ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time
In fact he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat
It is therefore terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority
The affidavit filed by the Deputy Superintendent of Police is therefore not worth consideration
841D F 836F G  CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 30 1 of 1990
From the Judgment and Order dated 1511990 of the Rajasthan High Court in HCP No 2866 of 1989
Pallave Shishodia Sandeep Mehta and D Bhandari for the Appellant
Chandmal Lodha SC Gupta NP MN Shroff I Makwana and Manoj Prasad for the Respondents
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No 28661989 dismissing the Writ Petition filed by the detenu Gazi Khan  Chotia
The order of detention dated 305
1989 under challenge has been passed by the Administrative Secretary and Commis sioner Home Department State of Rajasthan in exercise of powers under Section 834 31 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act 1989 for short the Act  on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances
The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows The detenu Gazi Khan  Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities
However the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities
The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling
On 311
1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides
He was suspected in Offence No 32 dated 3031988 as well in Offence No 17 dated 17488 under the provisions of the Act as well under Section 25 of the Arms Act
But since no evidence was available incriminating the detenu with those offences no action could be taken
Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code
The detaining authority on the above materials placed before him has passed this impugned order
The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration
Hence this appeal
The learned counsel appearing on behalf of the appel lant raised several contentions the main thrust of which being that the representation made by the detenu was not decided within
a reasonable time and hence the delay is fatal to the detention
This point has been taken even before the High Court
But the High Court accepting the explanation given by the Deputy Superintendent of Police Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing In the present case as from the facts mentioned in the additional affidavit and referred to above it cannot be said that there was undue lethargy or indifference 835 Under Ground No d of paragraph 16 of the Special Leave Petition a contention is raised with regard to the delay of disposal of the representation stating that the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner
 Before this Court a reply is filed by the Deputy Super intendent of Police Jaisalmer stating that he is appointed as Officer Incharge in this case and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case
In para graph 15d of his reply it is averred that there is no delay in the consideration of representation of the peti tioner
 The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 196
1989 with a proposal that a report might be called from the District Magistrate Jaisalmer who was the sponsoring authority that the District Magistrate who received the communication on 2261989 forwarded his comments to the State Government on 2961989 that the comments were re ceived by the State Government on 17 1989 and were placed for perusal of the Assistant Secretary on 371989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 971989 and thereafter on the recommendation of the Special Secretary Home the representation was rejected on 1171989
A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority namely the State Government as well the authorities who dealt with the representation namely the Assistant Secretary and the Special Secretary Home Department
Finally in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus    The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority
 In this connection we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2
After the judgment was reserved we after going through the papers directed the matter to be reported for further hearing
Accordingly the matter was listed on 1741990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file
The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary Home Department dated 2141990
In the present additional affidavit no explana tion is given to our query
The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration
 We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority
This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection
This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances
However when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority the said authority should himself swear to the counter affidavit
In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned
A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik  in which a similar question arose the learned Judges answered as follows    if the Home Secretary has the requisite means of knowledge for example if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary s affidavit was regarded as sufficient in the particular case then that would con stitute legally sufficient proof
But whether that would be enough in any given case or whether the best evidence rule should be applied in strictness in that particular case must necessarily depend upon its facts
In the present case there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day
But we do not intend to enter into the merits
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases then they went too far In Ranjit Dam vs State of West Bengal 16 the counter affidavit was filed by the Assistant Secretary Home Special Department who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board
This Court in that circumstance stated thus The reason given in this counter affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory
But as nothing terms on that fact we need say no more about it for the present
 Sarkaria J in Shaik Hanif vs State of West Bengal  observed thus 838 Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards it is all the more desirable that in response to the rule nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the author ity on whose subjective satisfaction the detention order under Section 3_ was passed
If for sufficient reason shown to the satisfaction of the Court the affidavit of the person who passed the order of detention under Section 3 cannot be furnished the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submit ted it to the Minister or other officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters
 The learned Judge after referring to Ranjit Dam s case albeit and to IN Roy vs State of West Bengal stated as under Nevertheless the failure to furnish the counter affidavit of the Magistrate who passed the order of detention is an impropriety
In most cases it may not be of much conse quence but in a few cases for instance where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority it may taken in conjunction with other circumstances assume the shape of a serious infirmity leading the Court to declare the detention ille gal
 71 having regard to the facts of that case wherein the Deputy Secretary Home filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order
Speaking for the Bench Krishna Iyer J in Bhut Nath Mete vs State of West Bengal 11974 1 SCC 645 at page 658 para 21 has expressed his considered view on this point as hereunder True we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy
Why 839 is an affidavit then needed at all The fact of subjective satisfaction solemnly reached considering relevant and excluding irrelevant facts sufficient in degree of danger and certainty to warrant pre emptive casting into prison is best made out by the detaining District Magistrate not one who professionally reads records and makes out a precis in the form of an affidavit
The purpose is missed going by the seriousness of the matter the proof is deficient going by ordinary rules of evidence and the Court is denied the benefit of the word of one who takes responsibility for the action if action has to be taken against the detainer later for misuse
We are aware that in the exigencies of adminis tration an officer may be held up far away engrossed in other important work thus being unavailable to swear an affidavit
The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who long later reads old files and gives its gist to the Court
Mechanical means are easy but not legitimate
We emphasize this infirmity because routine summaries of files marked as affidavits appear in the returns to rules nisi showing scant courtesy to the constitutional gravity of deprivation of civil liberty
In some cases where a valid reason for the District Magistrate s inability to swear affidavits directly has been furnished this Court has accepted the concerned Deputy Secretary s affidavit
This should however be the exception not the rule
 Khanna J in Asgar Ali vs District Magistrate Burdwan  Ors while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order observed as follows Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus the absence of such an affidavit would not necessarily be fatal for the case of the respond ents
It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity
In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 making the detention order the affidavit of the person making the detention order would be essential for repelling that allegation
Likewise such an affidavit would have to be filed in case serious allegations are made in the peti tion showing that the order was mala fide or based upon some extraneous considerations
In the absence of any such alle gation in the petition the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate but that of the Deputy Secretary Home Special Department of the Government of West Bengal would not by itself justify the quashing of the detention order
 In Suru Mallick vs State of West Bengal  this Court accepted the affidavit of the Deputy Secretary Home who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business
In Gulab Mehra vs State of UP  Ors  1988 1 SCR 126 a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future
Ray J speaking for the Bench while setting aside the order of detention held thus This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act
The District Magistrate the detaining authority in this case has not chosen to file his affidavit
The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order
 Again in State of Gujarat vs Sunil Fulchand Shah  Anr   accepting a further affidavit of the Deputy Secretary Home Department this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally
However the Court said It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances 841 Recently in Madan Lal Anand vs Union of India Dutt J speaking for the Bench pointed out There can be no doubt that a deponent who has no personal knowledge about any fact may on the basis of some other facts make his submissions to the court
We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit
 Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority then the detaining authori ty should himself swear to the counter affidavit
Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter the learned Judge pointed out Merely because the detaining authority has not sworn an affidavit it will not in all circumstances be fatal to the sustenance of the order of detention As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time
In fact the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat
Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989 ie for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate
The present additional affidavit sworn to by the Commissioner and Secretary on 2141990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary
The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs VK Saraf Commissioner of Police  Ors to which decision one of us Ratnavel Pandian J was a party
In that decision 842 after referring to various decisions of this Court including Smt
Shalini Soni vs Union of India
  the following proposition was laid down The detenu has an independent constitutional right to make his representation under Article 225 of the Constitution of India
Correspondingly there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution However in the same decision it has been pointed out that what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard
 We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary
Therefore for the reasons stated above we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 225 of the Constitution of India
In the result the appeal is allowed and the detenu is directed to be set at liberty forthwith
PV Appeal al lowed


Summary:
The parties in these matters are Engineers in the em ployment of the States of Maharashtra and Gujarat
In 1937 Government of Bombay created two new Provincial Engineering Services known as the Bombay Engineering Service Class I consisting of posts of Chief Engineer SUperintending Engi neers ExecUtive Engineers and Assistant Engineers Class I and the Bombay Engineering Service Class II 901 having officers designated as Deputy Engineers
All the posts were permanent
In 1939 Rules were made for regulating the methods of recruitment to the said services which directed the recruit ment to be made either by nomination from amongst the stu dents of the College of Engineering Pune or by promotion of officers holding inferior posts
A resolution was passed on 21111941 for determination of the seniority of the direct recruits and the promotee officers containing only two rules
Rule 2 thereof was to the effect 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 1I Services were framed
In place of nomination from the successful students of College of Engineering 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 refer ence to promotion as Executive Engineers on officiating basis and temporary Deputy Engineers and officiating Deputy Engineers
By r 8 the posts of Deputy Engineers were re organised and by sub rule iii it was provided 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 or rules were adopted in 1970
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 Oth ers 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
The strength of the permanent Deputy Engineers was fixed at the total number of a the Deputy Engineers con firmed up to the date of commencement of the Rules b direct recruits to the posts of Deputy Engineers appointed till the date of commencement of the Rules and c the Deputy Engineers officiating on 3041960 and it was pro vided that no fresh appointments in future would be made to 902 this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub rule in proportions indicated
As per rule 33 of the 1970 Rules the seniority list in each cadre in Class I and Class II was to 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
Though the Rules were amend ed in 1972 there was no departure from the main scheme especially the principle governing seniority
In pursuance of the 1970 Rules seniority lists were prepared
The validity of r 8iii of the 1960 Rules and of r 33 of the 1970 Rules was successfully challenged as being violative of Articles 14 and 16 of the Constitution
SB Patwardhan and Ors
vs State of Maharashtra and Ors   In view of the judgment in Patwardhan s case it became necessary to prepare fresh seniority lists
Rules were framed under Article 309 of the Constitution read with section 816 of the Bombay Reorganisation Act 1960 and were called the Re organised Bombay State Overseers and Deputy Engineers Seniority Lists Rules 1978
In 1981 further rules called Re organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules
1981 were flamed laying down the rule of determina tion of seniority of the Assistant Engineers and the Execu tive Engineers for the period 1111956 to 30460
These rules have been successfully challenged in the High 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 201270 and are called the Maharashtra Service of Engineers Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period Rules 1982
These rules were framed in view of the decision of the Bombay High Court in SB Patwardhan s case
By including two rules therein Rules 4 and 9 deleted later fixing rigid quota with retrospective effect attempt was made to neutralise the 903 decision and rob the promotees the benefit of their continu ous officiation
For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing from 21121970 separate rules were framed under Article 309 of the Constitution and are called the Executive Engi neers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II Regulation of Seniority and Preparation and Revision of Seniority Lists Rules 1983
As a result of a decision of the High Court striking down Sections 4 and 9 of the 1982 Rules the 1984 Rules were framed by the Govern ment
The present appeals special leave petitions and Writ Petitions challenge the validity of the Rules framed in 1978 1982 1983 and 1984
Dismissing all these matters this Court HELD 1
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 for determining his seniority and sen iority cannot be determined on the sole test of confirma tion for confirmation is one of the inglorious uncertain ties of government service depending neither on efficiency of the incumbant nor on the availability of substantive vacancies
The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Arti cles 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 appointee because of the qualitative difference in the appointment
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 appoint ment 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
914G H 915A D SB Patwardhan vs State of Maharashtra   904 Baleshwar Das vs State of UP 1981 1 SCR 449 Delhi Water Supply and Sewage Disposal Committee  Ors
RK Kashyap  Ors 1989 Supp 1 SCC 194 and Narender Chaddha 21 It is incorrect to say that the 1970 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 conclu sion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers
One cannot attribute fixed connotation to the expression promotion  without reference to the context
The expression has been used in the sense of confirmation
The language used in several other rules is inconsistent 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 Engi neers
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 offi ciating Deputy Engineers who started officiating later than 3041960
Rule 13 speaks of officers officiating in the erstwhile cadre of Deputy Engineers and r 27 of officiat ing promotions which are inconsistent with two cadre theo ry
In r 33 of the 1970 Rules also two lists were directed to be prepared not cadre wise but in each cadre clearly indicating that the lists were different from cadres
In r 81 of the 1960 Rules also the different groups were not described as different 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 provisions are considered they unmistakably lead to the said conclusion
918A F 22 Questions 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 lightly
It is highly desirable that a decision which concerns a large number of government servants in a particular service and which has been given after careful consideration of the rival contentions is respected rather than scrutinised for finding out any possi ble error
It is not in the interest of 905 the service to unsettle a settled position every now and then
918G H 919A 23 Even on an independent consideration of the provi sions of the Rules and the relevant materials the temporary posts of Deputy Engineers against which promotees officiat ed 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 the language used therein amply supports this view
921A E SB Patwardhan vs State of Maharashtra  and PY Joshi vs
State of Maharashtra  followed
State of Gujarat vs
CG Desai  Ors 1974 2 SCR 255 distinguished
Baleshwar Dass vs State of UP  Ors 1981 1 SCR 449 referred to
31 The quota rule was for the first time introduced by the 1960 Rules
These Rules were introduced through execu tive instructions issued by the State Government
The ratio of 31 was fixed for the purpose of appointment and not for the strength in the service
It permitted the State Government to exercise its discretion according to the demand of the exigencies by using the expression as far as practicable
 There is no reason to so restrict the scope and meaning of the expression as far as practicable
The quota rule must he held to be realistic and flexible true to life rather than abstractly absolute
923C H 924A B 32 When recruitment is from more than one source there is no inherent invalidity in introducing quota system but 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 he 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 appropriate rule according to the situation
925A C 33 In the present cases direct recruits were not avail able in adequate number for appointment and appropriate candidates in the 906 subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue
The development work of the State peremptorily required experi enced and efficient hands
In the situation the State Gov ernment took a decision to frill up the vacancies by promo tion in excess of the quota but only after subjecting the officers to the test prescribed by the rules
All the eligi ble candidates were considered and the opinion of the Public Service Commission was obtained
925D E 34 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 subsequently
The later appoint ees may have been young students still prosecuting their studies when the appointments from the other source take place 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 pre sumption in favour of the exercise of the power of relaxa tion
There would he still a third consideration relevant in this context namely what is the conclusion to he drawn from deliberate continuous refusal to follow an executive instruction fixing the quota The inference would be that the executive instruction has ceased to remain operative
In all these cases the matter would however he subject to the scrutiny of the Court on the ground of mala fide exercise of power
All the three circumstances mentioned above which are capable of neutralising the rigours of the quota rule are present in the cases and the principle of seniority being dependant on continuous officiation cannot be held to have been defeated by reason of the ratio fixed by the 1960 Rules
1926C G PC Sethi vs Union of India  and NK Chauhan vs State of Gujart   relied on
SB Patwardhan vs State of Maharashtra   affirmed
PS Mahal vs Union of India  and VB Badami etc
vs State of Mysore  Ors 1976 1 SCR 815 distinguished
Paramjit Singh Sandhu vs Ram Rekha  Ors
   907 AK Subraman vs Union of India 1975 2 SCR 979 Bishen Sarup Gupta vs Union of India 1975 Supp
SCR 491 and SG Jaisinghani vs Union of India  Ors   referred to
It is not possible to hold that the principle of seniority being dependant on continuous officiation will not apply to certain groups of the officers
The reasons for rejecting the case of the appellants in Patwardhan s case 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 subcategories will result in illegal discrimination
929F G 5
Rules 4 and 9 of the 1982 Rules were rightly struck down by the High Court and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid
930A B 6
It is well established that the principles of res judicata are applicable to Writ Petitions
A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure if the same has been earlier decided by a competent court by a judgment which became final
932E 933D E Daryao  Ors
vs State of UP  Ors
  and Forward Construction Co vs Prabhat Mandal Regd Andheri  Ors
   relied on