RISDICTION Civil Appeals No 194 202 of 1986
Appeals by Certificates from the Judgment  Order dated 91285171285 of the Bombay High Court in Writ Petition Nos
620 of 1984 2653 of 1984 394 of 1985 456 of 1985 457 of 1985 183 of 1985 660 of 1984 126 of 1985 and 154 of 1985 VM Tarkunde MC Bhandare RN Sachthey SB Bhasme VA Bobde D Dave R Karanjawala Ms Meenakshi Arora Mrs Manik Karanjawala Jitender Sethy SV Tambwe kar MN Shroff AS Bhasme AM Khanwilkar PG Gok hale BR Aggarwala for the Appellants and JH Bhatia Brambhate Petitioners in person
908 KK Singhvi TVSN Chari Miss Manjula Gupta Ms Kitty Kumarmangalam Ms A Subhashini and VJ Francis for the Respondents
SS Patvardhan Intervener in person
The Judgment of the Court was delivered by SHARMA J
The perpetual rivalry for seniority in serv ice between the direct recruits and the promotees has once more engaged the attention of this Court for several days
The dispute which was brought to Court by SB Patwardhan in 1972 by a writ petition in the Bombay High Court and which was supposed to have been finally settled by the judgment of this Court reported in   has been kept alive by some direct recruits till this date
The events relevant for the case are spread over a long period and the issues joined by the parties have been described in the earlier judgments as involving ticklish and complicated questions of unrivalled complexity with no earlier case comparable
The position as now stands is that the field of controversy on legal questions has been considerably narrowed down by the earlier decisions of this Court but the relevant facts and the issues to be settled have multiplied by further events and subsequent rules framed under the Proviso to Article 309 of the Constitution
For appreciating the controversy which has to be resolved a brief survey of several sets of rules is neces sary
The parties are Engineers in the employment of the State of Maharashtra excepting the petitioners in WP Nos
3947 48 of 1983 who are in Gujarat service
Avoiding the details the position may be briefly stated by dividing the entire period into 4 sub periods and mentioning the scope of such of the provisions of the rules which have direct bear ing on the questions involved in the present cases
By a resolution of the year 1937 of the Government of Bombay two new Provincial Engineering Services described as the Bombay Engineering Service Class I consisting of posts of Chief Engineer Superintending Engineers Executive Engineers and Assistant Engineers Class I and the Bombay Engineering Service Class II having officers designated as Deputy Engineers were created
All the posts were permanent
In 1939 Rules were made for regulating the methods of recruit ment to the said Services which directed the recruitment to be made either by nomination from amongst the students of the College of Engineering Pune or by promotion of officers holding inferior posts
The next Rules to which the parties in the present cases have made reference were those made by 909 the resolution dated 2111
194 1 for determination of the seniority of the direct recruits and the promoted officers containing only two rules out of which r 1 admittedly is not relevant for the present purpose
Rule 2 said that in case of officers promoted to substantive vacancies the seniority would be determined with reference to the date of their promotion to the substantive vacancies
In 1960
detailed rules for recruitment to Class I and Class II Services were framed by a Government resolution dated 294
Learned counsel for the parties have referred to these Rules as the 1960 Rules and have made elaborate arguments with reference to some of the provisions
In place of nomi nation from the successful students of College of Engineer ing Pune as direct recruits these Rules prescribed for a competitive examination to be held by the Public Service Commission and introduced a quota system by fixing a ratio of appointments of direct recruits and promotees
The Rules also made reference to promotion as Executive Engineers on officiating basis and Temporary Deputy Engineers and offi ciating Deputy Engineers
By r 8 the posts of Deputy Engi neers were re organised and by sub rule iiiit was pro vided that the direct recruits in any year shall in a bunch be placed senior to promotees confirmed during that year
A review of these Rules was later undertaken by the Government and ultimately in partial supersession thereof a fresh set of rules described by the learned counsel in the present cases as the 1970 Rules were adopted by another Government resolution
In the meantime however a serious dispute in regard to the interpretation of one of the provisions of the 1960 Rules arose which was Settled by this Court in the case of PY Joshi and others vs The State of Maharashtra and Others The judgment in this case has been the subject matter of considerable discussion during the hearing of present cases
By r 5 of the 1970 Rules Class I and Class II Services were redefined and r 12a declared that the cadre of Deputy Engineers would consist of all the direct recruits the confirmed Deputy Engineers and the other officers who were officiating as Deputy Engineers on 304
During the period 1960 70 adequate number of direct recruits were not available and a large number of promo tees therefore had to be appointed to officiate as Deputy Engineers on continuous basis
These appointments were made after following the procedure applicable to regular promo tions including consultation with the Public Service Com mission
By r 12b the strength of the permanent Deputy Engineers was fixed at the total number of a the Deputy Engineers confirmed up to the date of commencement of the Rules b direct recruits to the posts of Deputy Engineers appointed till the 910 date of commencement of the Rules and c the Deputy Engi neers officiating on 3041960 and it was provided that no fresh appointments in future would be made to this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub rule in pro portions indicated
The learned counsel for the parties have referred to this cadre as the frozen cadre 
The question of seniority was dealt with in several rules out of which r 33 is important
It said that the seniority list in each cadre in Class I and Class II shall be prepared in two parts one for the confirmed officers and other for those who were not confirmed and that the confirmed officers would be treated as senior to the unconfirmed officers
Since the direct recruits were all appointed against the permanent posts they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer s posts
These Rules were amended in 1972 but there was no departure from the main scheme and the princi ple governing seniority
In pursuance of the 1970 Rules seniority lists were prepared leading to the filing of several cases which were ultimately disposed of by this Court in SB Patwardhan and others vs State of Maharashtra and others  Patwardhan the appellant in that case was promoted tempo rarily as Deputy Engineer in 1959 and was confirmed after the coming in force of the 1970 Rules
The respondents No 2 and 3 who were directly appointed as Deputy Engineers later were in view of the Rules shown as senior to Patwardhan
Patwardhan challenged the validity of r 8iii of the 1960 Rules and 33 of the 1970 Rules as being violative of arti cles 14 and 16 of the Constitution
The judgment in the case is treated as a landmark in the service jurisprudence and has covered extensive grounds dealing with several important aspects relevant in the case
The learned counsel for the parties have in the course of their arguments read and re read the judgment and made elaborate comments on its inter pretation and effect which we will discuss later
In the result Patwardhan succeeded and r 8iii of the 1960 Rules and r 33 of the 1970 Rules were struck down
In view of the judgment in Patwardhan s case it became necessary to prepare fresh seniority lists and since the re organised states of Bombay and Gujarat were formed on 111
1958 under the provisions of the State Re organisation Act 1956 it was considered expedient to make rules for preparing seniority lists of Deputy Engineers in respect of the period 1111956 to 3041960 that is the 911 date immediately after coming into force of the 1960 Rules
Rules were framed under Article 309 of the Constitution read with section 816 of the Bombay Re organisation Act 1960 and were called the Reorganised Bombay State Overseers and Deputy Engineers Seniority Lists Rules 1978 and have been referred to before us as the 1978 Rules
The seniority list of the Deputy Engineers as on 1111956 which had been prepared earlier was declared by these Rules as valid and final
This was consistent with the decision in Patwardhan s case
The further seniority lists were directed to be pre pared for the years 1957 1958 1959 and 1960 in accordance with the judgment in Patwardhan s case wherein the seniority of the promotee Deputy Engineers was made dependant on the continuous officiation subject to certain other conditions
Since the preparation of the seniority lists and reversion of the direct recruits whose promotion was ille gal in view of the decision in Patwardhan s case were being delayed one Bagayat Patil a promotee Deputy Engineer officiating as Executive Engineer filed a writ application being WP No 3483 of 1980 in the High Court for implemen tation of the judgment inter alia on the ground that r 6iii of the 1960 Rules relating to Class I being similar to the struck down r 8iii was also illegal
Another writ application being WP No 672 of 1981 was filed by the direct recruits challenging the validity of the 1978 Rules mainly on the ground that the Rules omitted to fix propor tionate quota for the direct recruits and the promotees
The two cases were disposed of by a common judgment upholding the validity of the 1978 Rules striking down r 6iii of the 1960 Rules and issuing appropriate directions for reversion of the illegally promoted direct recruits as also for preparation of seniority lists in accordance with the judgment in Patwardhan s case
Kulkarni one of the direct recruits in representative capacity challenged the judg ment before this Court in SLP No 8064 of 198 1 which was dismissed on 29101981
On the same date SLP No 9161 of 1981 filed by one Samtani was also rejected
A special leave petition by the State Government was also dismissed later
One of the direct recruits JH Bhatia who was admittedly represented by the petitioner in SLP No 8064 of 1981 filed an application under Article 32 of the Con stitution before this Court on 12
1982 that is after the dismissal of SLP No 8064 of 1981 which has been regis tered as WP No 1327 of 1982 and is being disposed of by the present judgment
In 1981 further rules called Re organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules 912 198 1 described by the parties as the 198 1 Rules were flamed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 1111956 to 3041960
With respect to the prepara tion of the seniority list of the Executive Engineers r 33a read with Explanation to r 34 fixed quota with retrospective effect between the direct recruits and the promotees and these rules were successfully challenged in the High Court in WP No 362 of 1982
The judgment in the case striking down the above rules has not been directly questioned in this Court
The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying down the principle for fixing the sen iority for the period dated 151960 to 20121970 and are called the Maharashtra Service of Engineers Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period Rules 1982 hereinafter referred to as the 1982 Rules
The Preamble states that they were framed in view of the decision of the Supreme Court in SB Pat wardhan vs State of Maharashtra and of Bombay High Court in WP No 3483 of 1980
On their face they are consistent with the aforesaid judgments but by including two rules therein Rules 4 and 9 deleted later fixing rigid quota with retrospective effect attempt was made to neutralise the decision and rob the promotees the benefit of their continuous officiation
Rule 9 omitting the Explanation which is not relevant for the present purpose read as follows 9 Allocation of vacancies in cadre of Deputy Engineers for direct recruits and promotees
The number of vacancies in the cadre of Deputy Engineers in every year during the specified period and in the fractional year shall be deemed to be equal to the number of vacancies actually filled in that year or as the case may be fractional year and the first three fourths of such vacancies in each year or in the fractional year shall be deemed to be allocated for persons recruited directly as Deputy Engineers and the subsequent remaining vacancies in that year or in the fractional year shall be deemed to be allocated for filling by promotions from amongst Overseers who may be eligible for such promo tions in accordance with rules or orders made by Government from time to time during the specified period
 Rule 4 dealing with the promotion of Assistant Engineers and Deputy 913 Engineers in vacancies in the cadre of Executive Engineers was in similar language
Section 2h defined fortuitously appointed in the following terms fortuitously appointed means appointed in any vacancy which according to rule 4 or 9 is not allocated for the class of officers to which the person appointed in that vacancy belongs   These rules were challenged in Writ Petitions No 955 and 956 of 1983 filed respectively by promotee Deputy Engineers Dafle and Kamtkar and by promoted Executive Engineers Lele and Panse hereinafter mentioned as Dafle Lele case before the Bombay High Court and were struck down as illegal
The High Court further ordered the State to carry out the direc tions given in Bagayat Patil s case WP No 3483 of 1980
None of the Engineers came to this Court against this judgment except the State Government in SLP Nos
16614 15 of 1983 which also have been heard by us
However the prayer for stay was rejected
The result is that the senior ity has to be reckoned on the basis of continuous officia tion
By an amendment in 1984 the rr 4 and 9 were formally deleted
For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing on 21121970 separate rules were framed under Article 309 of the Constitution and are called the Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engi neers Class II Regulation of Seniority and Preparation and Revision of Seniority Lists Rules 1983 and will be re ferred to hereafter as the 1983 Rules
The validity of these Rules has been challenged in WP No 1169 of 1986 filed under Article 32 in this Court
As stated earlier JH Bhatia filed Writ Petition No 1327 of 1982 in person and obtained an ex parte rule
Another application under article 32 of the Constitution being WP No 5 187 of 1983 was filed by Srikant Bharat Sohoni a direct recruit to Class II who besides challeng ing the 1978 Rules has also attacked the validity of the 1982 Rules although he did not file an appeal against the judgment of the High Court on this point
According to the learned counsel for the promotee respondents he was not concerned with the 1978 Rules at all but he mentioned the same in his application for the sole purpose of obtaining a rule on the ground of admission of Bhatia s writ petition
914 Encouraged by these two cases several other writ petitions were also filed and have been heard along with the Civil Appeals
Although the claim of the promotees to reckon the seniority according to the continuous officiation was ac cepted by this Court in Patwardhan s case in 1977 the State Government continued denying them the fruits of the litiga tion
The High Court on a complaint made by Bagayat Patil took note of the delay and issued directions for implementa tion of the judgment
Still nothing was done till 1984 and an application for starting proceedings in contempt was made before the High Court
In the meantime a fresh writ petition being WP No 660 of 1984 was filed by the direct recruits before the Aurangabad Bench of the Bombay High Court and stay was obtained
Thereafter a number of similar applica tions were filed one after another either before the Nagpur Bench or the Aurangabad Bench of the Bombay High Court
When the promotees pointed out before this Court the game of the direct recruits a direction was issued for hearing of all the cases at Bombay
Accordingly aH the 15 writ applications were transferred and heard together at Bombay
The High Court rejected the case of the direct recruits and dismissed the writ petitions
The petitioners in 9 of them have chal lenged the judgment in Civil Appeals No 194 202 of 1986
The main argument on behalf of the direct recruits has been addressed by Mr VM Tarkunde who represents the appellants in the Civil Appeals and the writ petitioners in WP No 1169 of 1986
The learned advocates in some of the other writ cases and two of the writ petitioners in person made supplementary arguments
It has strenuously been con tended that the 1978 Rules 1982 Rules 1983 Rules and the 1984 Rules are invalid and must be struck down
The judgment in Dafle Lele case has also been challenged
The cases were earlier heard for sometime by a Division Bench when the Bench referred the matter to be dealt with by a larger Bench for examining the correctness of the decision in Patward han s case
When the cases were taken up for hearing before us it was faintly suggested that the principle laid down in Patwardhan s case was unsound and fit to be over ruled but no attempt was made to substantiate the plea
We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi that the period of continuous officiation by a government servant after his appointment by following the rules applicable for substantive appointments has to be taken into account 915 for determining his seniority and seniority cannot be determined on the sole test of confirmation for as was pointed out confirmation is one of the inglorious uncer tainties of government service depending neither on effi ciency of the incumbant nor on the availability of substan tive vacancies
The principle for deciding inter se seniori ty has to conform to the principles of equality spelt out by articles 14 and 16
If an appointment is made by way of stop gap arrangement without considering the claims of all the eligible available persons and without following the rules of appointment the experience on such appointment cannot be equated with the experience of a regular appoint ee because of the qualitative difference in the appoint ment
To equate the two would be to treat two unequals as equal which would violate the equality clause
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments there is no reason to exclude the officiating service for purpose of seniority
Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case
To hold otherwise will be discriminatory and arbitrary
This principle has been followed in innumerable cases and has been further elaborated by this Court in several judgments including those in Baleshwar Dass vs State of UP and others 1981 1 SCR 449 and Delhi Water Supply and Sewage Disposal Committee and others vs RK Kashyap and others  1989 Supp 1 SCC 194 with which we are in agree ment
In Narender Chadha and others vs Union of India and others    the officers were promoted al though without following the procedure prescribed under the rules but they continuously worked for long periods of nearly 15 20 years on the posts without being reverted
The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16
There is considerable force in this view also
We there fore confirm the principle of counting towards seniority the period of continuous officiation following an appoint ment made in accordance with the rules prescribed for regu lar substantive appointments in the service
Mr Tarkunde in the course of his argument made it clear that he was not questioning the ratio in Patwardhan s case but was challenging the judgment therein as erroneous on the ground that the posts of temporary Deputy Engineers held by the promotees were not in the cadre of the Deputy Engineers which included only permanent posts and this position was not correctly appreciated there
The argu 916 ment is that since the permanent posts held by the direct recruits and the temporary posts which the promotees were allowed to officiate did not form a single cadre there could not arise any question of interse seniority amongst them
The finding to the contrary in Patwardhan s case is said to have been inconnectly arrived at mainly due to the failure on the part of the State Government to place all the relevant materials before the Court
The stand of the appel lants is that having regard to all the facts and circum stances leading to the present litigation the direct re cruits cannot be held to be bound either by a rule of res judicata or otherwise and they are free to challenge the Patwardhan s decision as incorrect
It is claimed that if the relevant position is correctly appreciated there is no escape but to hold that the 1960 Rules excepting r 8iii and the 1970 Rules except r 33 were perfectly legal and the declaration about their invalidity was erroneous
The learned counsel contended that since the fresh Rules
which are now impugned were flamed as a result of the said enone ous judgment they have to be struck down
The observations in the judgment in PY Joshi s case were characterised as obiter dicta which cannot be held to be binding on this Court at a Subsequent stage and the question whether the direct recruits and promotees were in the same cadre or held posts in two separate and distinct cadres must be answered in accordance with the decision in State of Gujarat vs
CG Desai and others 1974 2 SCR 255 in favour of the appel lants
Developing his argument Mr Tarkunde said that since the 1960 Rules and the 1970 Rules were perfectly valid they clothed the direct recruits with right of seniority over the promotees which could not be retrospectively taken away in view of their fundamental rights under articles 14 and 16 of the Constitution
He further urged that the quota rule applicable to the Service under the 1960 Rules was binding on all concerned and the High Court has in the Dafle Lele case erred in quashing rr 4 and 9 of the 1982 Rules
The plea of the respondents that the quota rule was not strictl ly enforceable on account of the words as far as practica ble in r 1b of the 1960 Rules or that it was relaxed Or given up later has been denied and it is said that the appointments of the promotees in excess of the quota there fore could not be treated as valid until the date when the posts became available in their share and consequently the earlier period cannot be considered for the question of theft seniority
The main thrust of Mr Tarkunde s argument is that the permanent Deputy Engineers and the officiating Deputy Engineers were in two cadres and as the officiating Deputy Engineers could not be treated to be included in the perma nent cadre having only perma 917 nent posts they were not entitled to compete with the direct recruits in the matter of seniority
It is true that initially the cadre consisted of only permanent posts
The promotees however claim that the additional posts were subsequently added to the cadre and no new cadre was formed
Great emphasis was laid by Mr Tarkunde on the language of certain rules on the basis of which it was urged that the cadre of the permanent Engineers was higher in rank than that of the officiating Engineers who had to be fur ther promoted for becoming members of the said cadre
Rule 8i of the 1960 Rules which was relied on for this pur pose reads as follows 8i The Sub Divisional posts in the Department are at present manned by direct recruits to Bombay Service of Engineers Class II cadre Deputy Engineers confirmed from subordinate Service of Engineers the temporary Deputy Engineers recruited by the Bombay Public Service Commission officiating Deputy Engineers and similar other categories
These various categories are being compiled into two fists only viz Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and a list of Officiating Deputy Engineers
The future recruitments to Bombay Service of Engineers Class II cadre shall be made by nomination of candidates recruited direct by competitive examination held by the Commission and by promotions from the list of offi ciating Deputy Engineers
The number of such promotions shall be about one third the number of direct recruits appointed in that year
 argument is that if the officiating Deputy Engineers could be promoted to Bombay Service of Engineers Class II cadre how could they be treated as part of the said cadre earlier
It was pointed out that the second sentence of the above rule in express terms directs two lists to be pre pared one of the permanent Deputy Engineers and the other of officiating Deputy Engineers
Admittedly the appointment of all the direct recruits was made as against the permanent vacant posts and on their successfully completing the proba tionary period they were confirmed against those posts while the promotees were posted in the temporary posts as offici ating Deputy Engineers
Rule 80 according to the appel lants therefore makes a clear distinction between the two groups which could not be lumped together
Reliance was also placed on the language of rr
5 6 12a 30 and 33 of the 1970 918 Rules
We are not in a position to agree with the learned counsel that the rules indicate that the officiating posts were not included in the cadre of the Deputy Engineers
It is true that the use of word promotions in r 8i of the 1960 Rules is not quite appropriate but that by itself cannot lead to the conclusion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers
As was stated with reference to the expressions like substantive capacity  service  and cadre  in Ba leshwar Dass vs State of UP and others 1981 1 SCR 449 at page 463 C E we cannot attribute fixed connotation to the expression promotion  without reference to the context
The expression there has been used in the sense of confir mation
The language used in several other rules is incon sistent with two cadre theory and by way of illustration r 12a may be considered
Rules 5 and 24 of the 1970 Rules mention only 4 cadres in Class II namely those of Sub Divisional Officers Sub Divisional Engineers Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engineers
Rule 12a of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers although it leaves behind the other officiating Deputy Engineers who started officiating later than 3041960
Rule 13 speaks of officers officiating in the earthwhile cadre of Deputy Engineers and r 27 of officiating promotions which are inconsistent with two cadre theory
In r 33 of the 1970 Rules also two lists were directed to be prepared not cadrewise but in each cadre clear indicating that the lists were different from cadres
In r 8i of the 1960 Rules also the different groups were not described as dif ferent cadres
They were referred to as categories and what the re organisation suggested was with reference to lists to be prepared
It will not therefore be right to equate the lists with cadres
It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all their relevant provi sions are considered they unmistakably lead to the said conclusion
Excepting the use of the word promotions in r 8i of the 1960 Rules no other provision appears to help the appellants
This question was considered in Patwardhan s case at considerable length and a categorical finding against the direct recruits was arrived at which has been followed for the last more than a decade in many cases arising between members of Maharashtra and Gujarat Engineering Services
The question is of vital importance affecting a very large number of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan s case
In such a situation it is not expedient to depart from the decision 919 lightly
It is highly desirable that a decision which concerns a large number of government servants in a particu lar Service and which has been given after careful consider ation of the rival contentions is respected rather than scrutinised for finding out any possible error
It is not in the interest of the Service to unsettle a settled position every now and then
Besides the learned counsel for the parties have placed the rival arguments on the issue in great detail with reference to every available material and in our opinion the finding was correctly arrived at
We also agree that the interpretation given in PY Joshi and Others vs The State of Maharashtra and Others  by a Bench of 5 Judges on r 8 of the 1960 Rules which answers one of the main grounds of the direct recruits in support of two cadre theory must be respected
Mr Tarkunde has at tempted to distinguish PY Joshi s case and has challenged the correctness of the observations at page 795 of the judgment in Patwardhan s case
We do not agree with the learned counsel
The dispute in that case was in respect of promotion of promotee Deputy Engineers to posts of officiat ing Executive Engineers
Rule 7ii of the 1960 Rules pre scribed as a necessary condition for promotion the minimum service of seven years as Deputy Engineer
The respondent in PY Joshi s case were elgible provided their experience as officiating Deputy Engineers was allowed to be counted
The petitioners in that case were direct recruits to the posts of Deputy Engineers and they challenged the promotion of the respondents on the ground that they had not completed the seven years  period after their confirmation as Deputy Engineers and the period for which they had been officiating as such was not available to them for the purpose
Their contention was that under the rules in force the respond ents who were in substantive rank of Overseers were only officiating Deputy Engineers and that as they did not belong to the cadre of Deputy Engineers they were not entitled to promotion inasmuch as they had to put in after confirmation as Deputy Engineers 7 years of actual service before being eligible for promotion as officiating Executive Engineers
The arguments were addressed with reference to several rules including r 8 and this Court while rejecting the stand of the direct recruits observed thus In our view it is the list of such persons that is referred to in cl
ii of rule 8 and not that there should be a list of persons actually officiating as Engineers for further promotion to the same post which will have little meaning for there cannot be a promotion of a person in the same cadre of service who is already promoted whether as an officiating or temporary or permanent incumbant
If cl
i of r 8 920 provides that Class 11 cadre shall be recruited by competi tive examination the promotees also are promoted from the list of persons considered fit to hold sub divisional charge ie post of Deputy Engineers
If in the case of direct recruits the appointment is without reference to confirmation it cannot be any different in the case of promotees
 This interpretation of r 8 is binding as a precedent
It is Urged by Mr Tarkunde that the ratio of the Division Bench judgment in State of Gujarat vs
CG Desai and Others 1974 2 SCR 255 supports his argument and should be followed
We do not think so
The controversy there also related to the construction of r 7ii of the 1960 Rules requiring the minimum service of 7 years for a Class II officer to be promoted as officiating Executive Engineer
The respondent No 1 CG Desai who was not considered eligible for promo tion was earlier officiating as Deputy Engineer from May 1955 to December 1959
Thereafter he successfully competed at an examination for direct recruitment to Class II Service held by the Public Service Commission and was appointed as Permanent Deputy Engineer
For the purpose of his promotion to the higher cadre he relied on his officiating service before he was selected as a direct recruit which was denied by the Government
In a writ case his claim was accepted as legitimate by the High Court
This decision was challenged before this Court and it was held by the judgment in the reported case that the respondent was not entitled to count his experience as officiating Deputy Engineer before his selection as a direct entrant in the Service
It was inter alia observed that if a person like the respondent leaves his position in the long queue of officiating Deputy Engi neers with a view to avoid the tortuous wait for promotion and takes a short cut he gives up once for all the advan tages and disadvantages of continuing as an officiating Deputy Engineer and accepts all the handicaps and benefits which attached to the group of direct recruits
He cannot after his direct recruitment claim the benefit of his pre selection service and thus have the best of both the worlds
 In this set up and for the purpose of construing r 7 and considering the necessary qualification for promotion as an Executive Engineer it was observed that the direct recruits and the promotees in Class II constituted two groups or classes and it was pointed out that unless the pre selection service as officiating Deputy Engineer of direct recruits was excluded for reckoning the 7 years experience it would create two classes amongst the same group of direct recruits and result in discrimination against those direct recruits who had no such pre selection service to their credit
The 921 decision has to be understood in this background and it cannot be of any help to the present appellants
Even on an independent consideration of the provi sions of the Rules the relevant materials and the arguments addressed on behalf of the parties we are of the view that the temporary posts of Deputy Engineers against which promo tees officiated did not form a separate cadre and were additions to the main cadre
These temporary posts were created in pursuance of several resolutions of the State Government and an examination of their language is helpful in resolving the controversy
The resolution No ENH 1062 C dated 8th November 1962 Ext A  at page 277 of Vol
V of the paper book after referring to the sanction accorded by the Government for creation of the temporary posts stated The posts of Executive Engineer and Deputy Engineer should be treated as temporary additions to their respective cadres   emphasis added Similarly the Resolution No CDS 1170 F dated the 3rd of November 1970 dealing with the temporary posts created in the departments of Irrigation and Power stated as follows pages 283 286 at page 284 paragraph 3 of Vol
V of the paper book The temporary posts in each Department be treated as temporary additions to the respective cadres emphasis added Mr KK Singhvi the learned counsel for the promotees relied upon these resolutions and several other documents in support of the finding of this Court in PY Joshi s case and Patwardhan s case comprising the single cadre theory and contended that these and other materials were available to the Court in Patwardhan s case
Mr Tarkunde on the other hand argued that some fresh materials have come to light since after the judgment in Patwardhan s case which had not been made available by the State earlier
There is serious controversy as to the interpretation of these documents alleged to have been later discovered by the direct recruits and in our opinion they do not furnish any evidence of substantial nature to outweigh the materials produced by the State in Patwardhan s case including the aforementioned resolutions
In the circumstances we do not consider it necessary to discuss this question any further and close the issue by holding that the 922 officiating Deputy Engineers were in the same cadre with the other Deputy Engineers in permanent posts
It has been next contended that even if the decision in Patwardhan s case be held to be correct and it is as sumed that the posts of officiating Deputy Engineers are also included in the cadre of permanent Deputy Engineers rr 4 and 9 of the 1982 Rules could not have been challenged as illegal and the decision of the Bombay High Court in Dafle Lele case striking down these rules is erroneous and fit to be over ruled
It was pointed out that the 1984 Rules flamed as a result of the said decision expressly stated that they were subject to the result in the Special Leave Petitions No 16614 15 of 1983 filed by the State of Maha rashtra against the said decision and if the judgment in Dafle Lele case is set aside then the 1984 Rules will auto matically disappear
Great emphasis was laid by Mr Tarkunde on the provision in the 1960 Rules fixing the ratio of the direct recruits and the promotees in the Deputy Engineers cadre and it was urged that the question of seniority must be settled with reference to the time when posts became available to the promotees in accordance with the said quota rule
Merely for the reason that the promotees were allowed to officiate on the temporary posts in excess of their quota they cannot be permitted to steal a march over the genuine claimants to the posts namely the subsequently appointed direct recruits
Repelling the stand of the respondents it was argued that the quota rule never collapsed and remained operative and was confirmed by the decision in Patwardhan s case
About the rule applying at the stage of appointment and not at the stage of confirmation as was held in the said judgment it was suggested that the observations cannot be legitimately interpreted as setting the officiating Deputy Engineers free of the principle of quota
It meant according to the learned counsel that if an officer was promoted within his quota the rule would be applicable with reference to the date of promotion and not the date of confirmation but where his promotion was in excess of the permissible quota his seniority would be reckoned with reference to the date when a vacancy became available for him and not on the basis of his continuous officiation
He will be entitled to count his officiating experience only on a vacancy being available to him in accordance with the quota rule
Reliance was placed on SG Jaisinghani vs Union of India and Others   AK Subraman and Others vs Union of India and Others 1975 2 SCR 979 VB Badami etc
vs State of Mysore and Others 15 and Paramjit Singh Sandhu and Others vs Ram Rakha and Oth ers  Alternatively it was contended that assuming that the quota rule had collapsed as a 923 result of non availability of direct recruits the State Government was under a duty to change the ratio by allotting a larger share to the promotees which was belatedly done in 1970
So long the rule was not amended the same had to be respected
On the strength of observations in Bishan Sarup Gupta vs Union of India and others 1975 Supp
SCR 491 it was urged that collapse of quota rule does not make seniori ty dependant on continuous officiation
It calls upon the Government to frame better rules to meet the requirements of the situation
The quota rule was for the first time introduced by the 1960 Rules
As already mentioned these Rules were introduced through executive instructions issued by the State Government
The statutory rules which were holding the field earlier did not fix any ratio between the direct recruits and the promotees
Rule 1 of the 1960 Rules which is relevant in this context is quoted below 1
Appointment to the Bombay Service of Engineers Class I and Class II shall be made either a by nomination after a competitive examination held by the Bombay Public Service Commission hereafter called the Commission in accordance with the rules appended or b by promotion from amongst the members of the lower cadres concerned
Provided that the ratio of the appointment by nomination and by promotion shall as far as practicable be 7525
 It will be noticed that the ratio of 31 was fixed for the purpose of appointment and not for the strength in the Service as was suggested on behalf of the appellants
The other important feature was that the Proviso fixing the ratio far from being imperative permitted the State Gov ernment to exercise its discretion according to the demand of the exigencies by using the expression as far as prac ticable
The case of the appellants is that the said ex pression was inserted in the Proviso with the object of avoiding fractions in arithmetical calculations of number of posts available to the two groups and for no other purpose
We do not see any reason to so restrict the scope and mean ing of the expression as far as practicable
A similar expression in identical terms used in certain other rules came up for consideration in NK Chauhan and Others vs State of Gujarat and 924 Others   and it was held that if it became nonfeasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so it was free to fill the posts by promotion of suitable hands if the filling up of the vacancies was administratively necessary and could not wait
Similar is the position here and the r 1 of the 1960 Rules must be held to be realistic and flexible true to life rather than abstractly absolute
It was strenuously contended by Mr Tarkunde and was reiterated by the other learned counsel that the State Government erred in promoting the officers from the lower cadre far in excess of their legitimate share in the Service and the promotees cannot be allowed to take advantage of this wrong perpetuated from year to year
Reply of the respondents is that direct recruits suitable for appointment were not available and if appointments had been defined on that account the fast developing departments entrusted with quick improvement in several fields would have been rendered crippled leading to grave injury to the industrial and other growths in the State
The public inter est demanded that the improvement work did not suffer on account of non availability of suitable candidates for nomination when competent Engineers fit to shoulder the responsibility were available in abundant number in the departments themselves
It will bear repetition that the promotees were not appointed in a casual manner the Rules applicable for substantive appointments were meticulously followed and eligible officers were subjected to all the tests including scrutiny by the Public Service Commission before they were promoted
The reason for not adhering to the quota rule was admittedly the non availability of the direct recruits and was specifically mentioned in the Gov ernment s resolution of 1970 as a reason for replacing the old rules by new ones
Mr Singhvi the learned counsel for the respondents argued that having regard to the relevant facts and circumstances there is no escape from the conclu sion that the quota rule spelt out by the executive instruc tions in the 1960 Rules had in fact collapsed and that this fact can be recognised even without issuing a formal amend ing instruction
It is permissible to draw an inference to that effect by the steps taken by the State Government repeatedly and for a considerable period in disregard of such a rule and specially so where the quota is not fixed in imperative terms
Reliance was placed on the observations at page 209 of the judgment of this Court in PC Sethi and Others vs Union of India and Others as reported in  The quota of direct recruits in that case had not been enforced perhaps for good reasons as noted above the policy of the Government being different
In this back ground it was stated that administrative instructions if not carried into effect for obvious and good reasons cannot 925 confer a right upon entrants on later recruitment to enforce the same
The learned counsel appears to be right
It has however been rightly suggested on behalf of the appellants that when recruitment is from more than one source there is no inherent invalidity in introducing quota system but as was observed in Subraman s case supra the unreasonable implementation of such a rule may attract the frown of the equality clause
Further if a rule fixing the ratio for recruitment from different sources is framed it is meant to be respected and not violated at the whims of the authority
It ought to be strictly followed and not arbitrarily ignored
This of course may not prevent the Government from making slight deviations to meet the exigen cies
If it is discovered that the rule has been rendered impracticable it should be promptly substituted by an appropraite rule according to the situation
The question however is as to what is the conclusion if the quota rule is not followed at all continuously for a number of years after it becomes impossible to adhere to the same
Admitted ly in the present cases direct recruits were not available in adequate number for appointment and appropriate candi dates in the subordinate rank capable of efficiently dis charging the duties of Deputy Engineers were waiting in their queue
The development work of the State peremptorily required experienced and efficient hands
In the situation the State Government took a decision to fill up the vacan cies by promotion in excess of the quota but only after subjecting the officers to the test prescribed by the rules
All the eligible candidates were considered and the opinion of the Public Service Commission was obtained
The appoint ments were not limited to a particular period and as a matter of fact continued till 1970 when the fresh rules were introduced
The stand of the appellants is that whenever ap pointments are made in violation of a quota rule the ap pointees will have to go down below the new entrants join ing the Service in accordance with their quota
The cases relied upon by Mr Tarkunde do discuss the general princi ples about the enforceability of quota rule and the effect of its violation but do not profess to lay down the univer sal rule applicable
to every case irrespective of the other relevant circumstances arising therein
On the other hand the decisions cited by Mr Singhvi deal with circumstances similar to those in the present cases and are illustrative of situations where the general rule has to yield to just exceptions
Indeed Mr Tarkunde himself attempted to dis tinguish them on the ground that the government had relaxed the quota rule in those cases
The fallacy in the argument however is that the present cases are also of the same category
926 23
Mr Tarkunde is fight that the rules fixing the quota of the appointees from two sources are meant to be followed
But if it becomes impractical to act upon it it is no use insisting that the authorities must continue to give effect to it
There is no sense in asking the perform ance of something which has become impossible
Of course the Government before departing from the rule must make every effort to respect it and only when it ceases to be feasible to enforce it that it has to be ignored
Mr Tarkunde is fight when he says that in such a situation the rule should be appropriately amended so that the scope for unnecessary controversy is eliminated
But merely for the reason that this step is not taken promptly the quota rule the performance of which has been rendered impossible cannot be treated to continue as operative and binding
The unavoidable situation brings about its natural demise and there is no meaning in pretending that it is still vibrant with life
In such a situation if appointments from one source are made in excess of the quota but in a regular manner and after following the prescribed procedure there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subse quently
The later appointees may have been young students still prosecuting their studies when the appointments from the other source take place and it is claimed on behalf of the respondents that this is the position with respect to many of the direct recruits in the present case and it will be highly inequitable and arbitrary to treat them as senior
Further in cases where the rules themselves permit the Government to relax the provisions fixing the ratio the position for the appointees is still better and a mere deviation therefrom would raise a presumption in favour of the exercise of the power of relaxation
There would be still a third consideration relevant in this context name ly what is the conclusion to be drawn from deliberate continuous refusal to follow an executive instruction fixing the quota
The inference would be that the executive in struction has ceased to remain operative
In all these cases the matter would however be subject to the scrutiny of the Court on the ground of mala fide exercise of power
All the three circumstances mentioned above which are capa ble of neutralising the rigours of the quota rule are present h the cases before us and the principle of senior ity being dependant on continuous officiation cannot be held to have been defeated by reason of the ratio fixed by the 1960 Rules
The decisions relied upon by Mr Singhvi deal with similar situation and are consistent with our opinion
927 25
The decisions relied upon by Mr Tarkunde support his argument in general terms but are distinguishable on account of the special features in the present cases
Mr Singhvi contended that many important observations in those cases also support the respondents on several relevant aspects as for example the statement at pages 990H991B in the judgment in AK Subrman s case as reported in to the following effect It is submitted by the respondents that one third quota cannot be filled unless the two third quota was ex hausted
This in our view will introduce sterility in the quota rule so far as the promotees are concerned
Their hopes and aspirations cannot be related to the availability or non availability of the direct recruits to fill the two third quota
Each quota will have to be worked independently on its own force
The word rest in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierarchy of the Service
Relying on the observations at page 505H of the judgment in Gupta s case reported in 1975 Supp
SCR 491 Mr Tarkunde strenuously urged that even on the assumption that the quota rule in the present cases had in fact broken down it was imperative on the part of the Government to have framed fresh workable rules before promoting the respondents
The learned counsel for the promotees distin guished the decision and to our mind correctly on the ground that there the manner and terms of the appointments made in breach of the quota rule were widely different from those in the present cases
The special facts as they appear from the other judgment in the Gupta s case reported in   were stated at page 113E F thus It is necessary to remember however in this connection that all these officers had been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had not been determined
It was thereby implied that orders about seniority could only be passed after the department was in a position to take a decision with regard to the inter se seniority be tween the promotees and the direct recruits
That being the situation of all these officers they could hardly contend that the dates of appointments will not be altered for the purposes of determining seniority
 928 The decision was later considered in PS Mahal and others vs Union of India and Others   and the analysis given at pages 877E 880 clearly indicates that the decision has to be understood in the background of the facts therein and cannot have a universal application irrespective of the situation
This judgment as well as the decision in Badami s case supra were rightly distinguished in Patward han s case at page 797
It has also been alternatively argued on behalf of the appellants that by the statement in the judgment in Patwardhan s case that the quota rule applied at the stage of appointment and not at the stage of confirmation this Court did not mean to say that those who were promoted in an officiating capacity were not subject to the quota rule
The contention is that what was meant to be conveyed by the aforesaid observations was that if an officer had been promoted within his quota then it would be the date of his promotion and not the date of confirmation which would be relevant for the officer s seniority but where the officer is promoted in excess of his quota his seniority would arise when a vacancy in his quota becomes available
We are afraid it is not possible to read the judgment as suggest ed
The finding at pages 795F796A in the following words does not leave any room for controversy In this view of the matter the prescription contained in the closing sentence of r 8i that the number of such promotions shall be about 13rd the number of direct re cruits appointed in that year would apply to initial ap pointments and cannot govern the confirmation of those who have already been appointed to Class II cadre
In other words direct recruits and promotees have to be appointed in the proportion of 7525 to Class II cadre the former as Deputy Engineers and the latter as officiating Deputy Engi neers but once that is done the quota rule would cease to apply with the result that confirmations in the post of Deputy Engineers are not required to be made in the propor tion in which the initial appointments had to be made
Thus rule 8i only requires that for every three direct recruits appointed as Deputy Engineers only one promotee can be appointed as officiating Deputy Engineer
The rule cannot be construed to mean that for every three confirmations of Deputy Engineers not more than one promotee can be con firmed as Deputy Engineer
 Relying upon the observations in the Patwardhan s case that the quota 929 system was an important feature of the 1960 Rules it was contended by Mr Tarkunde that it is not permissible to hold that the rule in this regard had been relaxed by the Govern ment or that it had at any point of time broken down
We do not find it permissible to construe the statement in the judgment referred to to lead to such a conclusion
This argument as has been addressed before us on the basis of the quota rule as an additional contention was not pressed in Patwardhan s case and so there was no occasion for this Court to deal with the same
The observations referred to by Mr Tarkunde were made in a different context altogether
If it be assumed that this argument was constructively involved in the Patwardhan s case then it follows that the same must be deemed to have been overruled
The case clearly in unambiguous terms rejected the claim of the direct recruits for seniority over the promotees
The appellants by trying to interpret a part of the observation made in the judgment in a different context in an artificial and uncalled for manner are suggesting that the judgment is self contradic tory but we do not find any justification for such an inference
Still another point confined against a certain category of the officiating Deputy Engineers who were not included in the frozen cadre under the 1970 Rules was at tempted
The contention is that the expressions all the promoted Deputy Engineers and all directly recruited Deputy Engineers used in Patwardhan s case should be given restricted meaning so as not to include those officiating Deputy Engineers who were not included in the frozen cadre within the group of promoted Deputy Engineers and the Assistant Engineers Class II within the group of directly appointed Deputy Engineers
It is said that although in the judgment it was stated that the different groups in the Service were there in representative capacity these groups were actually not represented
Even assuming that to be so it is not possible to hold that the principle of seniority being dependent on continuous officiation will not apply to these groups of the officers
The reasons for rejecting the case of the appellants are equally applicable to all the promoted Deputy Engineers including those who were earlier Sub Divisional Engineers and Sub Divisional Officers as well as all the directly recruited Deputy Engineers
The suggested division of the two groups into further sub cate gories will result in illegal discrimination
Mr Tarkunde also urged that as a result of the judgment in Patwardhan s case it was not necessary to frame the entire rules afresh inasmuch as only r 8iii of the 1960 Rules and r 33 of the 1970 Rules 930 had been struck down
The grievance against the 1982 Rules is that it has disturbed the order of seniority of the parties with retrospective effect which is illegal
The argument has to be rejected as it fails to take note of the finding that the direct recruits who joined the service later than the promotees were at no point of time senior
The 1982 Rules merely recognised this position and gave effect to it
They have excepting the arbitrary and discriminatory provisions of rr 4 and 9 undone the inequality inequity and illegality which were the products of the offending provisions of the earlier Rules and there is no reason whatsoever to doubt their validity
The judgment of the Bombay High Court striking down rr 4 and 9 of the 1982 Rules has been seriously criticised on behalf of the appellants
The grounds of challenge however are the same which have been considered earlier
Excepting the State of Maharashtra challenging this judgment in SLP Nos
16614 15 of 1983 no other party has directly impugned it
So far Mr AS Bhasme who appeared on behalf of the State of Maharashtra is concerned he faintly de fended all the steps of the State taken from time to time and made certain statements which were criticised on behalf of the appellants in the Civil Appeals as amounting to Unjustified concessions in favour of the promotees
Since we have not gone by the stand taken on behalf of the State of Maharashtra before us during the argument and our decision is based on a consideration of the merits of the different questions argued by the parties and not on any concession we do not consider it necessary to deal with Mr Bhasme s argument at any length
We hold that the rr 4 and 9 of the 1982 Rules were tightly struck down and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid
Mr Tarkunde took great pains in analysing the practical effect of the judgment in Patwardhan s case with which we agree and contended that the direct recruits shall suffer seriously if the present Civil Appeals Writ Peti tions and the Special Leave Petitions are not allowed
Mr Singhvi challenged the figures worked out on behalf of the appellants
We do not consider it necessary to go into this controversy as it cannot be denied that as a result of Patwardhan s case and on dismissal of present cases a large number of promotees have to be treated as senior to the direct recruits and in that sense the direct recruits do suffer
This however cannot be avoided
If their case on merits is not correct it cannot be assumed that they were at any point of time clothed with any right which they are being deprived of
If the decision in Patwardhan s case had been given effect to promptly many 931 of them would have been reverted to inferior posts but by their persistance both before the higher authorities of the State and the Courts they have sufficiently delayed the matter so as to avoid the reversion of any one of them
Mr Bhandare appearing in WP No 5187 of 1983 and WP No 8594 of 1983 generally adopted the argument ad dressed by Mr Tarkunde and added by saying that the offi cers should have been on a proper classification divided into 3 classes
namely_ i Assistant Engineers Class I ii the Deputy Engineers directly recruited in Class II and iii the officiating Deputy Engineers promoted from Class III and quota should have been fixed separately for 3 classes right up to the top stage where appointments are to be made by promotion
He prayed for a direction to the authorities to frame fresh rules including appropriate provisions on the lines suggested by him
In view of our finding that the 1982 Rules as amended by the 1984 Rules do not suffer from any infirmity there is no occasion for issuing any further direction
So far the question of fixing the ratio of the appointments from different sources is concerned it is a matter of policy for the Government and it is not for us to offer our advice
The petitioner in WP No 5187 of 1983 SB Soho ni was directly appointed as a Deputy Engineer in March 1961 and was confirmed in 1963
It was therefore rightly pointed out by Mr Sighvi that he was not concerned with the 1978 Rules at all
The writ petition in absence of grounds relating to the 1978 Rules confirms this impression
He has of course challenged the 1982 Rules as they stood before the amendment in 1984 but did not after 1984 amendment make any prayer for modification of his writ petition
He also did not consider it necessary to file an appeal against the High Court judgment
No additional ground has been raised on his behalf to be dealt with separately
So far the petitioner in Writ Petition No 8594 of 1983 JT Jangle is concerned he was an earlier appointee and was included in the seniority list of November 1956
This list was confirmed by the decision in Patwardhan s case vide page 800G of the judgment as reported in  It has been stated in his petition that although some junior officers were promoted as Executive Engineers earli er his promotion was delayed and took place in October 1973
He has not given the details in this regard or the names of the junior officers who superseded him
He was not considered eligible for promotion as Executive Engineer earlier as he had not completed 7 years  service as required by the 1960 Rules
He has not impleaded those who 932 have superseded him and has not made any specific prayer in this regard
Besides in view of the decision in PY Joshi s case supra he could not have claimed promotion before completing 7 years of service
We do not find any merit in either of the two writ petitions WP No 5187 of 1983 and WP No 8594 of 1983 pressed by Mr Bhandare
Writ Petition No 1327 of 1982 was argued by JH Bhatia the petitioner in person
He was directly recruited as Deputy Engineer Class II in July 1959 and has challenged the constitutional validity of the 1978 Rules
Mr Singhvi the learned counsel for the respondents took a preliminary objection to the maintainability of the writ application on the ground that his claim stands barred by principles of res judicata
Admittedly he was represented in WP No 672 of 1981 filed before the Bombay High Court which was dismissed on 79 1981 upholding 1978 Rules
An application under article 136 of the Constitution being numbered as SLP No 8064 of 1981 was filed from this judgment in representative capacity and was dismissed by this Court on 2912
These facts were not denied by the petitioner before us and it was therefore contended on behalf of the respondents that so far the validity of the 1978 Rules is concerned it must be held to be binding on the petitioner in respect of iden tical relief now pressed by him in the present writ case
The objection appears to be well founded
It is well estab lished that the principles of res judicate are applicable to writ petitions
The relief prayed for on behalf of the petitioner in the present case is the same as he would have in the event of his success obtained in the earlier writ petition before the High Court
The petitioner in reply contended that since the special leave petition before this Court was dismissed in limine without giving any reason the order cannot be relied upon for a plea of res judicata
The answer is that it is not the order of this Court dismissing the special leave petition which is being relied upon the plea of res judicata has been pressed on the basis of the High Court s judgment which became final after the dismissal of the special leave petition
In similar situation a Con stitution Bench of this Court in Daryao and Others vs The State of UP and Others   held that where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata
The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice so much empha sised by the Constitution is 933 rounded and a judgment of the High Court under article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32
An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 of the reported judgment thus We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same
 The decision in Forward Construction Co and others vs Prab hat Mandal Regd Andheri and Others   further clarified the position by holding that an adjudica tion is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence
Thus the principle of constructive res judicata underlying Explana tion IV of section 11 of the Code of Civil Procedure was applied to writ case
We accordingly hold that the writ case is fit to be dismissed on the ground of res judicata
The petitioner however was permitted during the hearing to place his case on merits and he did so at some length and Mr Singhvi replied thereto
We have considered the arguments carefully and do not find any substance in the claim of the petitioner and we proceed to indicate our reasons briefly
The petitioner JH Bhatia was appointed Deputy Engineer as a direct recruit in 1959 and was promoted as Executive Engineer in 1969
According to his case he was governed by the 1941 Rules and was therefore entitled to a higher position in the list of seniority
It has been con tended by him that he was entitled to the benefit of either the 1941 Rules or the provision relating to quota in 1960 Rules and in either event he
would have been eligible for promotion to the rank of Executive Engineer three years earlier that is in 1966
On account of this delay in his promotion he seriously suffered by the further delay in his next promotion as Superintending Engineer by a considerable 934 period
With reference to the criticism against the 1941 Rules in the judgment of Patwardhan s case the petitioner urged that the same should be treated as passing remarks
fit to be ignored
Alternatively he has adopted the argu ments addressed on behalf of the appellants challenging the correctness of the decision in Patwardhan s cast 38
As has been stated earlier the seniority list of the Deputy Engineers for the period up to 1111956 was confirmed in the Patwardhan s case
The question of deter mining the seniority for the subsequent period arose in pursuance of the further decision in this judgment
The 1960 Rules were enforced with effect from 3041960 which intro duced for the first time several new provisions including the quota rule
The period from 1111956 to 3041960 was therefore separately dealt with by framing the 1978 Rules under Article 309 of the Constitution
In accordance with the decision in Patwardhan s case the seniority list of the Deputy Engineers as on 1111956 was declared by these Rules as valid final and binding and thereafter the further seniority fists were directed to be prepared for the years 1957 1958 1959 and 1960 on the basis of continuous offici ation in accordance with the judgment
The petitioner con tends that the judgment in Patwardhan s case cannot be interpreted to have struck down the 1941 Rules and the claim of the direct recruits appointed prior to the coming in force of the 1960 Rules must be upheld in view of the provi sions of r 2 of the 1941 Rules
The 1941 Rules contained only two rules which are quoted below 1
In the case of direct recruits appointed substantively on probation the seniority should be determined with refer ence to the date of their appointment on probation
In the case of officers promoted to substantive vacan cies the seniority should be determined with reference to the date of their promotion to the substantive vacancies provided there has been no break in service prior to theft confirmation in those vacancies
Mr Singhvi replied by saying that r 2 aforemen tioned when properly understood does not help the peti tioner at all inasmuch as the rule refers to substantive vacancies and not permanent appointments and substantive vacancies can arise even in temporary posts
Reliance was placed on the observations in Baleshwar Dass  V 1981 1 SCR 449
However we do not consider it necessary to deal with this argument as in our view the petitioner cannot succeed even 935 otherwise
The substance of the petitioner s argument is again the same as has been contended on behalf of the appel lants in the Civil Appeals namely that the principle of seniority being dependent on continuous officiation as laid down in Patwardhan s case should not be accepted
The con tention is that the seniority ought to be reckoned with reference to the dates of permanent appointment in the cadre
This argument precisely was rejected in Patwardhan s case and we are in complete agreement with the same
We also do not accept the argument of the petitioner that the judg ment did not deal with the 194 1 Rules
The said Rules were pointedly considered at pages 790G79 IE in the published report and it was inter alia held The 194 1 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleas ure of the Government for orders of confirmation
In the pre Constitution era such hostile treatement had to be suffered silently as a necessary incident of government service   It has to be remembered that the 1941 Rules made under an executive instruction do not stand on a stronger footing than the provisions of the subsequent similar Rules which have been struck down on the ground of illegal discrimina tion and as in the case of the 1982 and the 1984 Rules the 1978 Rules also were framed under Article 309 of the Consti tution
No valid objection can be taken against the 1978 Rules made for undoing the wrong resulting from arbitrari ness and offensive discrimination which had visited the promotees
Mr Bhatia has by his written argument belatedly alleged mala fides on the part of the State Government on the ground that it failed to prepare and publish select fists for a number of years and it attempted to mislead this Court by not stating the correct position in regard to the cadre of the Deputy Engineers and the 1941 Rules
We do not find any justification for the petitioner or any other direct recruit to urge lack of bona fides on the part of the State
We do not find any merit in any of the submissions addressed by the petitioner
The retired Superintending Engineer Shripad Shankar Patwardhan intervenor in Writ Petitions No 1327 of 1982 5187 of 1983 and 8594 of 1983 also made a few submissions in person and filed a note of his argument in the shape of an affidavit
He has not raised any additional ground and it is not necessary to discuss his case any further
936 42
The two petitioners in Writ Petitions No 3947 48 of 1983 are Executive Engineers in the Irrigation Department of the Government of Gujarat
Although the case was initially filed through advocates at the hearing on a request by them the petitioner No 1 was allowed to argue the case in person on their behalf
Besides impleading the State of Gujarat the Government of Maharashtra and the Union of India as respondents No 1 2 and 3 respectively HN Shah another officer of the same Department was made a party as re spondent No 4 in the writ petition
The case of the peti tioners is that the respondent No 4 was junior to them and was erroneously treated as senior in the seniority lists for the period 1111956 to 3041960 prepared in accordance with the 1978 Rules
The writ petition states that the petitioners were in Subordinate Engineering service of the former State of Bombay when they appeared at the competitive examination held for direct recruitment and were appointed Deputy Engi neers
At the same examination HN Shah respondent No 4 who was an officiating Deputy Engineer also appeared and was appointed a Deputy Engineer as a direct recruit and his name appeared in the list below the petitioners
After the bifurcation of the two States of Maharashtra and Gujarat in 1960 the petitioners as well as the respondent No 4 were allocated to the State of Gujarat
In 1969 the petitioner No 1 and the respondent No 4 were promoted as Executive Engineers and the name of the respondent No 4 was again shown lower in the list
It is stated in paragraph 13 of the writ petition that the petitioner No 2 was temporarily dropped in this promotion order on administrative grounds
It is contended on behalf of the petitioners that these lists correctly placed the respondent No 4 below the peti tioners but the subsequent lists prepared in pursuance of the 1978 Rules wrongly show him as senior
A counter affidavit on behalf of the State of Maharash tra was filed inter alia denying several allegations in the writ petitions explaining certain circumstances by giving all the relevant materials and explaining the situation
SB Patwardhan the petitioner in the reported case also intervened and refuted the claim of the petitioners
The respondent No 4 has retired in the meantime and has not appeared in this case
The petitioner No 1 after making a very brief argu ment filed written submissions but since in our view the Patwardhan s case was correctly decided the State was under a duty to prepare fresh 937 seniority lists for the period 111 1956 to 3041960 and this was done after framing the 1978 Rules
We do not find any merit in the challenge to the 1978 Rules as indicated earlier and in that view these writ petitions are fit to be rejected specially as the respondent No 4 has already retired
The only other case which was separately argued on behalf of the petitioners was Writ Petition No 12570 72 of 1983
Mr Vinod Arvind Bobde the learned counsel for the petitioners in a brief submission adopted the argument of Mr Tarkunde and reiterated that the finding in the Patward han s case about the temporary posts being included in the main cadre was erroneous
The point has already been dealt with 44
To sum up we hold that A Once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of his appointment and not according to the date of his confirma tion
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement the officiation in such post cannot be taken into account for considering the seniority
B If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisa tion of his service in accordance with the rules the period of officiating service will be counted
C When appointments are made from more than one source it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard they must ordinarily be followed strictly
D If it becomes impossible to adhere to the existing quota rule it should be substituted by an appropriate rule to meet the needs of the situation
In case however the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down
938 E Where the quota rule has broken down and the appoint ments are made from one source in excess of the quota but are made after following the procedure prescribed by the rules for the appointment the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date
F Where the rules permit the authorities to relax the provisions relating to the quota ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule
G The quota for recruitment from the different sources may be prescribed by executive instructions if the rules are silent on the subject
H If the quota rule is prescribed by an executive instruction and is not followed continuously for a number of years the inference is that the executive instruction has ceased to remain operative
I The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engi neers
J The decision dealing with important questions con cerning a particular service given after careful considera tion should be respected rather than scrutinised for finding out any possible error
It is not in the interest of Service to unsettle a settled position
With respect to Writ Petition No 1327 of 1982 we further hold K That a dispute raised by an application under article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final
In view of the above and the other findings recorded earli er we do not find any merit in any of the civil appeals writ petitions and special leave petitions which are accord ingly dismissed
There will be however no order as to costs
Appeals and Petitions are dismissed


Summary:
The petitioners are social workers and Members of Kisan Adivasi Sangathan Kerala
They alongwith a large number of tribal people had staged peaceful dharnas  in front of the office of Block Education Officer demanding appointment of regular teachers in the school located in the tribal ham lets
The local police initiated criminal proceedings against them for offences punishable under section 186 IPC on the allegations that they had obstructed public servants in discharge of their public functions
The Magistrate convicted petitioners 1 to 3 and sentenced them to undergo simple imprisonment for a period of one month
The petition ers 1 and 2 though having served their one month imprison ment from 2241989 to 2151989 were not released from jail but continued to be detained on the allegation that they were wanted in two more cases
In the writ petitions filed in this Court the main grievance was that petitioners 1 to 3 on being arrested were subjected to torture and treated in a degrading and inhuman manner by handcuffing and parading them through the public thoroughfare during transit to the Court
in utter disregard to the judicial mandates of this Court
On these allegations the petitioners contended that they were entitled to compen sation
The respondents have not denied the allegation of hand cuffing
but have attempted to justify the action of the escort police
In this connection
the respondents have relied on Paragraph 4651 of Part III dealing with escort ing of arrested and convicted persons including 872 Political Persons failing under Chapter VII of Madhya Pradesh Police Regulations
Under this regulation if the escort in charge feels the necessity of handcuffing persons he is empowered to do so
Disposing of the petitions this Court HELD 1 In spite of weighty pronouncement made by this Court decrying and severely condemning the conduct of the escort police m  handcuffing the prisoners without any justification it is very unfortunate that the Courts have to repeat and re repeat its disapproval of unjustifiable handcuffing 862G Prem Shankar Shukla vs Delhi Administration   Bhim Singh MLAv
State of Jammu  Kashmir  Ors  Maneka Gandhi vs Union of India 1978 1 SCC 248 Sunil Batra vs Delhi Administration  and Sunil Batra II vs Delhi Administra tion   referred to
2 The petitioners are educated persons and selflessly devoting their service to the public cause
They are not the persons who have got tendency to escape from the jail custo dy
In fact the petitioners 1 and 2 even refused to come out on bail but chose to continue in prison for a public cause
The offence for which they were tried and convicted under section 186 of Indian Penal Code is only a bailable offence
884B C 3 When a person is remanded by a judicial order by a competent court that person comes within the judicial custody of the Court
Therefore
the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court
884D 4 Even if extreme circumstances necessitate the escort party to bind the prisoners in fetters the escort party should record the reasons for doing so in writing and inti mate the Court so that the Court considering the circum stances either approves or disapproves the action of the escort party and issues necessary directions
884D 5 Undeniably the escort party neither got instruc tions nor obtained any orders in writing from the Magistrate or the Jail Superintendent regarding handcuffing of the petitioners
881D 6 Even assuming that the petitioners obstructed public servants in discharge of their public functions during the dharna  or raised any 873 slogans inside or outside the Court that would not be sufficient cause to handcuff them
Further there was no reason for handcuffing them while taking them to Court from jail on 2241989
884C D 7 It is most painful to note that the petitioners who staged a dharna  for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India
884E F 8 The Government of Madhya Pradesh is directed to take appropriate action against the erring escort party for unjustly and unreasonably handcuffing petitioners 1 and 2 on 22489 in accordance with law
884H 9 It is open to the petitioners to take appropriate action against the erring officials in accordance with law if they are so advised and in that case
the Court in which the claim is made can examine the claim not being influenced by any observation made in this judgment
885C