are, however, not going to examine the said gradation list that was prepared on 6.4.1992 or any other gradation list which had been prepared subsequently during the pendency of these appeals, since in our view the Act having been come into force and the Act have been given retrospective effect the seniority has to be drawn up afresh in accordance with the provisions of the Act.

So far as the rules dealing with Irrigation Branch is concerned, the said rules namely Punjab Service of Engineers (Irrigation Branch) Class I Service Rules, 1964 has not been considered earlier by this Court at any point of time. One Shri M.L. Gupta was appointed to the post of Assistant G Executive Engineer as a direct recruit on 27.8.1971, pursuant to the result of a competitive examination held by the Haryana Public Service Commis- sion in December, 1970 said Shri Gupta was promoted to the post of ~ Executive Engineer on 17.9.1976. He made presentation to the State Government to fix up his seniority in accordance with the service rules but H

574 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A as the said representation was not disposed of for more than three years he approached the High Court of Punjab and Haryana by filing C.W.P. No. 4335 of 1984. That petition was disposed of by the High Court on the undertaking given by the State that the seniority will be fixed up soon. The said undertaking not having been complied with, said Shri Gupta ap- B preached the High Court in January 1986 by filing Contempt Petition. In September, 1986 the State Government fixed the inter se seniority of said Shri Gupta and other members of the service and Gupta was shown at serial no. 72. Two promotees had been shown at serial nos. 74 and 75. Those two promotees filed a writ petition challenging the fixation of inter se seniority between the direct recruits and promotees and High Court of C Punjab and Haryana by its judgment passed in May 1987 quashed the order dated 29.9.1986 whereunder the seniority of the direct recruits and promotees has been fixed and called upon the State Government to pass a speaking order assigning position in the gradation list. The State Govern- ment issued a fresh notification on 24.7.1987 giving detailed reasons re-af- D firming the earlier seniority which had been notified on 29.9.1986. Prior to the aforesaid notification of the State Government Shri Gupta had filed a writ petition in the Punjab and Haryana High Court which had been registered as CWP No. 6012 of 1986 claiming his seniority at No. 22 instead of 72 which had been given to him under the notification dated 29.9.1986. E The promotees also filed a writ petition challenging the Government order dated 24.7.1987 which was registered as CWP No. 5780 of 1987. Both the writ petitions, one filed by the direct recruit - Shri Gupta (CWP No. 6012 of 1986) and the other filed by the promotees (CWP No. 5780 of 1987) were disposed of by the learned Single Judge by judgments dated 24th F January, 1992 and 4th March, 1992 respectively, whereunder the learned Single Judge accepted the stand of the promotees and Shri Gupta was placed below one Shri OP Gagneja. Said Shri Gupta filed two appeals to the Division Bench against the judgment of the learned Single Judge, which was registered as Letters Patent Appeal Nos. 367 and 411 of 1992. The aforesaid Letters Patent Appeals were allowed by judgment dated 27th G August, 1992. This judgment of the Division Bench of Punjab and Haryana High Court was challenged by the State of Haryana in the Supreme Court which has been registered as C.A. Nos. 1448-49 of 1993. This Court granted -· leave and stayed the operation of the judgment in the matter of fixation of seniority. The promotees also challenged the said judgment of the Division H Bench in this Court which has been registered as CA Nos. 1452-1453 of _

S.S. BOLA v. B.D. SARDANA(PATIANAIK,J.] 575

1993. during the pendency of these appeals in this Court, an Ordinance A was promulgated on 13.5.1985 as Ordinance No. 6 of 1995 and the said Ordinance was replaced by the impugned Act of 20 of 1995 by the Haryana Legislature. The validity of the Act was challenged by said Shri Gupta and pursuance to the order of this Court the said writ petition having been transferred to this Court has been registered as T.C. No. 40 of 1996. So far B as the validity of the Act is concerned, the question of any usurpation of judicial power ,by the legislature does not arise in relation to Irrigation Branch inasmuth as the Recruitment Rules of 1964 framed by the Gover- nor of Punjab in exercise of power under proviso to Article 309 of the Constitution which has been adapted by the State of Haryana on and from the date Haryana was made separate State had not been considered by this C Court nor any direction has been issued by this Court. The legislative competence of the State legislature to enact the Act had also not been assailed and in our view rightly since the State legislature have the powers under Entry 41 of List - II of the Seventh Schedule to frame law governing the conditions of service of the employees of the State Government. That D apart Article 309 itself stipulates that the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State subject to the provisions of the Constitution. Proviso to Article 309 confers power on the President in connection with the affairs of the E Union and on the Governor in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service until provision in that behalf is made by or under an Act of the appropriate · Legislature under Article 309 main part. In this view of the matter, the legislative competence of the State Legislature to enact the legislation in question is beyond doubt. The only question which, therefore, arises for F consideration and which is contended in assailing the validity of the Act is that under the Act the direct recruits would lose several positions in the gradation list and thereby their as;crued and vested rights would get jeop- ardised and their future chances, of promotion also would be seriously hampe;red and such violation tantamounts violation of rights under Part - G III of the Constitution. For the reasons already given while dealing with the aforesaid contention in connection with the Public Health Branch and the Roads and Building Branch the contention raised in the Transfer Case cannot be sustained and, therefore, the Transfer Case would stand dis- missed. The Act in question dealing with tl1e service con<l.iticm. of the H

576 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A engineers belonging to the Irrigation Branch must be held to be a valid piece of legislation passed by the competent legislature and by giving it retrospective effect no constitutional provision has been violated nor any right of the employee under Part - III of the Constitution has been infringed requiring interference by this Court.

B So far as the four appeals are concerned, one at the instance of the State and other at the instance of the promotee engineer, even though it is not necessary to examine those appeals since the inter se seniority of the members of the service will:have to be re-drawn up in accordance with the provisions of Act, yet arguments having been advanced by the learned C advocates appearing for the parties, we may briefly deal with the same. The Division Bench of the Punjab and Haryana High Court in disposing of the Letters Patent Appeal in favour of the direct recruit has come to the conclusion that the interpretation given by the Supreme Court to the Recruitment Rules dealing with the Public Health Branch and the Roads D and Building Branch in Sehgal and Chopra would equally apply to the Irrigation Branch. In coming to the aforesaid conclusion the learned Judges of the High Court nave failed to appreciate the difference between the rules dealing with the irrigation Branch and the two set of rules dealing with the Public Health Branch and the Roads and Building Branch. So far as the rules dealing with the Irrigation Branch is concerned, Rule 2(12)(c) makes a promotee officer on probation or having successfully completed his probation awaiting appointment to a cadre post to be a member of the service which was not the position in the Public Health Branch as well as in the Roads and Building Branch. Then again under Rule 5(2) the percentage or promotees was required to be so regulated so as not to exceed 75% of the number of posts in the service for the first 10 years from the date of the commencement of the Rules and thereafter it shall not exceed 50% of the number of posts in the service excluding the posts of Assistant Executive Engineer. Proviso to the aforesaid rule also entitles the Government to grant permission beyond 75% during the first 10 years of the commencement of the rules and beyond 50% thereafter in case suffi- cient number of direct recruits - Assistant Executive Engineers are not available and considered fit for promotion. Rule 12 which deals with the determination of inter se seniority is also somewhat different than the similar rule for the Public Health Branch and the Roads and Building H Branch which had been considered by this Court in the cases of Sehgal and

S.S. BOLA v. B.D. SARDANA[PATIANAIK,J.] 577

Chopra. In this view of the matter, the Division Bench of the Punjab and A Haryana High Cou.rt was not justified in disposing ?f the appeal relying upon the earlier decisions of this Court in A.N. Sehgal's case. The learned Judges have not focussed their attention to the difference in the rules meant for the Irrigation Branch and the Rult<s meant for the Public Health Branch and Roads and Building Branch. The impugned judgment, there- B fore, passed by the Division Bench of the Punjab and Haryana High Court is erroneous and cannot be sustained. 6ut as has been stated earlier it is not necessary to delve into the question in a more detailed manner since the Act having come into force and the Act being made effective retrospec- tively w.e.f. 1.11.1966, the date on which the State of Haryana was formed, C the inter se seniority has to be determined in accordance with the provisions of the Act. Consequently, the judgment of the Punjab and Haryana High Court in LPA Nos. 367 and 411of1992 is set aside and the State of Haryana is directed to re-determine the inter se seniority of the members of the service belonging to the Irrigation Branch in accordance with the provisions of the Act. Civil Appeal Nos. 1448-1449 of 1993, D 1452-1453 of 1993 and T.C. No. 40 of 1996 are disposed of accordingly.

In the ultimate result, therefore, we hold Haryana Act 20 of 1995 is intra vims except part of Section 25 which has been held to be ultra vims. The Act having been given retrospective effect with effect from 1.11.1966 E the inter se seniority of direct recruits and promotees in each of the services, namely, the PWD Branch,· the Public Health Branch and the Irrigation Branch will have to be re-drawn up in accordance with the provisions of the Act. The seniority lists already drawn up subsequent to the judgment ofihis Court in the case of Sehgal and Chopra and as well F as during the pendency of these appeals in this Court are of no conse- quence in view of the Act coming into force. It is, however, made clear that any promotion already given on the basis of seniority determined by the Government under the pre-existing rules will not be annulled notwithstand- ing any change in the seniority to be determined under the Act. The G impugned judgments of Punjab and Haryana High Court are set aside. The State Government is directed to re-consider the question of seniority of the employees of the three Branches under the Act within a period of six months from today and to give consequential promotion on that basis soon thereafter. H

578 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A All the appeals and the transfer cases are disposed of accordingly.

S. SAGHIR AHMAD, J. I have had the advantage of going through the judgment prepared separately by Brother Ramaswamy and Brother Pattanaik. I agree with Brother Pattanaik on all the questions involved in this case, but I want to add a few words of my own without setting out the facts of the case which have already been reproduced in the two Judg- ments.

2. To declare what the law is or has been is a judicial power. To declare what the law shall be is a legislative power. This is the principle deducible from the decision of the Federal Court in Basanta Chandra v. Emperor, AIR (1944) FC 86 (90) and Ogden v. Black Ledge, (1804) 2 Lawyers Edition 276 (278).

3. It would be within the exclusive domain ofjudiciary to expound the law as is it and not to speculate what it should be as it is the function of the Legislature. It is also within the exclusive power of the judiciary to hold that a Statute passed by the Legislature is ultra vires. The Legislature in that situation does not become a helpless creature as it continues to remain a living pillar of a living Constitution. Though it cannot directly override the judicial decision, it retains the plenary powers under Articles 245, 246 and 248 to alter the law as settled or declared by judicial decisions. This is what was observed by this Court in Mis. Anwar Khan Mahboob Co. v. State of Madhya Pradesh, (1966] 2 SCR 40, which had the effect of indirectly overruling its previous decision in Finn C.J. Patel & Co. & Ors. F v. 17ie State of Madhya Pradesh, AIR (1953) SC 108. The Legislature can also validate an Act which was declared invalid by the Court or amend it with retrospective effect so as to remove the grounds of its im :,Jidity. (See : Rai Ramkrishna & Ors. v. State of Bihar, (1964) 1 SCR 897 and Mt. Jadao Bahuji v. Municipal Committee, Khandwa & Anr., AIR (1961) SC 1486).

4Copy pinpoint4. The power to make a law includes the power to give it retrospec- tive effect subject to the restriction imposed by Article 20( 1) that a Legis- lature cannot make retrospective penal laws. It would be valid for the Legislature to make any other enactment with retrospective effect provided no Fundamental Right is infringed by reasons of its taking away the vested right. Under the scheme of the Constitution, it is competent for the

S.S. BOLAv. B.D.SARDANA[S.SAGHIRAHMAD,J.] 579

Legislature to put an end to the finality of a judicial decision and, therefore, it would be competent for the Legislature to render ineffective the judg- ment of the court by changing the basis of the Act upon which that judgment was founded (See : Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors., (1970] 1 SCR 388 = (1969] 2 SCC 283; In re: Cauvery Water Disputes Tribunal, AIR (1992) SC 522.(1993] Supp. 1 SCC B 96). Hidayatullah, CJ. in Shri Prithvi Mills case observed as under :

"When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. 0

A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances." E This decision was considered in Madan Mohan Pathak v. Union of India & Ors., [1978] 3 SCR 334 = (1978j 2 SCC 50, but was not doubted by the majority view in that case.

5Copy pinpoint5. In Bhubaneshwar Singh v. Union of India, [1994) 6 SCC 77, it was observed that any action in exercise of the power under an enactment, which has been declared invalid by a Court, cannot be made valid by merely saying so unless the defect which has been pointed out by the Court is removed with retrospective effect. It was further observed that the Validating Legislation must remove the cause of invalidity. It was further observed that till such defect as was pointed out by the Court in a Statute was removed by the subsequent enactment with retrospective effect, the binding nature of the judgment of the Court cannot be ignored. In a situation of this nature, it would be open to the Legislature to pass a Validating Act, even with retrospective effect, removing the defect or the H

580 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A ground on which the Statute was held to be bad or ultra v1res.

6Copy pinpoint6. Where, however, the statutory provision is interpreted by the Court in a particular manner and directions are issued for implementing the judgment in the light of the interpretation placed on the statutory B provisions, the Legislature need not pass a Validating Act. In this situation, the Legislature, in exercise of its plenary powers under Articles. 245, 246 and 248 can make a new Act altering fundamentally the provisions which were the basis of the judgment passed by the Court. This can be done with retrospective effect. So far as service conditions are concerned, they can be altered with retrospective effect by making service rules under Article C 309 or by an Act of the Legislature.

7Copy pinpoint7. In the instant case, the judgments rendered by this Court in the earlier decisions relating to the seniority of the present incumbents were founded on the service rules then existing. These service rules have since D been replaced by the impugned Act which has been enforced with retrospective effect. The various aspects of merits have been considered by my Brother Pattanaik and I cannot usefully add any further words on merits. I fully agree and endorse that in view of the settled legal position, specially those set out in the decisions referred to earlier as also in Comorin E Match lndustlies (P) Ltd. v. v. State of Tamil Nadu, (1996] 4 SCC 281; Indian Aluminium Company v. State of Kera/a, (1996] 7 SCC 637; and Meerut Developmellf Authority & Ors. v. Satbir Singh & Ors., (1996] 11 SCC 462, the impugned Act, namely the Haryana Act XX of 1995 is valid to the extent indicated by Brother Pattanaik. In this case the rule of seniority has F been altogether altered and replaced by a new law made with retrospective effect so as to do away the mischief under which an undue advantage was being provided to a direct recruit, which was wholly inequitous and not sustainable on the principles of equity.

8Copy pinpoint8. I also agree that the judgments of the Punjab & Haryana High G Court are liable to be set aside, with a direction to the State Government to re-determine the question of seniority in the light of this judgment and the Haryana Act XX of 1995.

9Copy pinpoint9. The Civil Appeals, the Writ petition and the Transferred Cases H are disposed of accordingly with no order as to costs.

S.S. BOLA v. B.D.SARDANA(K.RAMASWAMY,J.] 581

K. RAMASWAMY, J. Applications for impleadment allowed. A

These appeals and transfer cases are wrapped up of complex facts interwoven with diverse principles in service jurisprudence, compounded by legislative intervention impinging upon judicial review by enacting Act 20 of 1995 to regulate the conditions of service of persons appointed to the B Haryana Service of Engineers, Class-I, Public Works Department (Build- ings and Roads Branch), (Public Health Branch) and (Irrigation Branch) respectively. The said Act 20 of 1995 (for short, the 'Act') came into force with effoct from November 13, .1995. It amended and repealed the

- Haryana Service of Engineers, Class-I, PWD (Buildings and Roads" Branch), (Public Health Branch) and (Irrigation Branch) Rules, Irrigation C Branch by Ordinance 6 of 1995. The latter repealed the Punjab Service of Engineers, Class-I, PWD (Roads and Buildings Branch), (Public Health Branch) Rules 1960 and (Irrigation Branch) Rules, 1961 issued under Proviso to Article 309 of the Constitution (for short the 'Rules'). The Act was given retrospective effect from 1st day of November, 1966, the date on which the State of Haryana was formed by bifurcation of the former State of Punjab.

The cases have their chequered history. On the date of formation of the State of Haryana, the respective services were manned by and constituted of ten promotee officers allotted from the former State of Punjab. All of them were from Haryana (erstwhile Punjab) Class-II subor- dinate officers. The respective repealed Rules constituted Haryana Ser- vices of Engineers, Class-I, PWD consisting of Buildings and Roads Branch, Public Health Branch and Irrigation Branch respectively which were governed by the statutory repealed Rules. The class-I service of Engineers consists of the Executive Engineers, Superintending Engineers and Chief Engineer. Subsequently, the post of Engineer-in-Chief was added in the respective branches. The Assistant Executive Engineers are the feeder cadre to the said Class-I Service; they are drawn by way of direct recruitment. Haryana (erstwhile Punjab) Class-II, Subordinate service was also feeder channel for appointment by promotion, as Executive Engineers and thereafter as Superintending Engineers or Chief Engineers or En- gineer in Chief, as the case may be. The respective repealed Rules and the Act contained a provision for appointment by transfer from any other State or Central Service; however, none was appointed from that feeder channel. H

582 SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A Therefore, these cases do not concern that group and ·it has now become a dried up source. As stated, as on November 1, 1966, ten posts, each manned by promotee personnel, were allotted to the respective Branches of Haryana Services of Engineers, Class-I. The Rules provided the ratio of recruitment in Buildings and Roads and Public Health branches, viz., 50% B to the direct recruits and 50% to the promotees. In the irrigation Branch, for the first eight years, the ratio between promotees and direct recruits was 75% and 25%; thereafter, it became 50 : 50 as in other two branches. Though the Rules provided for creation of the cadre posts every year under Article 3 read with Appendix-A of the respective repealed Rules, the State C failed to demarcate the cadre posts; nor did it operate the services in strict conformity with the respective quotas as per the repealed Rules. As usual, it led to the acrimony between the promotees and the direct recruits; their - inter se seniority, which is a perennial and unending source of litigation, has again given rise to these appeals and transferred writ petitions filed in the High Court of Punjab & Haryana. D The usual endless acrimony for seniority, between promotees and direct recruits, when the former are interjected into the service due to lapse of regular direct recruitment and their passage into Class-I service, is being met with turbulence for faculty transposition channels. The unsuccessful writ petitions filed in the High Court by promotees were dealt with in appeals by this Court concerning Buildings and Roads and Public Health Branches inA.N. Sehgal & Ors. v. Raja Ram Sheoran & Ors., [1992] Supp. 1SCC304 and S.L. Chopra & Ors. v. State of Haryana & Ors., [1992] Supp. 1 SCC 391. Therein, Dr. B.D. Sardana of Public Health Branch was one the contesting respondents. The third stage now intermingled with the chains from the prornotees in Irrigation Branch which undoubtedly was not dealt with on the previous occasion. They came to be linked with the two branches and together dealt with in the Ordinance and the Act as well as by the High Court. The respective repealed Rules stand now wiped out from the statute after the corning into force of the Act with retrospective effect, i.e., from November 1, 1966.

Instead of dealing again with the repealed Rules of the respective Branches, it would be appropriate, advantageous and of necessity to reiterate from Sehgal and Chvpra's cases the findings and mandamus issued by this Court. The judgments now stand repealed by legislative judgment

S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.) 583

from ex-facie tenner under the Act. Though the facts are baffling, questions of law are diverse and the intricacies of judicial review, all require careful examination for resolution of the controversy. The galaxy of the senior counsel representing the promotees and the counsel for the State made their bee-line herculean efforts to sustain the constitutionality of the Act and the consequential seniority determined on its basis. On ultimate analysis, after deep probe and independent investigation, we find that the valiant arguments of the respective counsel for State and the promotees, if given acceptance would lead to destruction of the vitality of judicial review; resultant husk would remain for the successful party; and the mandamus issued by this court would bear no fruit. Thus, the revelation of emerging results given us deeper anxiety to have a pervasive fresh look into the legal setting and constitutional contours; and to set out our soujourn to tread on delicate track. Founding Fathers of the Constitution fondly entrusted, expressly, to this Court "as worthy Judges", in the language of Dr. K.K. Munshi, the doyan of the Bar and prominent member of the Constitution, as per the solemn oath tak_en, to uphold the Constitution, to dispense justice according to constitution and the law without fear or favour, affec- tion or ill-will. This case calls for decision on the delicate task of judicial revit;w of legislative act and we solemnly undertake hereunder, to discharge that onus constitutional duty. E As stated earlier, it is not necessary to reiterate the relevant provisions of the repealed statutory Rules governing Buildings and Roads Branch and Public Health Branch since they have been extensively dealt with by a Bench of two Judges (to which one of us, K.R.S., J., was a member) in Sehgal and Chopra's cases relieving us of the task to tread the path once over; it would be sufficient to record those findings and the mandamus issued with directions contained therein for compliance. At the outset, we may state that when the Bench dealt with the matter in Sehgal and Chopra's cases, a pointed question was put to the counsel then appear- ing, whether it would be advantageous to decide the question of law without determination of the cadre posts and fixation of the inter se seniority between promotees and direct recruits. The learned counsel for the parties, including the State, informed this Court of their difficulty in understanding the scope of the Rules and requested this Court to declare the law on the Rules and leave it to the State to determine inter se seniority on the basis of the law so declared. Acceding to that request, the Division H

584 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Bench considered all the relevant Rules, declared the law and gave the directions to the State Government and the mandamus for compliance thereof. In Sehgal's case, in para 6 at page 309, this Court had observed that the service shall comprise Assistant Executive Engineers, Superintend- ing Engineers and Chief Engineers. "Rule 3(2) read with Appendix 'A' enjoins the State of Haryana to determine the cadre strength of service each years, Appendix 'A' lays down the procedure for determination of the cadre strength of service. The senior posts include Executive Engineers and above while the junior scale posts include Assistant Executive Engineers", be it cadre or ex-cadre posts. "Rules 6 and 7 prescribed qualification and method of appointment by direct recruitment. Sub-rule (3) of Rule 7 states that appointment to the service shall be made according to the number of vacancies to be filled up by direct recruitment strictly in the order of merit". Rule 11(1) regulates and operates probationary period. On satisfactory completion of the probation by operation of Rule 11(3)(a), the direct recruits get confirmation into the service and those whos~ service is found unsatisfactory become liable to be discharged from service. As stated earlier, the post of Assistant Executive Engineers was a junior scale post which is integral to the service and Rule 12(3) prescribes the year of allotment as the calendar year in which the order of appointment is issued by the Government.

E In para 7, it is stated that Rule 2(1) defines appointment to service which includes an appointment made according to the terms and provisions of the rules to an officiating vacancy or to ex-cadre post provided that an officer so appointed shall not be deemed to have become a member of that service as defined in Rule 2(12). The Assistant Executive Engineer, F though appointed to an ex-cadre post, since he is appointed by direct recruitment, becomes a member of the service from the date of his appoint- ment as the Assistant Executive Engineer; though he performs the duty of an ex-cadre post awaiting appointment to a regular post, on satisfactory completion of the probation and its confirmation, the seniority dates back G to the date of appointment. Therefore, the date of his appointment as Assistant Executive Engineer and his becoming a member of the service remain unalterable. It was held in paragraph 8 as under :

"A reading of the rules clearly indicates that an Assistant Executive H Engineer appointed by open competition to a substantive vacancy

S.S. BOLA v. B.D.SARDANA[KRAMASWAMY,J.) 585

in a cadre post and put on probation is a member of the service. A Equally such Assistant Executive Engineer recruited by open com- petition and appointed to an ex-cadre post and put on probation and who having successfully completed his probation and awaits appointment to a cadre post would also become a member of the service." B In paragraph 9, it was held that "Para ll(b) of Appendix 'A' read with Rule 3(2), while determining the cadre strength of the service, it adumbrates creation and appointment of Assistant Executive Engineers (direct recruit) to an ex-cadre junior scale post in each year. Therefore, in a given situation, a direct recruit appointed to an ex-cadre post, cannot be kept in lurch until he is appointed to a cadre post so as to become a member of the service. Obviously to avoid such a hiatus, Rule 2(12)(a) was introduced. The main part of Rule 2(12)(a) declares that an appointee substantively to a cadre post i.e., permanent post is a member of the service. The inclusive definition brings out that an officer appointed by direct recruitment and put on probation in an ex-cadre post, who having successfully completed probation and awaits appointment to a cadre post, is also a member of the service." "The words 'and such an officer' 'directly appointed' would obviously be referable to an Assistant Executive En- gineer directly appointed to an ex-cadre post who is entitled to be placed on probation and on successful completion awaits appointment to a cadre post. By operation of the definition clause, he ~!so becomes the member of the service from the date of initial appointment. This view is further fortified by the definition of the appointment to the service in Rule 2(1) which says that appointment to the service includes an appointment made, according to the terms and provisions of these rules, to an officiating vacancy or to an ex-cadre post. Rule 2(7) says that direct appointment means appointment by open competition but excludes 'promotee' or 'transferee'. So a promotee promoted to an officiating vacancy or an ex-cadre post does not become a member of the service unless he is appointed substantively to a cadre post. We, therefore, hold that a direct recruit appointed to an ex-cadre post alone is a member of the service even while on probation and Rule 2(12)( a) applies to them and it does not apply to a promotee from Class II service."

In para 12, it was held that "It is settled law that prescription of quota H

586 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A for recruitment from different sources is constitutionally a valid rule." Para 13 dealt with quota of 50% to the promotees as Executive Engineer, Superintending Engineer and Chief Engineer and it was found in para- graph 12 that 50% of the post as Executive Engineer, Superintending Engineer and Chief Engineer shall be occupied only by direct recruit B Assistant Executive Engineers. It may be made clear at this juncture that the entire Haryana Service of Engineers Class-I, PWD compositly consists of Executive Engineers, Superintending Engineers, Chief Engineers and Engineer-in-Chief in the respective Branches. It was, therefore, held that 50% quota between direct recruits and promotees would apply to all posts C of Executive Engineers, Superintending Engineers and Engineer-in-Chief unlike in some other State/Central services, Executive Engineers, Superin- tending Engineers etc. are not each a separate cadre. '· In para 19 at page 317, it was held as under :

D "19. It is ;;ettled law that "appointment to a post in accordance with the rules is a condition precedent and no one can claim appoint - ment to a post or promotion, as of right, but has a right to be considered for promotion in accordance with the rules. Appoint - ment by promotion or direct recruitment, therefore, must be in accordance with the rules so as to become a member of the service E in a substantive capacity. Seniority is to be fixed in accordance with the principles laid down in the rules."

The rights of promo tees were considered in par a 20 thus :

F "20. Rule 8 prescribes procedure for appointment by promotion from Class II service. Rule 9(2) states that promotion would be made by selection on the basis of merit and suitably in all respects and no member of the service shall have any claim, to such promotion as a matter or right by mere seniority. The committee as constituted under Rule 8 shall prepare the list of officers considered fit for promotion in the order of merit and on approval by the Public Service Commission, the State Government shall appoint the persons from the list in the order in which the names have been placed by the Commission. Appointment by promotion may be made under Rule 8(12) to an ex-cadre post or to any post

S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.] 587

in the cadre in an officiating capacity from the list prepared as aforesaid. On promotion, as per Rule 11(1), officer shall be on probation for a period of one year, but if the officer had been officiating as an Executive Engineer the period of officiation would be counted towards probation. Rule 11(4) provides that on satis- factory completion of the probationary period, the government confirms the officiating promotee and "appoint him in a substantive capacity on a cadre post provided the post is available to him". If no cadre post is available, the officer has to wait for an appoint- ment to the cadre post."

Accordingly, the promotee officers from the subordinate Class II c service as Executive Engineer under Rule 9 read with Rule 8 constitute a source of recruitment by promotion to Haryana Engineers Service Class-I. By operation of Rule 11(4), the probationer promotee gets appointed in a substantive capacity on ".a cadre post available to him". If no cadre post is available the promotee has to wait for an appointment to the cadre post. D As regards the quota between direct recruits and promotees, in para 12, this Court considered the operation of Rule 5 and its effect and held that "recruitment to the service 'shall be so regulated that the number of posts so filled by promotion from Class II Service shall not exceed 50% of the number of posts in the service excluding the posts of Assistant Executive E Engineer'; provided that till such time the adequate number of Assistant Executive Engineers who are eligible and considered fit for promotion are available, the actual percentage of officers promoted from Class II service may be larger than 50 per cent". It was concluded thus : F "A reading thereof clearly manifests the legislative animation, namely, that the promotees from Class II service shall not exceed 50% of the posts in the service. The word 'shall' indicates that it is mandatory that the remaining 50% posts shall be kept open only to the Assistant Executive Engineers who were directly recruited G but later were found eligible and fit for promotion as Executive Engineers. Therefore, unless the government resorts, exceptionally with prior permission of Public Se~vice Commission, vide Rule 10 to recruitment by transfer of an officer from other service of the State Government or of the Union, the remaining 50% of the posts of Executive Engineers, Superintending Engineers and Chief En- H

588 SUPREME COURT REPORTS (1997) SUPP. 2 S.C.R.

A gineers shall be occupied only by the direct recruit Assistant Executive Engineers."

It is settled law that prescription of quota for recruitment from different sources is constitutionally a valid rule. It may be necessary to recapitulate that the service consists of Junior Scale posts; Class II Assis- B tant Executive Engineers and Class-I posts are of Executive Engineers, Superintending Engineers and the Chief Engineers. Thus, the entire cadre posts are held by the promotees and direct recruits from the stage of ·Executive Engineers to the stage of Engineer-in-Chief in the ratio of 50 : 50 between direct recruits and the promotees. c The effect of Rule 5 and the result of 50% quota to the promotees from Class II service was dealt with in para 13 and stated as under :

"The intendment appears to be that so long as the direct recruit Assistant Executive Engineer eligible and considered fit for promotion is not available, the promotee from Class II service in excess of the quota is eligible to occupy in officiating capacity in the senior posts, i.e., Executive Engineers a'nd above. The moment direct recruits are available, they alone are ··entitled to occupy 50% of their quota posts (Class-I) and the promotees shall give place to the direct recruits."

The need to blend the direct recruits and promotees is to augment efficiency of the service. It was dealt with in paragraph 17 and 18 which read as under :

F "17. With a view to have efficient and dedicated services account- able for proper implementation of governinent policies, it is open and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with i:o_nstitutional commitments, enthusiasm, drive and initiative by direct recruit- G ment, blended with matured wealth of experience from the subor- dinate services. It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordii'.ate service or transfer from other services. Promotee from Subordinate service generally would get few chances of promotion to higher ecltelons of service.

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 589

Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts. Talent is not the privilege of the few but equal avenues made available would explore common man's capabilities over- coming environmental adversity and open up full opportunities to develop one's capabilities to shoulder higher responsibilities without succumbing to despondency. Equally talented young men- women of great promise would enter into service by direct recruit- ment when chances of promotions are attractive. The aspiration to reach higher echelons of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straight forwardness with missionary zeal exercising effective control and supervisions in the implementation of the programmes. The chan- ces of promotion would also enable a promotee to imbue involve- ment in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices, lest one would tend to become corrupt, sloven and mediocre and a deadwood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and undue emphasis on either would upset the scales of equality germinating the seeds of degeneration." E

"18. With a view to achieve this object, the rule- making authority envisaged to appoint direct recruits as well as by promotion from Class II Service otherwise by transfer from other services. In interpreting the rules, effect must be given to allow everyone drawn from these sources to have their due share in the service and chances of involvement to effectively discharge the duties of the posts honestly and efficiently with dedication. Any wanton or deliberate deviation in the implementation of the rules should be curbed and snubbed and the rules must be strictly implemented to achieve the above purpose. If wanton deviations are allowed to be repeated, it would breed indiscipline among the services and amount to undue favour to some and denial of equality for many for reasons known or unknown subverting the purpose of the rules." H

590 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A The interplay of seniority between direct recruit Assistant Executive Engineers and promotee Clause II subordinate service Engineers for · promotion as Executive Engineer was dealt with in para 21 which reads as under:

B "21. A promotee within quota under Rule 5(2) gets his seniority from the initial date of his promotion and the year of allotment, as contemplated in Rule 12(6) shall be the next below 'the junior- most officer in the service whether officiating or confirmed as Executive Engineer before the farmer's appointment' counting the c entire officiating period towards seniority, unless there is break in the service or from the date of later promotion. Such promotee, by necessary implication, would normally become senior to the direct recruit promoted later. Combined operation of sub-rules (3) to (5) of Rule 12 makes the direct recruit a member of the service of Executive Engineer from the date of year of allotment as an D Assistant Executive Engineer. The result is that the promotee occupying the posts within 50 per cent quota of the direct recruits, acquired no right to the post and should yield to direct recruit, though promoted later to him, to the senior scale posts i.e., Ex- ecutive Engineer, Supt;rintending Engineer and Chief Engineer. E The promotee has right to confirmation in the cadre post as per Rule 11(4) if a post is available to him within his quota or at a later date under Rule 5(2) read with Rule 11(4) and gets appoint- ment under Section 8(11), his seniority would be reckoned only from the date of the availability. of the post and the year of allotment, he shall be next below to his immediate senior promotee of that year or the juniormost of the previous year of allotment whether officiating or permanent occupying the post within 50 per cent quota. The officiating period of the promotee between the dates of initial promotion and the date of the availability of the cadre post would thus be rendered fortuitous and stands excluded. A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods and interjects the promotee's seniority; snaps the links in the chain of continuity and steals a march over the approved promotee probationer. Har- H monious construction of Rules 2(1), 2(3), 2(7), 2(10), 2(12)(a),

S.S. BOLA v. B.D. SAR.DANA [K. RAMASWAMY, J.j 591

5(2)(a), 8, 9(2), 11, 12(3), 12(5) to 12(7) would yield to the above result, lest the legislative animation would be defeated and the rules would be rendered otiose and surplus. It would also adversely affect the morale and efficiency of the service. Mere officiating appointment by promotion to a cadre post outside the quota; continuous officiation therein and declaration of probation would not clothe the promotee with any right to claim seniority over the direct recruits. The necessary conclusion would, therefore, be that the direct recruit shall get his seniority with effect from the date of the year of allotment as Assistant Executive Engineer which is not alterable. Whereas the promotee would get his seniority with effect from the date of the availability of the posts within 50 per cent quota of the promotees, the year of allotment is variable and the seniority shall be reckoned accordingly. Appointment to the cadre post substantively and confirmation thereof shall be made under Rule 8(11) read with Rule 11(4) of the Rules. A promotee D Executive Engineer would only then become member of the ser- vice. 'Appointed sub;tantively' within the meaning of Rule 2(12)(a) shall be construed accordingly. We, further hold that the seniority of the promotee from Class II service as Executive Engineer shall. be determined with effect from the date on which the cadre post was available to him and the seniority shall be determined accord- E ingly."

Ultimately, the directions were given in para 28 as under :

"We accordingly, direct the Government of Haryana to determine the cadre posts, if not already done, regularly from time to time including the posts created due to exigencies of service in terms of Rules 3(2) read with Appendix 'A' and allot the posts in each year of allotment as contemplated under Rule 12 read with Rule 5(2)(a) and issue orders appointing substantively to the respective posts within the quota and determine the inter se seniority between the appellant-promotees and R.R. Sheoran, direct recruit in the respective quota cadre posts of Executive Engineers etc. within four months from the date of receipt of this judgment. The inter se seniority of promotees and direct recruits shall be determined accordingly. All the impugned pro11Hltinns or those pending H

592 SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.

A proceedings in the High Court or in this Court shall be subject to the above determination and the status quo would continue till the appointments according to the rules are made and seniority is determined in the light of the law declared in this judgment. The appeal is disposed of accordingly. In the circumstances, parties are directed to bear their respective costs." B Similarly, in Chopra's case, the same consideration was adopted and ultimately in paragraphs 11 and 12, this Court had given the directions as under:

c "11. As far as the appellants are concerned, they shall be con- sidered for appointment to a substantive vacancy against a cadre post within their 50 per cent quota of the promotees and their seniority would be counted next below the immediate senior promotee of the same year or juniormost promotee of the preced- ing year of allotment either officiating or confirmed, in accordance with sub-rules (6) and (7) of Rule 12 and Rules 8(11) and 11(4). The year of allotment is accordingly, alterable. If a promotee Class II officer holds the cadre post within the quota of direct recruit, his period of service from the date of initial promotion till the date of availability of a cadre post is rendered fortuitous. A direct recruit though promoted later steals a march over the promotee and gets right to consideration and if found fit gets promotion within his 50 per cent quota and thereby becomes senior to the officiating promotee."

F "12. Therefore, the State Government is directed to determine the cadre strength in the Haryana Service of Engineers, Class I, PWD (Public Health Branch) under the rules, Executive Engineers, Superintending Engineers and Chief Engineers, consider the cases of the appellants and the contesting respondents B.D. Sardana, F.L. Kansai for promotion to the senior posts of Executive En- G gineers, Superintending Engineers and Chief Engineers respective- l ly with the respective quota of 50 per cent and make appointment, if found eligible and fit for promotion. This exercise shall be done within four months from the date of the receipt of the order. The impugned pro~otions or any appointment made pending the writ petitions in the High Court or appeals in this Court are subject to

S.S. BOLA v. B.D.SARDANA[K.RAMASWAMY,J.) 593

the above diredions. The status quo as of today will continue till the government carries out the directions. The appeal and the writ petition are accordingly disposed of and Civil Appeal No. 2316 of 1986 is dismissed but in the circumstances parties are directed to bear their own costs."

Though time given under the above directions had expired, the State B Government failed to comply with directions and we are informed that in the meanwhile some of the promotees who were not eo-nominee parties to the appeals before this Court, filed the writ petition in the High Court, R. Sheoran, promotee from Buildings and Roads Branch had filed a contempt petition and this Court accepted the unconditional apology for the contrite C and contumacious conduct committed by them in implementation of the directions and disregard for the implementation of the mandamus, due to advice tended to them; this Court directed them by order dated March 31, 1995 to redetermine the seniority in that behalf afresh in the light of the directions contained in the judgment as well in the order dated March 31, D 1995; we are informed that it has been done.

Dr. B.D. Sardana though filed a contempt petition, since a writ petition was already pending in the High Court, we felt it expedient to have the matter decided by the High Court in the light of the law laid down by this Court. Similarly, J.K. Dewan and other promotees in Irrigation Branch claimed seniority over M.L. Gupta, the direct recruit Assistant Executive Engineer appointed w.e.f. August 21, 1971. They claimed that they were promoted as Executive Engineers on different dates between March 19, 1970 to November 30, 1973 and M.L. Gupta completed his 5 years' tenure as Assistant Executive Engineer with effect from September 17, 1976 by which date the promotees had already completed their probation period and were confirmed as Executive Engineer. Therefore, they claimed seniority over the direct recruit, M.L. Gupta and Subsequent direct recruits. Their claim was not acceded to and the final seniority was pub- lished by the Government. The seniority list was prepared on September G 29, 1986 which was the subject matter of the Writ Petition No. 5082 of 1986 m which the High Court had directed by an order of the aforesaid date to determine the seniority by passing a speaking order and quashed their seniority accordingly. Similarly, Writ Petition No. 6182 filed by the direct recruit, M.L. Gupta claiming seniority uver promotee Executive Engineer H

594 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A was also disposed of. The financial Commissioner by his proceedings dated July 23, 1987 ordered that the promotees should be placed as juniors to M.L. Gupta though they were promoted earlier to him. That gave rise to Writ Petition No. 5780/87 filed by the promotees against M.L. Gupta claiming seniority over him. The learned Single Judge dismissed the writ petition filed by M.L. Gupta and allowed the writ petition filed by the promotees by his order dated January 24, 1992 and held that the promotees were senior to the direct recruits. The L.P.A. Nos, 367 and 411 of 1992 filed by M.L. Gupta were allowed by the Division Bench by judgment dated August 27, 1992 and it was held that M.L. Gupta is senior to the promotees and, therefore, the promotee should be ranked junior to him. That gave rise to number of appeals filed by the promotees as well as the ·State Government. In M.L. Gupta's case Division Bench had given directions as under:

"For the reasons recorded above, both the Letters Patent Ap- D peals are allowed. The judgment of learned Single Judge in both the cases are set aside. Civil Writ Petition filed by Devki Nandan Pant and others stands dismissed whereas Civil Writ Petition filed • by M.L. Gupta is allowed. The order fixing seniority of M.L. Gupta vis-a-vis respondent Nos. 2 to 42 is quashed. The promotion of E respondent Nos. 2 to 42 to the post of Superintending Engineer and above considering them senior to M.L. Gupta also stands quashed. Direction is given to the respondents to re-fix the seniority of members of the service treating M.L. Gupta as senior to respondent Nos. 2 to 42 allocating necessary years of allotment arid thereafter pass orders of confirmation and promotion respec- F tively with retrospective effect from the date the posts became available for confirmation and promotion."

As stated earlier, Mr. Sardana challenged the seniority prepared by the Government contrary to the mandamus issued in Chopra's case. G Similarly, the promotees filed writ petition in the High Court. While determining the inter se seniority as per the directions of this Court, the Financial Commissioner had temerity to express himself in writing that the judgments of this Court were iniquitous against the promotees; therefore, he followed his own sense of justice proclaimed in this regard, contrary to H the mandamus, and determined the seniority which came to be challenged

S.S. BOLA v. B.D.SARDANA(KRAMASWAMY,J.) 595

by B.D. Sardana in the High Court. Pending the writ Petition in the High A Court, the Government came forward with Ordinance No. 6 of 1995 and the Act, amended the law with retrospective effect from 1st day of Novem- ber 1966 nullifying the mandamus issued by this Court directing redeter- mination of the seniority between direct recruits and promotees in Buildings and Roads Branch and Public Health Branch respectively; B making the mandamus ineffective by a legislative device. Some of the direct recruit officers filed writ petition in the High Court challenging the con- stitutionality of the Ordinance and the Act and the sequenfa•l seniority list prepared by the Government. When the matters had come up for final hearing and the pendency of those writ petitions and the effect of the Act on the seniority of the direct recruits and the judgment in these appeals C· was brought to our notice, wt passed an order transferring those writ . petitions to this Court to be heard along with these appeals. Thus, these transfer cases. The Division Branch by judgment dated August 27, 1994 disposed of writ petitions in the following terms : D "after adjustment of B.D. Sardana taking his year of allotment as 1977, as already discussed above, immediately after the aforesaid· 10 persons allocated to State of Haryana since their seniority is not under challenge declaration of cadre strength for subsequent years, may be retrospectively, will be valid as right of other direct recruits will not be involved as none has so far been appointed to the service. However, state is required to refix the seniority of B.D. Sardana, a direct recruit and other promotees to the extent of their quota fixed including 10 persons allocated to Haryana as on November 1, 1966 in the cadre. State Government is also required to pass fresh promotion orders of B.D. Sardana and other promotees to the post of Superintending Engineer and above as and when such posts became available keeping in view the seniority of the member to be redetermined."

G As stated earlier, the seniority list of the. Irrigation branch vis-a-vis M.L. Gupta was also directed to be reconsidered. All the promotee officers and the State Government filed appeals against B.D. Sardana as well as M.L. Gupta. Sardana filed appeal as against the part of the judgment giving 100 per cent quota to initially allotted promotees. H

596 SUPREME COURT REPORTS (1997] SUPP. 2 S.C.R.

A We directed the counsel to argue in the first instance on the con- stitutionality of the Act. Dr. B.D. Sardana appeared in person and, there- fore, we cannot expect him to argue on the constitutionality; but, on facts, he made out a good point which may be dealt with at a later stage. Shri D.D. Thakur, Shri Rajeev Dhawan, Shri Rohtagi, learned senior counsel and Shri Tulsi, learned senior counsel for the State, while making candid statement that the Statement of Objects and Reasons clearly manifests the blatant object, viz., to nullify the mandamus by a legislative judgment, requested this Court to eschew it from consideration and look at the operative parts of the provisions of the Act to find whether the legislature has made any attempt to overrule the judicial decisions by legislative judgment. The attempt of the counsel is as under :

This Court in Sehgal antj Chopra's cases pointed out that the normal continuous length of service did not find mention in the repealed Rules. D The promotees became members of the service only from the date of their substantive appointment to the cadre posts. Consequentially, their length of service as Executive Engineer, though performed in regular posts which were available, was cut off as fortuitous. The direct recruits were not available. The base pointed out in the judgment was knocked of its bottom by suitable amendments made under the Act repealing the statutory Rules. E Though the repealing provision again is not happily worded, the Court is required to supply omission "except as already done" to give effect to the provisions of the Act so that the senior promotee officers, continuously officiating from the date of the availability of the posts, though in excess of the quota, could be deemed to have been regularly appointed. Thereby, F they became seniors to direct recruits. Shri Rajeev Dhawan appearing for promotees in Irrigation Branch further contended that the repealed Rules relating to Irrigation Branch thus contained the proviso to Rule 5(2) of the repealed Rules which postulates that when the promotees were appointed and on completion of their probation, it was declared. They must be deemed to be the members of the service. Thereby, the absence of statutory G rules in respect of Buildings and Roads Branch and Public Health Branch, was removed by the proviso to Section 5(2) of the Act with which we deal with later. Therefore, there is a consistent rule brought in the Act that from the inception of their appointment by promotion, Class II officers would become members of the Class-I service. Right to promotion though is not H a vested right, a right to be considered for promotion is the rule. As and

S.S. BOLA v. B.D. SARDANA [K RAMASWAMY, J.] 597

when vacancy arises, every officer, be it promotee or direct recruit, is entitled to consideration for promotion in accordance with the rules then existing. The effect of retrospective operation would mean that the Act by fiction of law was in operation with effect from November 1, 1966, when the promotees were appointed and started officiating, though in excess of their quota. They were discharging the duties of the posts in accordance with the Rules and they became members of the service from the respective dates of promotion and thereby their continuous length of service as Executive Engineer and upwards is required to be counted for the purpose of seniority. Thereby, they became seniors to the direct recruits. By fiction -' of law, the Act has taken away their right to be considered for promotion which arises only in accordance with the Rules then existing. Rules of quota, due to non-availability of the direct recruits, stood broken down .and became inoperative. Therefore, the quota also cannot be implemented.

~hri Tulsi further contended that the State had not placed before this Court when Sehgal and Chopra's decisions were rendered, that the .Govern- D ment made its efforts to have the direct recruits appointed within their quota and notified from time to time to the Public Service Commission for recruitment but due to non-recruitment, the consequence would be that the promotees who performed the duties of the post must be given un- broken seniority from the respective dates of promotion. Normal con- tinuous length of service is the· rule. The Act gives effect to that rule by E retrospective effect. The mandamus as directed to be implemented within the prescribed quota is no longer the good law. The Act is a piece of legislative device within the power and competence of the legislature. No direction could be given to disobey the law and to determine seniority contrary to the Act. F

At this juncture, it is also relevant to point out that before ap- pearance of Shri Tulsi, Shri Altaf Ahmad, learned Additional Solicitor General had appeared on behalf of the State of Haryana. Shri Altaf Ahmad had taken a very candid stand and submitted that the direction issued by G this Court in Sehgal and Chopra's cases are clear, unambiguous and transparent. Officers, though understood with clarity the directions, had misapplied the law in their own perception with the wrong notion of equality. The seniority was not correctly prepared as per the mandamus. He stated that he would suitably advise the officers to redetermine the seniority in the light of the directions given by this Court. He further stated H

598 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A that the Legislature was not well advised to make the Act to overrule the mandamus by .legislative judgment, the Legislature, however, has the com- •-, petence to amend the law prospectively removing the defects pointed out by this Court. The Act will become operative prospectively giving 50 per cent quota each to the direct recruits and promotees. It remains to be B operative undi:r the Act. Any relaxation in defiance of the Act giving advantage to the promotees Would be permissible only if the State Govern- ment should give satisfactory explanation and that too in writing, that they made all sincere efforts to have the required number of direct recruits, recruited within the quota of 50% posts but that became impracticable since required number of direct recruits were not selected by the Public C Service Commission. On giving such satisfactory explanation only, the Government should determine the inter se seniority between direct recruits · and promotees in respect of the future vacancies only. He would advise the Government to act accordingly.

D We indeed appreciated the fair stand taken by Shri Altaf Ahmad on behalf of the State and gave direction to comply with the fixation of the inter se seniority between the direct recruits and the promotees accordingly. · But, ·unfortunately, instead of doing that exercise, the Government have changed the counsel and Shri Tulsi has taken over the threads from Shri Ahmad on behalf of the State. According to Shri Tulsi, so.long as the Act E remains on the statute, no one can be permitted to disobey the law.. According to the learned counsel, the State is empowered te enact the l~w suitably removing the defects in the law pointed out by the Court Which was lacking in the repealed Rules by enacting the faw with R!trospective effect. This is an accepted and recognised constit,µtional principle ap-. . F proved by this Court in catena of decisions. :Fherefore, the mandamus issued by this Court is no longer in operation 11nd tM directions ~n in Sehgal and Chopra's cases are no longer enforceable, The seniority shall be determined only in accordance with the provisions of the Act. .

Shri Rajeev Dhawan further contended that the motives cannot be attributed to the Legislature that it deliberately intended to overrule the decisions of the Court. The Act is neither a fraud on legislative power nor a colourable exercise of that power. Entry 41 of List II of the Seventh Schedule read with Article 309 of the Constitution empowers the Haryana State Legislature to make the Act. Therefore, the Legislature neither lacks competence to enact the law nor it be characterized as fraud on power or

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 599

colourable exercise of power. The Act, therefore, is now uniformly ap- A plicable to all the three Branches of the P.W.D. Department of the_ Haryana Engineering Service Class-I. The seniority list prepared in 1992 in compliance of mandamus exhausted itself. The seniority should be determined as per the law as· it exists under the Act. The direct recruits have no vested right to promotion but they have right to be considered for promotion as per the existing law, that is the Act. The learned counsel cited several decisions in support of the contentions. Shri.Rajeev Dhawan also has given elaborate written arguments in that behalf. Only Shri Raju Ramachandran has given brief written arguments on behalf of some of the direct recruits on the effect of Statement of Objects. Though opportunity was given to the counsel appearing for direct recruits to give their written arguments, many of them have not availed the same.

Three main principal questions arise for decision are : whether the Act is ultra vires the constitution? Whether the mandamus issued by this Court became ineffectual and unenforceable after corning into force of the D Act and whether the inter se seniority between the promotees and direct recruits has correctly been drawn in accordance with the mandamus issued by this Court? With a view to get at the bottom of these questions and to appreciate the respective contentions it is necessary to look into the relevant provisions in the Act. It would be redundant to reiterate once over the operative parts of the judgment in Sehgal and Chopra's cases and the directions issued thereunder. The ingenuity of the learned counsel for the promotees would be appreciated for their effort to salvage the promotee officers to get them seniority from the respective dates of promotion. But giving legitimacy to the actions in question on the equitable considerations would leave indelible inversion on the efficacy of judicial review. It would grant legitimacy to the legislature to overrule hereafter every inconvenient final judgment by legislative judgment with retrospective effect, rendering judicial review a supine mute witness to legislative overruling judicial decisions emasculating the vitality of judicial review which would generate feeling of disbelief in the efficacy of rule of law. As soon as a judgment rendered by constitutional court becomes final, it would become an easy passage for the executive to tap the door of the legislature and have the mle nisi or mandamus or directions issued by a constitutional court nul- lified by legislative judgment. In view of these starking effects, the true legal and fonstitutional perspectives requires correct perspective in that behalf. The inevitable consequences that would emerge from giving accep- H

600 SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.

A tance to the contentions of the counsel for promotees and the State of Haryana, driven us to give very deep, anxious and thoughtful consideration to these questions.

Article 309 of the Constitution in Part XIV of the Constitution titled "Service under the State and the Union", postulates that recruitment and B conditions of se1vice, the Union or of a State; subject to the provisions of the Constitution., the ·Acts of the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to Public Services and post in connection with the affairs of the Union or of the State. Under the proviso, the President for Union of India or the Governor C of the State respectively have been empowered to make rules regulating the recruitment and conditions of service of persons appointed to the respective services and post of the Union of India or the State until the provision in this behalf is made by or under an appropriate legislature under this Article. Any rules so made shall have effect subject to the provisions of such Act. Entry 41 of List II (State List) of the Seventh Schedule empowers the State legislature to make law concerning State Public Services; State Public Service Commission. Article 245( 1) empowers the legislature of the State to make any law for the whole or any part of the State. Such law shall be subject to the provisions of the Constitution and the law made by the Parliament for the whole or any part of the territory of India.

It would, thus, be clear that the legislature of the State of Haryana has, no doubt, been empowered to make law regulating recruitment and conditions of service of the persons serving the State of Haryana. The p Rules made by the Governor under the proviso to Article 309 shall hold that field until provision in that behalf is made by an Act of the legislature of the State of Haryana under that Article or Article 245(1) read with Entry 41 of List II of the Seventh Schedule. The statutory Rule made under the proviso shall have effect subject to the provisions of such an Act. Thus, the Act replacing the Ordinance and the repealed Rules shall have effect of regulating the recruitment and conditions of service of persons appointed to the Haryana Services of Engineers Class II, PWD (Buildings & Roads), (Public Health) and Irrigation Branch) respectively.

As stated earlier, the Act, has come into force on and with effect from 1st day of November, 1966 by deeming provision under Section 1(2)

S.S. BOLA V. B.D.SARDANA[KRAMASWAMY,J.) 601

of the Act. By operation of Section 3, it shall apply to the persons who are the members of the Service but shall not include persons who were ap- pointed before the 1st day of November, 1966. In other words, the persons appointed prior to 1st day of November, 1966 are not governed by the provisions of the Act and thereby they were not in law, the members of the service. There was no saving provision with regard to their continued membership for retiral service conditions under the repealed Rules except as mentioned in Section 25 and the proviso thereto. The allotees thereby, stood excluded from service. The repeal shall not affect the benefit accrued to the persons who have retired from service during the period commenc- ing from the 1st day of November, 1966 and ending with the date of the promulgation of the Ordinance. In other words, even the retired employees under the repealed Rules were never members of the service of the respective Branches except to the extent of the benefits they had already derived and enjoyed under the repealed Rules. This is the disastrous consequence that has been brought about in relation to the employees allotted on 1st November, 1966 and those retired either prior to the 1st day of November, 1966, or after passing of the Ordinance 6 of 1995 or from the date of prospective operation of the Act. They are men of non grata.

As regards the existing members and the service conditior.s of the respective Branches, Section 2 deals with the definitions. It defines in sub-section (1) of Section 2 "appointment to the service" to mean an appointment made to the post in service and includes an appointment, made according to the terms and provisions of the Act to an officiating vacancy of a post in service. "Assistant Executive Engineer" as defined in Service 2(2), means a member of the service in the junior scale of pay. Thereby, his entitlement to be a member of the service under the repealed F Rules has been continued under the Act. His continuance as a member of the service in the junior scale of pay from the date of his appointment remained undisturbed and uninterrupted.

Section 2(3) defines 'cadre post' to mean a permanent post in the service. Section 3(1) of the Act provides that the service shall comprise of G such number of posts of Assistant Executive Engineers, Executive En- .' gineers, Superintending Engineers, Chief Engineers and Engineer-in-Chief, as may be determined each year on the 1st day of January or as soon thereafter, as may be practicable according to the provisions of Appendix- A. The strength so determined shall remain in force till it is revised. It H

602 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A would, thus, be seen that the cadre posts are the permanent posts in the service determined each year on the Ist day of January or soon thereafter. The number of cadre posts in the service shall comprise of such number of the aforestated junior scale posts and senior scale posts. The first category consists of Assistant Executive Engineers and the second category consists of Executive Engineers, Superintending Engineers, Chief En- B gineers and Engineer in-Chief in the respective Branches.

Sub-section (4) of Section 2 defines 'Class-II Service' to mean the Haryana Service Engineers, Class II Public Work Department in the Buildings and Roads Branch. Public Health Branch or Irrigation Branch, C as the case may be. In other words, the Class- II service, namely, the officers in that category, remain as such officers until they are duly brought in and made members of service after being duly promoted and appointed to the service of the respective Branches in accordance with the provisions of the Act; until then they do not become members of the service of the D respective Branches of Class-I service. As seen earlier, under sub-section (1) of Section 2 appointment is made to the posts in the service of the cadre posts including an appointment made according to the terms and provisions of the Act to an officiating vacancy of a post in service. By mere officiation, he does not become a member of the Service. Therefore, before making an appointment, every year on 1st day of January or soon there- E after, the required number of cadre posts shall be determined and there- after any person appointed to the service, be it an Assistant Executive Engineer, in the junior scale of pay of the service under the Act or promotee officer from Class-II service defined under Section 2(4) shall be appointed to a cadre post in accordance with the provisions of the Act p which is a condition precedent. Until that is done, they do not become members of the service.

Section 2(8) defines 'direct appointment' to mean as appointment by open competition but does not include; (a) "appointment made by promo- G tion"; and (b) an appointment made "by transfer" of an officer already in the service of a State Government br of the Union. Explanation postulates that a Class II officer who enters the Service by open competitive selection shall for the purpose of this Act, be deemed to have entered the Service by direct appointment. In other words, the promotee officer otherwise seeks an appointment by direct recruitment by a competitive selection H through Public Service Commission from open market and appointed as

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.) 603

, such does become a member of the service. Since by operation of clause A (a) of sub-section (8) of Section 2, the promotee/transferee shall not be included as member of the service. An appointment made by promo- tion/tro.,sfer stood excluded from definition of direct appointment.

Sub-section (12) of Section 2 defines 'member of the service' to mean "an officer appointed substantively to a cadre post" and includes (a) in the case of a direct appointment an officer on probation, or such an officer, who having successfully completed his probation, awaits appointment to a cadre post; he becomes a member of the service from the date of the appointment, since he was appointed directly on probation to a cadre or to an ex-cadre post. A direct recruit on successful completion of probation but kept on' officiating basis in an ex-cadre post, awaits appointment to a cadre post; nevertheless; remains to be a member of the service. As ~tated earlier, he continues to be a member of the service in the junior scale of ' pay as Assistant Executive Engineer from the date of his appointment which remains unalterable. Under clause (b) of Section 2(12) an officer becomes a member of the service in case of an appointment by transfer who is on probation or who, having successfully completed his probation, awaits appointment to a cadre post, initially as he was appointed by transfer, becomes a member of the service from the date of his appoint- ment by transfer provided such an officer does not have a lien on a substantive post in any Government Department. In other words, it is settled service jurisprudence under the fundamental Rules that an officer cannot be appointed substantively to more than one post and he cannot also hold two posts simultaneously in a substantive capacity. Therefore, an officer appointed to a cadre post substantively as per the provisions of the Act on a transfer but who lost his lien in his parent department, he becomes a member of the service under the Act from the date of his appointment on successful completion and declaration of his probation, provided that he ceased to hold a lien on a substantive post in his parent Department.

Under clause (c) of sub-section (12) of Section 2, in case of an officer appointed by promotion, he becomes a member of the service on his successful completion of probation and awaits appointment to a cadre post. Explanation qualifies as under :

"It is necessary that a member of the Service shall at any given time be actually doing the work of a cadre post. He may be working in H

604 SUPREME COURT REPORTS [1997] SUPP.2S.C.R.

A an ex-cadre post for reasons of administrative convenience. Con- versely, an officer working in an officiating post may in fact perform the duties of a cadre post."

In other words, the explanation qualifies that a person, i.e., a direct B recruit Assistant Executive Engineer but was posted to an ex-cadre post, when he was discharging the duties of the post, though in an ex-cadre post for reasons of administrative convenience, nonetheless be becomes a mem- ber of the service by operation of clause (a) of Section 2(12). An officer officiating against an ex-cadre post may, in fact, perform the duties of the cadre post. In other words, though on successful completion of the proba- C tion and awaits appointment to a cadre post, nevertheless, prior to bis actual appointment to a cadre post, he is empowered to perform and officiate his duties of a cadre post, though he was appointed as a direct recruit and was posted to an ex-cadre post. Equally, the promotee Class II officer appointed on probation is also entitled to continue on an ex- cadre post or cadre post in an officiating capacity and the period of officiation D counts towards probation. In other words, the promotee officer does not come within the ambit of the explanation as a substantive capacity but authorised the promotee officer to perform the duties of a cadre post either as a probationer or in an officiating capacity which falls far short of substantive capacity. By operation of clause (c) of Section 2(12), a Class-II officer defined under Section 2(4) on his appointment by promotion as an E Executive Engineer, i.e., to the Class-I service as first appointment from feeder channel into Class-I service, he is empowered to officiate as an officer on probation on cadre/ex-cadre post. On successful completion of his probation, he•does not automatically become a member of the service until he is duly appointed to a cadre post. In other words, he is empowered, p by reason of the explanation to Section 2(12), to officiate on a cadre post, . but it does not amount that he was appointed to a cadre post in a substantive capacity. This demarcation of the nature of the membership of the service between direct recruit Assistant Executive Engineer on one hand and the officer appointed by transfer or promotee Class II officer -, who does not have such status but gets limited right to officiate in a G cadre/ex-cadre post as Executive Engineer, brings out the nature of their membership of the service.

S!-lb-section (15) of Section 2 defines 'service' to mean the Haryana Service of Engineers, Class I Public Works Department in the Buildings H and Roads Branch, Public Health Branch and Irrigation Branch, as the

S.S. BOLA V. B.D.SARDANA[KRAMASWAMY,J.] 605

case may be. An officer in Class I service becomes an officer of that service A only when he is appointed substantively to the cadre post, be it from junior scale of pay posts, namely, Assistant Executive Engineers, who is a member of the service in the junior scale of pay or an officer appointed by transfer or a promotee officer from Class II service to a cadre post as Executive Engineer. As seen earlier, the Assistant Executive Engineer who is a B member of the junior scale of pay service, appointed to an ex-cadre post and has completed the probation and awaits appointment to the cadre post, remains to be a member of the service and empowered to officiate in the cadre post as Executive Engineer though he has not become full member of the service while promotee officer does not get that right unless the C procedure under Section 8 is gone through and on selection as a probationer as per the merit list. Therefore, as soon as the Assistant Executive Engineer successfully completes the probation, unless he is discharged from service for unsatisfactory performance of the duties, he remains to be a member of the service as his date of appointment remains the same, i.e., from the date of his initial appointment as Assistant Execu- D tive Engineer and remains to be a member of the service and ·entitles to discharge the service on a cadre post and his seniority dates back to his date of initial appointment to the cadre/ex-cadre post as Assistant Execu- tive Engineer. Thereby, the direct recruit Executive Engineer or Assistant Executive Engineer direct recruit appointed directly to a substantive post and Assistant Executive Engineer direct recruit appointed to an ex cadre post are treated on par and their service conditions remain unalterable throughout. But, in the case of the officers belonging to Class-II service, as defined under Service 2(4), he does not become a member of the service as Class I officer until he is appointed to the cadre post substantively, nor he be empowered to officiate in the cadre post except as a probationer or in an officiating capacity and on successful completion, he awaits appoint- ment substantively as Executive Engineer to the cadre post if available within the quota. Until then, he does not become in a substantive capacity a member of the Haryana Service of Engineers, Class-I. One star effect which was not even anticipated or visualised in making the Act is that though he was made eligible to officiate as a probationer on a cadre post of Class-I service, namely, Executive Engineer, he does not automatically become a member of the service; nor does he cease to be a member of his Class-II service by reason of his promotion as Executive Engineer on probation/officiation. It is understandable for the reason that the promotee H

606 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A Executive Engineer from Class-II service holds his lien in his Class-II service in a substantive capacity as a permanent member of Class-II service. Until he is duly appointed in accordance with the provisions of the Act to a cadre post, he remains to be a member of Class-II service and awaits appointment substantively to Class-I service to a cadre post as Executive Engineer. It is obvious that he cannot cease to hold a lien on his substantive post in Class-II service for the reason that though he was promoted (technically called temporarily) on probation, if he would be found not to have satisfactorily completed the probation or the government would find him to have deteriorated in his performance of duties, he is liable to be reverted to his substantive part as Class-II officer unless otherwise dealt with like disciplinary action. Thereby, though they intended to make the promotee as a member of the service by the appropriate definitions many [ of which do not find place under the repealed Rules, the Act does not in reality advance their right to become a member of Haryana Service of Engineers Class-I, PWD in the respective branches in a substantive capacity. If one looks at correct legal perspective, putting up any other interpretation is impossible.

Section 3(2) does not advance any benefit to the promotees. It postulates as under :

E "Notwithstanding anything contained in sub-section (1) Govern- ment may appoint·a member of the se1vice to an ex-cadre post not included in the service in accordance with the provisions of this Act, provided such post has been sanctioned."

p In other words, by virtue of the non obstante clause employed in sub-section (3), it benefits only the direct recruits Assistant Executive Engineers appointed to the service of the junior scale of pay and posted to discharge the duties of an ex-cadre who would otherwise be excluded from the service made a member of the service in accordance with the provisions of the Act. By virtue of the explanation to sub- section (12) of G Section 2 and in the light of discussion hereinabove, by mere officiation even to a non-sanctioned cadre posts under sub-section (1) of Section 3 as an Executive Engineer by virtue of the 11011-obstante clause in sub-section (2) of Section 3, he does not become a member of the service; since the explanation intended to explain that it does not create a right but clarifies the purported ambiguity of the operation of the substantive provision. It

S.S. BOLA v. B.D. SARDANA [K. RAMASWAMY, J.] 607

appears to benefit the direct recruits totally and the promotees partially to officiate on cadre post/discharging the duties of a cadre post as the probationer promotee/officiator in an ex-cadre post in order to earn his said period of service to count it towards probation and legitimatised his service as -probationer/officiator in an ex-cadre/cadre post who would otherwise has no right to be posted. Thereby, by virtue of this enabling provision in the service in the respective branches in Buildings and Roads Branch, Public Health Branch and elbow entry was given who were other- wise totally excluded and the previous legal position held by the officers from Buildings and Roads, Public health Branches and brought on par with officers from Irrigation Branch who retained the officiating character. The rights of the promotees have not any further been advanced. C Section 4 deals with nationality and domicile of the candidates seeking appointment to the service, the details whereof are not necessary. Section 5 reads as under :

"5. (1) Recruitment to the service shall be made by Government D by any one or more of the following : • (a) by direct appointment;

(b) by transfer of an officer already in the Service of a Government, or of the Union; or E ( c) by promotion for Class-II Service.

(2) Recruitment to the Service shall be so regulated that the number of posts filled by promotion from Class-II Service shall not exceed 50% of the strength of Se1vice excluding the posts of Assis- F tant Executive Engineers;

Provided that if adequate number of Assistant Executive Engineers who are eligible and fit for promotion are not available, the posts in service even beyond 50% shall be filled up by promotion of G members of Class-II service or by transfer as may be decided by Government :

Provided further that in case of Irrigation Branch for the first eight years commencing from 1st day of November, 1966, for the word 50%, the word 75% be read. H

608 SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A (3) In the case of persons who were members of the Service on the commencement of this Act it shall be assumed that the member recruited by promotion from Class-II service is in accordance with the provisions of sub-section (2) of Section 5, and future recruit- ment ~hall be based on this assumption.

B (4) Aq direct appointments to the Service shall be made to the post of- Assistant Executive Engineers :

Provided that a direct appointment may, in exceptional circumstan- ces for reasons to be recorded in writing, be made to the post of Executive Engineer. c (5) An Officer promoted from Class II Service shall be appointed to the post of Executive Engineer.

(6) Appointment by transfer of an officer will normally be made to the rank of Executive Engineer. D (7) That in exceptional circumstances, for reasons to be recorded in writing, Government will have the power to alter the percentage specified in sub-section (2) of this section."

(Emphasis supplied) E Section 5 deals with recruitment to service. Sub-section (1) of Section 5 postulates that recruitment to the service shall be made by Government by any one or more of the following methods. i.e., (a) by direct appoint- ment; (b) by transfer; or (c) by promotion from Class-II service, defined p in Section 2(4). Sub-section 2 posits that recruitment to the service shall be so regulated that the number of posts filled by promotion from Class-II service shall not exceed 50% of the strength of se1vice excluding the posts of Assistant Executive Engineers. Thereby, recruitment, the ratios of 50% and regulation of the service between direct appointment of the Assistant Executive Engineers or direct recruitment as Executive Engineer put G together and appointment by promotion from Class II service/transferee as Executive Engineers of the strength of the Service consisting of Executive Engineers, Superintending Engineers, Chief Engineers, and Engineer-in- Chief in respective branches shall not exceed 50% ratio. In other words, it is mandatory that while recruiting promotees from Class II service/trans- H feree from other service, "the service shall be so regulated" that the number

S.S. BOLA v. B.D.SARDANA[K.RAMASW~Y,J.J 609

of posts filled by promotee officer from class II service/transferee "shall not A ~ exceed 50% of the strength of the service". The only exclusion from the 50% quota service in that behalf in computation of the 50% in junior scale posts occupied by junior scale pay officers, namely Assistant Executive Engineers.