No 1113 of 1974
From the Judgment and Order dated the 151617 1 1974 of the Bombay High Court in SCA No 815 of 1972 AND CA No 242 of 1974 From the Judgment and order dated the 14 7 1973 of the Gujarat High Court in SCA No 1418 of 1971
C As
Nos 285 287 of 1974
From the Judgment and Order dated the 14 7 1973 of the Gujarat High Court in SCA No 141871 42270  109969 respectively
K K Singhvi in CA 111374 4
K Garg SC Agarwal and VJ Francis for the appellants in CAs 1113and 24274  for respondents Nos 2 3 5 6 13 in CA No 285 Rr 2 18 in CA 286 and for Rr 3 7 16 23 28 and 33 35 39 41 43 and 45 in CA 28774
MC Bhandare and MN Shroff for respondent s 1 and 2 in CA 111374
MV Paranjpe MK Joshi K Rajendra Choudhary and Mrs Veena Devi for respondent No 3 in CA No 111374
MK Ramamurthi Vimal Dave and Miss Kailash Mehta for the appellants in CAs 285 to 287774 and for the respondents No 2 and 3 in CA 24274
DV Patel in CA 285 to 28774 PH Parekh and MN Shroff for the respondent No 1 in CAs Nos
24274 and 285 to 287 of 1974
The Judgment of the Court was delivered by CHANDRACHUD J
This is a group of five appeals one from Maharashtra and four from Gujarat
They involve substantially identical questions and since the appeal from the judgment of the Bombay High Court was argued as the main appeal we will refer to the facts of that appeal and indicate at appropriate places if there is any material difference between those facts and the facts leading to the Gujarat appeals
Civil Appeal No 1113 of 1974 from Maha rashtra is by certificate granted by the High Court of Bombay under article 1331 a  b of the Constitution
Civil Appeals Nos 242 and 285 287 of 1974 from Gujarat are also by certificate granted by the Gujarat High Court under article 1331 of the Constitution
Special Civil Application No 815 of 1972 which has given rise to Civil Appeal No 1113 of 1974 was disposed of by a Division Bench of the Bombay High Court by its judg ment dated 15th 16th and 17th January 1974
The four Gujarat appeals arise out of 781 Special Civil Applications Nos 1099 of 1969 422 of 1970 and 1418 of 1971 which were disposed of by a Full Bench of the Gujarat High Court by its judgment dated July 14 1973
The complexity of the questions involved in these ap peals has been expressed by the Bombay High Court by saying that the writ petitions before it involved ticklish and complicated questions and by the Gujarat High Court by saying that though it had many occasions to consider complex problems pertaining to service laws there was no case comparable to the writ petitions filed before it in the instant case
The learned Chief Justice Bhagwati J who delivered the judgment of the Full Bench obserVes that these questions of unrivailed complexity had caused considerable anxiety to the Court in reaching a satisfactory conclusion
We share this anxiety which is further heightened by the diametrically opposite and entirely inconsistent stands taken by the State governments from time to time
Evidently the State governments did not know their own mind and being unable to take up a firm and consistent stand they defended the various Writ petitions filed against them by their employees according to the mood of the passing moment
That must be deprecated
The appeals raise the familiar question of seniority in service the competing groups being promotees on the one hand and direct recruits on the other to the posts of Deputy Engineers
The writ petitions were filed and de fended by the rival groups in a representative capacity so that our decision will bind not only the parties thereto but all others whom under the relevant provisions of the Code of Civil Procedure they were permitted to represent
Taking the facts of the Maharashtra case the two appel lants therein were
initially recruited as Overseers in 1953 and were promoted temporarily as Deputy Engineers in Janu ary 1959 and October 1957 respectively
They were con firmed as Deputy Engineers after the coming into force of certain rules framed on February 19 1970
The 1st respondent to the appeal is the State of Maharashtra
The 2nd and 3rd respondents were appointed directly on probation as Deputy Engineers
They are Engineering Graduates but so are the appellants
Respondents 2 and 3 qualified for direct appointment after passing a competitive examination in 1963 and 1959 respectively
They were confirmed two years later in 1965 and 1961 respectively
The grievance of the appellants is that notwithstanding the length of their continuous service as Deputy Engineers since 1959 and 1957 respondents 2 and 3 were shown as senior to them in the Cadre of Deputy Engineers though they were appointed later in 1963 and 1959 respectively The appellants claim that their seniority should have been fixed under the rules framed by the then Government of Bombay on November 21 1941 as clarified by the Chief Secretary to that Government by his letter dated January 11 1949
According to them the rules flamed by the Maharashtra Government on April 29 1960 cannot take away the right which had accrued to them under the rules existing fat the time of their promotion in 1959 and 1957
They challenge the validity of rule 8iii of the 1960 rules and of rule 33 of the 1970 rules aS being violative of articles 14 and 16 of the 782 Constitution
They also challenge the 1970 rules on the ground that they lack approval of the Central Government thereby violating the proviso to s81 6 of the Bombay State Reorganisation Act of 1960
According to the appel lants the 1960 rules were superseded by the rules dated July 29 1963 and still the State Government continued to apply the defunct rules of 1960
On these grounds broad ly the appellants filed a writ petition in the Bombay High Court on behalf of themselves and all those promoted as Deputy Engineers in Class II of the Maharashtra Engineering Service
Putting it as briefly as one may the sum and substance of the stand taken by respondents 2 and 3 is that neither the 1941 rules nor the 1963 rules are applicable to employ ees in Maharashtra Engineering Service
The posts of Deputy Engineers according to them and according to the State of Maharashtra were required to be filled in by direct recruits and promotees in the ratio of 75  25 under the 1960 rules which had super seded the earlier rules of 1939
Therefore ac cording to them the question of seniority of the appellants could not possibly arise until they were con firmed and seniority has to be fixed from the respective dates of confirmation in terms of rule 8iii of the 1960 rules
The Government of Maharashtra contended that the confirmation of appellants depended necessarily on the availability of vacancies allotable to them within the quota of 25 of the total vacancies and delay in passing orders of confirmation was inevitably caused by the fact that the number of officiating Deputy Engineers was much too large
In order to rectify the somewhat unsatisfactory position the State Government according to its contention framed the 1970 rules altering the ratio of direct recruits and promotees from 75 25 to 34 66 as a result of which sever al promotees were confirmed
Even prior to that according to the State Government whenever vacancies occurred in the substantive posts which were required to be filled is ac cording to the prescribed ratio those vacancies were duly filled in from amongst the officiating Deputy Engineers and they were given anterior dates of confirmation with effect from the dates when the vacancies had actually occurred
The respondents disputed that rule 8iii of the 1960 rules and rule 33 of 1970 rules were unconstitutional or otherwise invalid
Before examining the merits of these contentions it would be necessary for a proper understanding of the issues involved in the case to set out briefly the history of the Engineering Service and the background in which the various rules came to be framed
The Engineering Service in the then province of Bombay consisted prior to 1937 of i the Indian Engineering Service which was an All India Service ii the Bombay Subordinate Service of Engineers iiiSupervisors both permanent and temporary and iv temporary Engineers appointed annually
The Bombay Subordinate Service of Engineers consisted of non gazetted Class III employees in which 2 posts used to be filled in annually by direct re cruitment on the basis of the results of the examination held for Diploma in Civil Engineering
The remaining posts used to be filled in by promotion from the 783 rank of temporary Overseers
On March 22 1937 the Govern ment of Bombay in the Public Works Department passed a resolution reorganizing the Engineering Service
This resolution contemplated the creation of two new Provincial Engineering Services to be designated as Bombay Engineering Service Class I and Bombay Engineering Service Class 1I
The cadre strength of Class I Service was fixed initially at 36 while that of Class II Service was fixed at 80
Class I Service comprised the apex posts of Chief Engineer Superin tending Engineer and Executive Engineer and the junior posts of Assistant Engineers
Class II Service consisted of Deputy Engineers only
On September 21 1939 the Government of Bombay passed a resolution adopting rules for regulating the methods of recruitment to the posts of Assistant Engineers and Execu tive Engineers in Class I Service and the posts of Deputy Engineers in Class II Service
These rules were made by the Governor of Bombay in exercise of the powers conferred by section 2412 b of the Government of India Act 1935 and were called Recruitment Rules of the Bombay Service of Engi neers Class 1 and Class II
 The rules appear at Item 53 is Section V of A endix C to the Bombay Civil Services Classification and Recruitment Rules under the heading Bombay Service of Engineers Rule 2 of the 1939 Rules laid down the method of re cruitment to the Bombay Service
of Engineers Class I by providing that such recruitment was to be made either a by nomination under the guarantee given to the College of Engineering Poona or b by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II
Rule 3 provided that as regards the recruitment from source a such number of appointments as may be fixed by the Government from time to
time would be made from amongst the students of the College of Engineer ing Poona who had passed the examination for the Degree of BE Civil in First Class
The candidates
so recruited by nomination were to be appointed in the first instance as Assistant Engineers on probation for two years and on completion of the probationary period they Were to be confirmed as Assistant Engineers
Rule 10 of the 1939 Rules prescribed the method of recruitment to the Bombay Service of Engineers Class II
It provided that recruitment of Class II service shall be made either a by nomination under rule 11 under the guar antee given to the College of Engineering Poona or b by promotion from any of the three prescribed sources
Those sources were 1  the Bombay Subordinate Engineering Serv ice  2  Permanent or temporary Supervisors and  3  Temporary Engineers appointed on annual sanction
Rule 11 provided that such number of appointments as may be fixed by the Government from time to time shall be made annually from amongst the students of the College of Engineering Poona who have passed the examination for the Degree of BE Civil
Every such candidate recruited by nomination was required by rule 14 to serve intially as a candidate for one year on the expiry of which period he would be appointed as a Deputy Engineer on probation for one year
On the satisfactory completion of the probationary period the candidate would be eligible for confirmation as a Deputy Engineer
784 The guarantee envisaged by rules 2a and 10a of the 1939 rules was given by the Government to the students of the College of Engineering Poona under a resolution dated July 12 1940
The guarantee operated in different measures until it was finally withdrawn by a resolution dated May 27 1947
The last batch of students who obtained the benefit of the guarantee were those that passed the examination for the Degree of BE Civil in 1949
By a resolution dated November 25 1950 the Government of Bombay appointed a Committee under the Chairmanship of Shri Gurjar to examine the question of future recruitment to Engineering Services Classes I and II
That Committee submitted its recommendations to the Government after prolonged deliberations but since the implementation of the recommendations had to be deferred the Government started making appointments to both classes of services by direct recruitment through the Public Service Commission
Such appointments were made from the year 1950
As stated earli er the cadre strength of Class I and Class II Services was fixed initially at 36 and 80 permanent posts respectively
But with the launching of new development projects the strength of both cadres had to be expanded from time to time by addition to the permanent posts
In fact for an early and effective achievement of the target it became necessary to make appointments of several temporary Execu tive Engineers and Deputy Engineers
On November 1 1956 there were 360 temporary posts of Deputy Engineers as against 200 permanent posts
By April 29 1960 these numbers had risen respectively to 600 and 400
One of the bones of contention between the parties is whether these temporary posts of Deputy Engineers were additions to Class II cadre even if temporary or whether the temporary posts were wholly outside the cadre of Class II Service
It is neces sary to mention at this stage that appointments as officiat ing Deputy Engineers to such temporary posts were made by promotion from amongst the members of the Bombay Subordinate Service of Engineers as also from amongst permanent and temporary Supervisors
But no direct appointments were made by the Government to these temporary posts of officiat ing Deputy Engineers
The direct appointments were made only to permanent posts because such appointees were prom ised confirmation after two years from the date of appoint ment during which period they were expected to complete their probation
On April 29 1960 the Government of Bombay in the Public Works Department passed a resolution embodying rules of recruitment to Bombay Service of Engineers Class I and Class II
These rules continued the existing division of Engineering Services into Class I and Class II and they provided that appointments to both classes of service should be made by nomination as well as by promotion
As regards appointments by nomination it was provided that they should be made through competitive examination held by the Public Service Commission and that for both the classes of service there should be a common examination
Candidates recruited directly were to be confirmed after two years in their respective cadres if otherwise found fit
The resolution of 1960 was signed by Under Secretary to the Government By order and in the name of the Governor of Bombay
 785 The rules regarding recruitment to Class I and Class II Engineering Service were set out in the Appendix to the 1960 Resolution
Rule 1 of those rules provided that appointments to both classes of services shall be made either by nomina tion after a competitive examination held by the Public Service Commission or by promotion from amongst the members of the lower cadres concerned provided however that the ratio of appointments by nomination and promotion shall as far as practicable be 75 25
By rule 2 candidates ap pointed to either of the services by nomination were to be on probation for two years
They were to serve in the first instance as Trainees for a period not exceeding one year and thereafter they were to be placed in a probationary capacity in charge of a sub division for a period of not less than one year
On the expiry of the aforesaid period of two years they were to be confirmed as Assistant Engi neers in Class I or as Deputy Engineers in Class II as the case may be if favourably reported upon by their superiors
Rule 2 further provided that Assistant Engineer would be confirmed as Executive Engineer after 9 years  service unless the period was extended by the Government
Under rule 3 candidates securing higher places in the competi tive examinations were to be appointed in Class I service according to the number of vacancies declared for such recruitment in that cadre while candidates securing the next higher places were to be offered appointments to Class II service
Rule 6 of the 1960 Rules read thus 6
i The number of posts to be filled in the Bombay Service of Engineers Class I by promotion of officers from the Bombay Service of Engineers Class II shall be about 25 per cent of the total number of superior posts in the Bombay Service of Engineers Class I cadre
This percentage should be aimed at for confirmations made after 1st November 1956 subject of course to Class II officers of the requisite fitness and length
of serv ice being available
ii For absorption into Class I a Class II officer must be in the permanent Bombay Service of Engineers Class II cadre should have at least 15 years  service to his credit in Class II in temporary and permanent capacities and should be holding an officiat ing divisional rank at the time of such absorption
On such absorption the Class II officer shall be confirmed as an Executive Engineer
iii The seniority of the Class II promo tees shall be fixed below the bunch of the Assistant Engineers any one of whom is duo for confirmation as Executive Engineer during the calendar year provided that an Class II promotee shall be placed senior to a direct recruit to Class I Assistant Engineer who has been officiating as Executive Engineer from a date earlier than the class II promo tee
In the latter ease the Class II promo tee though holding a post and lien as a confirmed Executive Engineer shall be 786 shown both under Permanent Executive Engineers and also along with the directly recruited Class I Assistant Engineers with a suitable remark under the permanent Executive Engi neers list
This is also subject to further conditions as in paragraph 7 below In spite of the provisions contained in rules 2 and 6 sufficient number of direct recruits to Class I service were not available which caused the apprehension that for the next few years it may not be possible to fill 75 of the superior posts from amongst direct recruits to Class I
In order to meet this
situation it was provided by rule 7 that as far as possible promotions as officiating Execu tive Engineers shall be so made that the promotee under consideration from Class II has to his credit at least 6 years  longer service than a promotee under consideration from Class I subject generally to the condition that a Class I officer shall not hold a divisional rank at less than 4 and a Class II officer at less than 7 years  serv ice
Clause iii of rule 7 emphasised that if any promo tions were made from Class
II to Class I service to the confirmed posts of Executive Engineers beyond the quota available to Class II service personnel there would have to be a consequent reduction in the promotion of Class II employees to Class I appointments in the following years in order to work up the overall percentage of 7525
Clause iv of rule 7 provided that if any confirmation is made from the bunch of temporary Executive Engineers
who had no lien on any cadre such confirmation shah be counted against the quota of 25 which was meant for the non direct recruits to Class I service
Since the challenge to the vires of rule 8iii has occupied the best part of the arguments and since the High Court of Bombay and Gujarat have differed on that question it would be necessary to set out the whole of rule 8
i 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 lists only viz Bombay Service of Engineers Class 11 cadre of permanent Deputy Engineers and a list of officiating Deputy Engineers
The future recruitment 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 promotion from the list of officiating Deputy Engineers
The number of such promotions shall be about one third the number of direct recruits appointed in that year
ii All direct recruitment of temporary Deputy Engineers having been stopped further officiating vacancies will be 787 manned from the ranks of the subordinate Service of Engineers
For this purpose a State wide Select Seniority list will be maintained of members of the Subordinate Service of Engineers cadre considered fit to hold sub divisional charges
The list shall be compiled as on 30th June each year
For inclusion in this list a graduate shall have to his credit not less than 3 a Diploma holder not less than 8 and a non qualified person not less than 13 years  service as Overseer
For confirmation as a Deputy Engineer the officer would be expected to have put in not less than 3 years  service as officiating Deputy Engineer
iii
The probationers recruited directly to the Bombay Service of Engineers Class II cadre in any year shall in a bunch be placed senior to promotees confirmed during that year The Rules of 1960 were made by the Government of Bombay on April 29 1960 and within two days thereafter that is on May 1 1960 State of Bombay was bifurcated into the States of Maharashtra and Gujarat
With a view to avoiding any administrative difficulty the Government of Gujarat passed a resolution on May 1 1960 providing that all rules regulations circulars etc
prevailing in the former State of Bombay will continue to operate in the new State of Gujarat until changed or modified by that Government
The Rules of 1960 were amended by the Government of Gujarat by a notification dated August 21 1965 issued in the exer cise of powers conferred by the proviso to article 309 of the Constitution
By that notification the Government of Gujarat introduced a new clause clause 10 in the Rules of 1960 providing that candidates selected through the competi tive examination and appointed to posts in the Gujarat Service of Engineers Class I and Class II shall if so required be liable to serve in any Defence Service or post connected with the defence of India provided that such a candidate shall not be required to serve as aforesaid after the expiry of ten years from the date of his appointment or after attaining the age of 40 years
The terms of this Gujarat amendment are not the subject of controversy but it became necessary to refer to the amendment since it is argued that even if the Rules of 1960 being in the nature of executive instructions did not have statutory force those rules acquired a statutory character by being recognised and amended by the notification of August 21 1965 which was issued under the proviso to art 309 of the Constitution
On the bifurcation of the State of Bombay 181 permanent and 220 temporary posts of Deputy Engineers were allocated to the state of Gujarat
In practice however 99 permanent posts of Deputy Engineers were vacant in the State of Guja rat against which confirmation had to be made by that Gov ernment
Some of the Deputy Engineers who were promoted to those posts from lower ranks were also allocated to the Stare of Gujarat and several of them having 788 completed three years  qualifying service had become eligi ble for confirmation under rule 8ii of the 1960 Rules
But they were denied confirmation in spite of their long service and in spite of the existence of clear vacancies in substantive posts of Deputy Engineers
Since the quantum of pension also depended in those days on the average substan tive pay the denial of confirmations to the promotee Deputy Engineers led to great dissatisfaction amongst them
Some who had officiated in those appointments for several years had to retire without being confirmed
On March 28 1961 the Government of Gujarat passed an order provisionally confirming 37 officiating Deputy Engineers with effect from May 1 1960
On August 7 1968 it confirmed another batch of 26 officiating Deputy Engineers with retrospective effect from May 1 1960 and directed that the order of provisional confirmation dated March 28 1961 shall be treated as final
In so far as the Gujarat appeals are concerned there are no further rules or resolutions to be considered
But the Government of Maharashtra issued two
resolutions after the bifurcation of the State of Bombay
On July 29 1963 it passed a resolution laying down principles of seniority and on December 19 1970 it passed a resolution superseding the resolution passed by the Government of Bombay on April 29 1960
Rule 33 of the 1970 rules provides Seniority 33
There shall be two parts of the seniority list in each cadre in Class I and Class 11 viz Part A of confirmed officers and Part B of those who are not confirmed
a In Part A the names shall be arranged with reference to the year of confirmation
b The confirmed officers shall be treated as senior to the unconfirmed Officers in the respective cadre
c In Part B of the seniority list of any cadre the names shall be arranged with refer ence to the date of continuous officiation except where a promotion in an officiating capacity was by way of purely temporary or local arrangement
 In Gujarat there are no resolutions corresponding to those of 1963 and 1970 issued by the Maharashtra Government
Civil Appeal No 1113 of 1974 by the promotees arises court of the judgment dated January 17 1974 of the Bombay High Court dismissing SpeCial Civil Application No 815 of 1972 filed by them against the State and the direct re cruits
Four Special Civil Applications were filed in the Gujarat High Court which were disposed of by it by a common judgment dated July14 1973
SC As
1099 of 1969
422 of1970 and 957 of 1970 were filed by the direct recruits while SCA No 1480 of 1971 was filed by the promotees  The promotees failed in the Bombay High Court but succeeded in the Gujarat High Court
Both the High Courts have granted certificates of fitness for filing appeals in tiffs Court
789 Before us Mr KK Singhvi and Mr RK Garg appeared for the promotees while Mr MV Paranjpe and Mr MK Ramamurti appeared for the direct recruits
Mr MC Bhandare appeared for the State of Maharashtra and Mr DV Patel for the State of Gujarat
Mr Patel took a non contentious attitude which highlights how difficult it was for the State counsel to support any particular cause in view of the shifting stand taken up by both the State Gov ernments from time to time
Several points were raised before us and a large number of decisions were cited in support thereof but the main question for decision in these appeals is whether departmen tal promotees and direct recruits appointed as Deputy Engi neers in the Engineering Services of the Governments of Maharashtra and Gujarat belong to the same class so that they must be treated with an even hand or whether they belong to different classes or categories and can justifia bly be treated unequally
Concededly they are being treated unequally in the matter of seniority because whereas promo tees rank for seniority from the date of their confirmation the seniority of direct recruits is reckoned from the date of their initial appointment
The disparity is indeed so glaring that though direct recruits have to successfully complete a two years  probationary period before confirma tion even that period is not excluded while counting their seniority
A promotee ranks below the direct recruit even if he has officiated continuously as Deputy Engineer for years before the appointment of the direct recruit is made and even if he the promotee could have been confirmed in an available substantive vacancy before the appointment of the direct recruit
Learned counsel for the direct recruits have stoutly defended the preferential treatment accorded to them by contending inter alia that since the promotees do
not belong to Class II service until they are confirmed they have no fight to
rank for seniority along with the direct recruits who enter that class or cadre on the very date of their initial appointment
The fact that the Government did not confirm a particular promotee even though a substan tive vacancy was available in which he could have been confirmed cannot according to the direct recruits make any difference to that position
For facilitating a proper understanding of this problem it is necessary to take bird s eye view of the various rules and resolutions which were passed by the two State Govern ments most of which we have already noticed
In this be half attention has to be called particularly to 1 The rules framed by the Government of Bombay on September 21 1939 under section 241 2bof the Government of India Act 1935 2 The rules framed by the Government of Bombay on November 21 1941 regarding fixation of seniority 3 The letter dated January 11 1949 written by the Chief Secra tary Government of Bombay to the Honorary Secretary Bombay Civil Service Association 4 The Resolution of the Government Of Bombay dated April 29 1960 containing Rules regarding recruitment of Class I and Class II Engineering Services and regarding fixation of seniority 5 The 790 Resolution of the Government of Maharashtra dated July 29 1963 laying down principles of seniority 6 The Notifi cation dated August 21 1965 issued by the Government of Gujarat under the proviso to
article 309 of the Constitu tion introducing clause 10 in the Rules of 1960 7 The Resolution of the Government of Maharashtra dated December 19 1970 superseding the Resolution of April 29 1950 and framing new rules of seniority and 8 The Circulars dated January 12 1961 March 15 1963 and October 18 1968 issued by the Government of Maharashtra converting a cer tain number of temporary posts into permanent posts from time to time
It is common ground that except the Bombay Rules dated September 21 1939 and the Gujarat Notification dated August 21 1965 the rest of the rules are in the nature of execu tive instructions
The Rules of 1941 1960 1963 1965 and 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power
The Rules of 1960 and 1970 were issued By order and in the name of the Governor but that does not lend support to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have been made under article 309 of the Constitution
All execu tive action of the Government of a Stale is required by article 166 of the Constitution to be taken in the name of the Governor
The appeals have therefore to be disposed of on the basis that except for the Bombay rules dated September 21 1939 and the Gujarat Notification dated August 21 1965 the remaining rules whether of recruitment or of seniority are in the nature of executive instructions
These in structions unlike rules regulating recruitment and condi tions of service framed under the proviso to article 309 of the Constitution or section 2412b of the Government of India Act 1936 cannot have any retrospective effect
The 1939 rules called Recruitment Rules of the Bombay Service of Engineers Class I and Class II have constitu tional authority but being rules made to regulate the methods of recruitment they afford no assistance in finding a solution to the rival claims to seniority laid by the promotees and direct recruits
The rules neither fix a quota for recruitment from the two avenues nor do they provide in any other manner a guideline for fixation of seniority as between appointees recruited from different sources
Rule 10 on which the promotees rely as affording to them a guarantee in the matter of promotion is also beside the point because the crux of their grievance is not that they are denied opportunities of promotion but that they are discriminated against in the matter of seniority in comparison with the direct recruits
By its resolution dated November 21 1941 the Government of Bombay Political and services Department directed that in the case of direct recruits appointed substantively on probation the seniority should be determined with reference to the date of appointment on probation while in the case of officers promoted to substantive vacancies the seniority should be determined with reference to the date of their promotion to the substantive vacancies pro vided there has been no break in their service prior to their confirmation in those vacancies
This Reso lution expressly 791 governed the seniority of direct recruits and promoted officers in all provincial services except the Bombay Serv ice of Engineers Class I Since Deputy Engineers do not belong to Class I Service their seniority was governed by the Resolution
The wording of the Resolution leaves no doubt that the Government of Bombay applied two different standards for fixing inter se seniority of direct recruits and promotees appointed as Deputy Engineers
The former were entitled to reckon their seniority with effect from the date of their initial appointment on probation while the seniority of the latter had to be determined with reference to the date of their promotion to substantive vacancies subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies
Thus for purposes of seniority the promo tees had to depend firstly on the availability of substan tive vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies
The fact that a substantive vacancy had arisen and was available did not proprio vigore confer any right on the promotee to be confirmed in that vacancy
The 1941 Rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleasure of the Government for orders of confirmation
In the pre Consti tution era such hostile treatment had to be suffered si lently as a necessary incident of government service
It is curious that though the 1941 rules expressly recite that the principles contained therein should be observed in determining the seniority of direct recruits and promoted officers in the provincial Services except the Class I Bombay Service of Engineers Shri LM Ajgaonkar Deputy Secretary to the Government of Maharashtra says in his affidavit dated July 25 1973 that in practice the Rules of 1941 were never applied to Class II officers in the Engineering Service and that their seniority used to be determined by the same rules by which the seniority of Class I officers was determined
It is difficult to accept this bare statement which is not even supported by a proper verification
Shri Ajgaonkar s affidavit contains an omni bus and rolled up clause of verification at the end which detracts from the weight of his assertion
Turning next to the letter dated January 11 1949 writ ten by the Chief Secretary Government of Bombay to the Honorary Secretary Bombay Civil Service Association we find it difficult to uphold the claim of the _promotees that the Rules of 1941 were modified by that letter
The letter was written in answer to the representation dated July 28 1948 made by the Bombay Civil Service Association to the Government of Bombay regarding emergency recruitment to the Indian Administrative service and other matters
Paragraph 2 of the letter says that promotees can have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collectors vis a vis a promoted officer is determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941 ie with reference to the date of first appointment on probation in the case of direct recruits and of continious officiation in the ease of pro moted officers
In the first place 792 this part of the letter on which the promotees rely deals expressly and exclusively with the case of Deputy Collectors which makes it difficult without any further data to extend the benefit of what is said therein to Deputy Engi neers working in an entirely different branch of govern ment service
The Chief Secretary s letter is a reply to the Association s letter which the promotees did not pro duce
The Association had addressed its letter not to the Ministry which handled problems of Engineering Services but to the Ministry of Home and Revenue the latter of which was concerned to consider the grievance of Deputy Collectors
Lastly the opening sentence of paragraph 2 of the Chief Secretary s reply shows that he was referring to a class of service in which a quota system was then operating
Admit tedly the quota system properly so called did not apply either under the 1939 or under the 1941 rules to Engineering Services
The Chief Secretary s reply cannot therefore improve the promotees  case
But we disapprove that instead of explaining the circumstances in which the reply was sent the State Government should merely say through Shri Ajgaon kar s affidavit that it craves leave to refer to the reply for its true effect
The Government could surely have produced the letter of the Association which would have set this part of the controversy at rest
That takes us to the 1960 Rules which are the meat of the matter
We have already extracted rules 6 and 8 fully but it will be necessary to recapitulate briefly the scheme of the 1960 rules
Under these rules theratio of ap pointment by nomination and promotion of both Class I and Class II Engineering Services was fixed as far as practica ble at 75 25
Candidates appointed by nomination ie direct recruits were to be on probation for two years out of which normally one year was to be spent on training
On satisfactory completion of probation the direct recruits were to be confirmed as Assistant Engineers in Class I or as Deputy Engineers in Class II as the case may be
For ab sorption in Class I a Class II officer had to be in the permanent Bombay Service of Engineers Class II cadre
He was further required to have at least 15 years  service to his credit in Class II in temporary and permanent capaci ties
In addition to these qualifications he has to be holding at the time of his absorption in Class 1 an offi ciating divisional rank
On such absorption the Class II officer was to be confirmed as an Executive Engineer
The Rules of 1960 show that the seniority of Class II promotees was to be fixed below the bunch of Assistant Engineers any one of whom was due for confirmation as an Executive Engi neer during the calendar year
But no Class II promotee could be placed above a direct recruit recruited to Class I who was officiating as Executive Engineer from a date earlier than the Class II promotee Rule 81 says that the various categories which manned the Class I sub divisional posts were being compiled into
two lists i One list of Bombay Service of Engineers Class 1I cadre of permanent Deputy Engineers and ii the other list of officiating Deputy Engineers
The future recruit ment to Class II cadre was to be made by a nomination of candidates recruited directly by competitive examination and b promotion from the list of officiating Deputy Engineers 793 in the ratio of 23rd and 13rd respectively
After recit ing that direct recruitment of temporary Deputy Engineers was stopped rule 8ii provides that further officiating vacancies would be manned from the ranks of the Subordi nate Service of Engineers
For this purpose a statewise Select Seniority List was to be maintained of members to the Subordinate Service of Engineers considered fit to hold subdivisional charge
For inclusion in this list graduates diploma holders and non qualified persons had to have to their credit Service of not less than 3 8 and 13 years respectively
For confirmation as a Deputy Engineer the officer was expected to have put in not less than three years  service as officiating Deputy Engineer
Then comes the much debated clause iii of rule 8 iii The probationers recruited directly to the Bombay Service of Engineers Class II cadre in any year shall in a bunch be placed senior to promotees con firmed during that year
It is patent that this clause is highly discriminatory against promotees and accords a preferential treatment to direct recruits
Its principal justification is said to be that persons who are promoted as officiating Deputy Engi neers do not belong to Class II cadre so long as they are not confirmed as Deputy Engineers whereas direct recruits appointed on probation as Deputy Engineers enter that class or cadre on the very date of their appointment since on satisfactory completion of probation confirmation is gua ranteed to them
This contention needs careful examination
There is no universal rule either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both  That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a cadre arises
For example in Bishan Sarup Gupta vs Union of India1 the cadre of Income Tax officers Class I Grade II was held by this Court to consist of both permanent and temporary pests
Similarly in AK Subraman vs Union of India 2 while holding that the cadre of Executive Engi neers in Class I Central Engineering Service consisted both of permanent and temporary posts it was pointed out by this Court that a cadre may consist of permanent posts only or sometimes as is quite common these days also of temporary posts
Counsel for direct recruits relied upon a decision of this Court in Ganga Ram  Others vs Union of India3 for showing that a cadre cannot consist of temporary posts but that decision rested on the finding arising out of the rules contained in the Indian Railway Establishment Manual that direct recruits and promotees constitute different classes
The question which we have to consider at this stage is not whether direct recruits and promotees appointed as Deputy Engineers in the Bombay and Gujarat service of Engineers belong to different classes but Whether officiat ing Deputy Engineers belong to class II cadre at all
1  2 1975 2 SCR 979 3  794 On the state of the record in the Bombay and Gujarat appeals such as it is we find it difficult to hold that officiating Deputy Engineers do not belong to Class 1I cadre of the Bombay and Gujarat Service of Engineers
In the Maharashtra writ petition 815 of 1972 as many as four affidavits were filed on behalf of the State Government by Shri LM Ajgaonkar
These are dated July 25 December 17 December 21 1973 and January 17 1974
The question whether officiating Deputy Engineers belong to Class II cadre was of the essence of the dispute in the High Court and was squarely raised by the promotees
Yet in none of the affidavits did the State Government say that they did not belong to Class II cadre
The last affidavit dated January 17 1974 was filed after the High Court had dictated its judgment in open Court for three days and even then the affidavit is significantly silent on the question
The only explanation of this can be that according to the State Government officiating Deputy Engineers belong to Class II cadre
The resolution dated November 8 1962 issued by the Government of Maharashtra
Buildings and Communications Department shows unmistakably that even temporary posts of Deputy Engineers were treated as temporary additions to Class II cadre
An additional Division with four subdivi sions was sanctioned by that resolution for construction of a section of National Highway No 8
Temporary posts had therefore to be created for that project for a period of one year
The resolution says that The posts of Executive Engineers and Deputy Engineers should be treated as tempo rary additions to their respective cadres In so far as the Gujarat appeals are concerned Shri NS Nagrani Under Secretary to the Government of Gujarat PWD filed an affidavit dated April 28 1970 in one of the writ petitions 422 of 1970
He says in that affidavit that temporary posts are to be treated as temporary additions to the respective cadres of BSE Class I and Class II that permanent posts are not created anew but come into existence by the conversion of the existing tempo rary posts into permanent posts and that both the tempo rary posts and permanent posts are two categories of posts belonging to the same cadre
To the similar effect is the affidavit dated June 22 1970 made in another writ petition 1099 of1969 by Shri AR Bhatt Under Secretary to the Government of Gujarat PWD He says therein that there are no separate categories of permanent and temporary posts of Deputy Engineers
Temporary post of Deputy Engineers are treated as temporary additions to the GSE Class II cadre
 Pleading on behalf of the Gujarat Government Shri Bhatt stoutly resisted the claim of direct recruits that they had prior claim for consideration for promotion to the posts of Executive Engineers on the ground that they belong to the Class II cadre while the officiating Deputy Engineers do not
We cannot ignore these sworn assertions made solemnly by officers of the Maharashtra and Gujarat Governments
The fact that the permanent strength of the
cadre was deter mined on the basis of permanent posts at any given time as for example when the Bombay 795 Government passed resolutions on March 22 1937 and April 13 1945 cannot detract from the position that even tempo rary posts of Deputy Engineers were treated as additions though temporary to Class II cadre
The government offi cers who swore the affidavits knew of these resolutions and yet they were instructed to state a position Which they contended for more then once that officiating Deputy Engineers belonged to Class II cadre
The learned counsel for the direct recruits laid great emphasis on the lists referred to in clauses i and ii o rule 8 for showing that officiating Deputy Engineers do not belong to Class 11 cadre of Engineering Service
This contention has to be rejected since the point is concluded by a decision of this Court in PY Joshi vs State of Maharashtra
1 It was contended in that case on behalf of direct recruits that officiating Deputy Engineers could only be considered as promoted to the grade of Deputy Engi neers on confirmation and therefore the 7 years  qualifying service which they had to put in before being promoted as officiating Executive Engineers must be reckoned from the  date of their confirmation as Deputy Engineers in support of this contention reliance was placed in that case on clause ii of rule 8 and it was argued that no person could be promoted as a Deputy Engineer unless he was first put in the list of officiating Deputy Engineers
This argument was squarely dealt with and repelled by this Court by hold ing that the list referred to in clause ii of rule 8 is the same list which is referred to in the latter part of clause i of that rule which speaks of future recruitment
Consequently a promoted officiating Deputy Engineer who belonged to Class II cadre was held entitled to be considered for promotion under rule 7 to the post of officiating Executive Engineer if he had put in 7 years  qualifying service
The eligiblity for promotion did not require that the officiating Deputy Engineer must have put in 7 years  service after the date of his confirmation
It must necessarily follow that promotion which the latter part of rule 8i relating to future recruitment speaks of means promotion as an officiating Deputy Engineer from the Select List prepared under clause ii of rule 8
A person thus promoted from the Select List as an officiat ing Deputy Engineer is as full and complete a member of the Class II cadre as a person directly appointed as a Deputy Engineer
In tiffs view of the matter the prescription contained in the closing sentence of rule 8i that the number of such promotions shall be about 13rd the number of direct recruits appointed in that year would apply to initial appointments and cannot govern the confirmation of those who have already been appointed to Class II cadre
In other words direct recruits and promotees have to
be appointed in the proportion of 75 25 to Class II cadre the former as Deputy Engineers and the latter as officiating Deputy Engineers but once that is done the quota rule would cease to apply with the result that confirmations in the posts of Deputy Engineers are not required to be made in the proportion in which the initial appointments had 1 796 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 promo tee can be confirmed as Deputy Engineer
In A K Subraman supra it was held by this Court while interpreting rules relating to Central Engineering Service Class I that though in cases where recruitment is made from different sources the quota system can be validly applied the quota rule was to be enforced at the time of initial recruitment to the posts of officiating Executive Engineers and not at the time of their confirmation
The Court further observed that there was a well recognised distinction between promotion and confirmation and that the tests to be applied for the purposes of promotion are entirely different from those that had to be applied at the time of confirmation
If officiating Deputy Engineers belong to Class II cadre as much as direct recruits do and if the quota system cannot operate upon their respective confirmation in that cadre is there any valid basis for applying different standards to the members of the two group for determining their seniori ty Though drawn from two different sources the direct recruits and promotees constitute in the instant case a single integrated cadre
They discharge identical functions bear similar responsibilities and acquire an equal amount of experience in their respective assignments
And yet clause iii of rule 8 provides that probationers recruited during any year shall in a bunch be treated as senior to promo tees confirmed in that year
The plain arithmetic of this formula is that a direct recruit appointed on probation say in 1966 is to be regarded as senior to a promotee who was appointed as an officiating Deputy Engineer say in 1956 but was confirmed in 1966 after continuous officiation till then
This formula gives to the direct recruit even the benefit of his one year s period of training and another year s period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience
If there was some intelligible ground for this differentiation bearing nexus with efficiency in public services if might perhaps have been possible to sustain such a classification
It is interesting that time and again the State Governments themselves found it difficult to justify the hostile treatment accorded to the promotees
In various affidavits filed on their behalf entirely contra dictory contentions were taken sometimes in favour of the promotees and sometimes in favour of direct recruits
In stead of adopting an intelligible differentia rule 8 iii leaves seniority to be determined on the sole touchstone of confirmation which Seems to us indefensible
Confirmation is one of the inglorious uncertainities of government serv ice depending neither on efficiency
of the incumbent nor on the availability of substantive vacancies
A glaring in stance widely known in a part of our country is of a distin guished member of the judiciary who was confirmed as a District Judge years after he was confirmed as a Judge of the High Court
It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed
It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government
797 There is no substance in the plea that direct recruits must be given weightage on the ground that the engineering services require the infusion of new blood since it is a highly specialised service
Were it so the Government would not have itself reduced the proportional representa tion gradually so as to tilt the scales in favour of promo tees
Besides the plea that engineering service is a spe cialised service is made not by the Government but by direct recruits who obviously are interested in so contending
Nor indeed is the apprehension justified that the higher echelons of engineering services will in course of time be manned predominantly by promotees
Those recruited directly as Assistant Engineers in Class I can under the rules officiate as Executive Engineers after 4 years  service and are eligible for confirmation as Executive Engineers after a total service of 9 years
Promotees can hardly ever match with that class in terms of seniority
Learned counsel for direct recruits relied on the deci sion of this Court in BS Gupta vs Union of India1 where it was observed that when recruitment is made from several sources it may be necessary in the public interest to depart from the normal rule of seniority and to provide that dates other than the dates of appointment will determine inter se seniority of officers
These observations have to be understood in the context which the Court itself clari fied by saying that the problem before it was not of dis crimination in the matter of promotion from an integrated service constituted from two sources but the problem was of integrating two sources in one service by adjusting inter se seniority p 115
Besides the rule of seniority pre scribed in that case was not shown to suffer from the in firmity from which rule 8 iii suffers
Reliance was also placed by the direct recruits on another decision of this Court in VB Badami vs State of Mysore2 in which it was held that in cases where rules prescribe a quota between direct recruits and promotees confirmations for substantive appointments can only be made in clear vacancies occurring in the permanent strength of the cadre and that confirmed persons have to be treated as senior to those who are officiating
This decision is distinguishable because it is based on the consideration that rule 9 of the Probation Rules of 1957 provided for confirmation of a probationer as a full member of the serv ice in any substantive vacancy in the permanent cadre and that rule established the exclusion of temporary posts from the cadre p822
Since the cadre consisted of permanent posts only confirmation in permanent posts necessarily determined the inter se seniority of officers
Rule 8ii in the instant case adopts the seniority cum merit test for preparing the statewise Select List of seniority
And yet clause iii rejects the test of merit altogether
The vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirmation
That under articles 14 and 16 of the Constitution is impermissible and therefore wemust strike down rule giii as being unconstitutional
1  2 19761 SCR 815 798 On July 29 1963 the Government of Maharashtra in its General Administration Department passed a resolution super seding the rules of November 21 1941 and framing new rules for determining the inter se seniority of direct recruits and promotees
Paragraph A of the 1963 resolution provides that the seniority of direct recruits and promoted officers should be determined according to the date of appointment on probation in the case of direct recruits and according to the date of promotion to officiate continuously in the case of those appointed by promotion irrespective of whether the appointments are made in temporary or in permanent vacan cies
Paragraph B of the resolution says that a list of services in respect of which special orders for fixation of seniority are in force and to which the resolution will not apply would be issued in due course
It is contended on behalf of the Maharashtra promotees that the rules of 1963 superseded the 1960 rules by neces sary implication and therefore the State Government had no power or authority to apply the criterion of seniority fixed under the 1960 rules after their repeal by the 1963 rules
This contention has not only the merit of plausibility but is apparently supported by an observation in P Y Joshi supra case
We are however satisfied that the Bombay High Court was right in rejecting the contention
The quota system was the very essence of 1960 rules and if it was desired to abrogate that system it is unlikely that the 1963 rules will not even refer to those of 1960
The rules of 1941 having been expressly superseded by the 1963 rules it is difficult to accept that along with the 1941 rules the resolution of 1963 would not have referred to the 1960 rules also
Secondly the resolution dated December 19 1970 of the Government of Maharashtra expressly superseded the 1960 rules which shows that the latter were in force until 1970 and were not superseded by the 1963 rules
In fact the resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter was not applicable to engineering services
It is true that in PY Joshi s case supra it was observed that the 1963 rules repealed those of 1960 but that is a mere passing observa tion
The question in regard to such repeal did not arise for decision in that case and it appears that no argument whatsoever was addressed to the Court on this question
None of the considerations mentioned by us were placed before the Court in that case
We therefore agree with the High Court that the 1960 rules were not superseded by those of 1963
We have already indicated that in Gujarat there is no resolution corresponding to that of 1963
In the Gujarat writ petitions it was argued that the 1960 rules though originally in the nature of executive instructions acquired a statutory force and character by reason of their amendment by the rules of 1965 which were made by the Governor of Gujarat in exercise of the power under the proviso to article 309 of the Constitution
This argument was rightly rejected by the High Court because all that was done by the rules of 1965 was to introduce a new rule rule 10 in the 1960 rules
The rules of 1960 were neither reiterated nor re enacted by the rules of 1965 and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule making authority had applied its mind to be rules of 1960 with a view to 799 adopting them
In Bachan Singh vs Union of India1 on which the direct recruits rely the amendment made vital changes in the main fabric of the original rules which led this Court to the conclusion that the original rules became statutory rules by incorporation
This question is not relevant in the Maharashtra appeal since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat
The challenge to rule 33 of the rules dated December 19 1970 framed by the Government of Maharashtra is based on grounds identical with those on which the validity of rule 8iii of the 1960 rules was assailed
The rules of 1970 which supersede the rules of 1960 were framed in order i to alter the ratio between direct recruits and promotees which was causing hardship to promotees ii to correct the manifest error resulting from the fact that A large number of temporarily promoted officers both in Class I and Class II could not be confirmed in spite of permanent vacan cies being available and iii to ensure the efficiency of the engineering services as a whole
Rule 6 provides briefly that officers who are confirmed in or who have a lien on a post will be members of the Maharashtra Service of Engineers Class I or Class II as the case may be Those who do not have such a lien and who may be officiating in any one of the cadres of Class I or Class II will be treated as temporary members of their respective cadres
Rules 7 to 11 deal with direct appointments to the posts of Assistant Engineers Class I and Assistant Engineers Class II
By rule 11 such appointees are to be confirmed after a training of one year and a further probation for a period of not less than one year in their respective cadres
Rules 12 to 23 deal with appointments by promotion to Class 11 service
Rule 12a as amended by the Government resolution dated January 20 1972 provides that the cadre of Deputy Engineers will consist of i all officers confirmed upto the date of commencement of the rules as Deputy Engineers whether actually working in or only having a lien on the posts ii all direct recruits who have been appointed upto the date of commencement of the rules on probation against permanent posts of Deputy Engineers iii all officers who were offi ciating as Deputy Engineers on 30th April 1960 provided their promotions prior to 30th April 1960 are not deemed to be fortuitous and iv those who were not promoted prior to 30th April 1960 but who have been included in the Select Lists for the period prior to 30th April 1900 of Overseers fit to be Deputy Engineers
RuIe 12c fixes the ratio between direct recruits and promotees at 34 66 instead of 75 25 as under the 1960 rules
Rule 33 called Seniority which we have extracted already provides that there shall be two parts of the seniority list in each cadre in Class I and Class Ii part A of confirmed officers and part B of those who are not confirmed
In part A the names are to be arranged with reference to the year of confirmation
Con firmed officers are to be treated as senior to the uncon firmed officers in the respective cadres
In part B the names are to be arranged with reference to the date of continuous officiation except where promotion in an offici ating capacity is by way of a purely temporary or local arrangement
1  800 Rule 33 in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation is open to the same objection as rule 8iii of the 1960 rules and must be struck down for identical reasons
The circulars dated January 12 1961 March 15 1963 and October 18 1969 which the promotees want to be enforced are issued by the Finance Department and being in the nature of inter departmental communications they cannot confer any right on the promotees
The Bombay High Court was therefore right in not accepting this part of the promo tees  case
We also agree with the view taken by the High Courts of Bombay and Gujarat for the reasons mentioned by them that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act 11 of 1960
The proviso to section 81 6 of that Act says that the condi tions of service applicable to any person allotted to the States of Maharashtra or Gujarat shall not be varied to his disadvantage except with the previous approval of the Cen tral Government
Neither the rules of 1960 and much less the rules of 1970 alter the conditions of service of Deputy Engineers to their disadvantage within the meaning of the proviso
We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy all conflicting claims
But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitu tion
The rules framed by the State Governments were con stitutionally so vulnerable that the administration was compelled to adopt inconsistent postures from time to time leaving the employees no option save to resort to courts for vindication of their rights
In this process courts high and low had to discharge functions which are best left to the expertise of the appropriate departments of the Govern ment
Having struck down certain rules we do not want to take upon ourselves the task of framing rules of seniority
That is not the function of this Court and frankly it lacks the expertise and the data to do so
We how
ever hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct re cruits and promotees
All other factors being equal con tinuous officiation in a non fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources so long as they belong to the same cadre discharge similar functions and bear similar responsibilities
Saying anything beyond this will be trespassing on a field which does not belong to the courts
We would like to clarify that the list of seniority for the period till November 1 1956 prepared by the Maharash tra Government by its resolution dated April 10 1970 has been approved by the Government of India
That list would therefore govern the seniority of direct recruits and promo tees as on November 1 1956
Secondly it seems to us difficult to uphold the direction given by the Gujarat High Court that interim promotions made during the pendency of writ petitions should not be disturbed until the expiration of one month from the date of the seniority as finally fixed by the Government and intimated to the con 801 cerned parties
Interim promotions which do not comply with the constitutional requirements and which under the judgment of the Gujarat High Court are bad cannot be permitted to stand
We accordingly set aside that direction
These then are our reasons in support of the order which we passed on January 31 1977
That order reads thus Civil Appeal No 1113 of 1974 is filed by the promo tees and it arises out of special Civil Application No 815 of 1972 filed by them in the Bombay High Court
We set aside the judgment of the High Court and allow the appeal
Civil Appeal No 286 of 1974 is filed by direct re cruits and it arises out of Special Civil Application No 1099 of 1969 filed by them in the High Court of Gujarat
We confirm the judgment of the High Court and dismiss the appeal
Civil Appeal No 287 of 1974 is filed by direct re cruits and it arises out of Special Civil Application No 422 of 1970 filed by them in the High Court of Gujarat
We confirm the judgment of the High Court and dismiss the appeal
Civil Appeal No 242 of 1974 and Civil Appeal No 285 of 1974 are cross appeals
Both of these appeals arise out of Special Civil Application No 1418 of 1971 which was field by the promotees in the High Court of Gujarat
Civil Appeal No 242 of 1974 is filed by the promotees in this Court challenging the decision of the Gujarat High Court to the extent to which they failed
Civil Appeal No 285 of 1974 is filed by the direct recruits challenging the afore said decision to the extent to which the High Court allowed the reliefs claimed by the promotees
We allow Civil Appeal No 242 of 1974 partly and dismiss Civil Appeal No 285 of 1974
The reasons in support of the conclusions to which we have come in these appeals will be given later
The extent to which the appeals are allowed or dismissed will become clear from those reasons


Summary:
In exercise of the power conferred by section 2412b of the Government of India Act 1935 the Governor of Bombay framed rules called Recruitment Rules of the Bombay Service of Engineers Class I and Class II 1939 Rule 2 laid down the method of recruitment to Class I of the Service by direct recruitment and by promotion from the existing Bombay Service of Engineers or from the Bombay Service of Engineers Class II
Rule 10 provided that recruitment to Class II service shall be either by direct recruitment or by promo tion from i the Bombay Subordinate Engineering Service ii permanent or temporary supervisors and iii tempo rary engineers
In 1941 the Government of
Bombay passed a resolution directing that in the case of direct recruits appointed substantively on probation seniority should be determined with reference to the date of appointment on probation while in the case of officers promoted to substantive vacan cies seniority should be determined with reference to the date of their promotion to the substantive vacancies provid ed there had been no break in their service prior to their confirmation in these vacancies
In 1949 the Chief Secretary to the Government of Bombay in reply to a representation made by the Bombay Civil Service Association regarding emergency recruitment to the IAS and other matters stated that promotees could have no grievance in the matter of seniority since the seniority of a direct recruit to the cadre of Deputy Collector vis a vis a promoted officer was determined not according to the date of confirmation but according to the principles laid down in the Rules of 1941 ie with refer ence to the date of first appointment on probation in the case of direct recruits and of continuous officiation in the case of promoted officers
In April 1960 a resolution embodying the rules of recruitment to Bombay Service of Engineers Class I and Class II was passed by the Government and signed by the Under Secretary to the Government by order and in the name of the Governor of Bombay
They provided for direct recruitment through common competitive examination conducted by the State Public Service Commission for both classes of service as well as by promotion
Direct recruits were to be con firmed after two
years in their respective cadets
The rules also provided that the ratio of appointments by nomi nation and promotion to both classes shall as far as prac ticable be 7525
Rule 8i says that the various catego ries which manned the Class II sub divisional posts were being compiled into two lists i of Bombay Service of Engineers Class 11 cadre of permanent Deputy Engineers and ii of officiating Deputy Engineers
The future recruit ment to Class II cadre was to be made by a nomination of candidates recruited directly by competitive examination and b promotion from the list of officiating Deputy Engineers in the ratio of 2 1
Rule 8ii provides that further officiating vacancies would be manned from the ranks of the Subordinate Service of Engineers
For this purpose of state wise Select Seniority List was to be maintained of members of the Subordinate Service of Engineers considered fit to hold sub divisional charge
For inclusion in this list graduates
diploma holders and non qualified persons had to have to their credit service of not less than 3 8 and 13 years respectively
For confirmation as a Deputy 776 Engineer the officer was expected to have put in not less than three years  service as officiating Deputy Engineer
Rule 8iii provides that the probationers recruited di rectly to the Bombay Service of Engineers Class II cadre in any year shall in a bunch be placed senior to promotees confirmed during that year
On July 29 1963 the Government of Maharashtra passed a resolution superseding the 1941 rules and framing new rules for determining inter se seniority of direct recruits and promotees
On December 19 1970 the State Government passed a resolution superseding the resolution of 1960
Rule 33 of the 1970 rules provides that the seniority list in respect of each of Class I and Class II shall consist of Part A confirmed officers and Part B not confirmed officers that Part A shall be arranged with reference to the year of confirmation and confirmed officers shall be treated as senior to the unconfirmed officers in the respective cadre and Part B names shall be arranged with reference to the date of continuous officiation except where a promotion in an officiating capacity was by way of purely temporary or local arrangement
Immediately after the 1960 rules were made by the Government of Bombay the State of Bombay was bifurcated into the State of Maharashtra and Gujarat
The Government of Gujarat passed a resolution on May 1 1960 providing that all rules regulations circulars etc prevailing in the former State of Bombay will continue to operate in the new State of Gujarat until changed or modified
In 1965 the Government of Gujarat modified the 1960 rules in exer cise of the powers conferred by the proviso to article 309 of the Constitution and introduced a new clause 10 in the 1960 rules
On the bifurcation certain permanent and temporary posts of Deputy Engineers were allocated to the State of Gujarat
Some of the promotee Deputy Engineers from the lower ranks were also allocated to the State of Gujarat and several of them having completed three years  qualifying service had become eligible for confirmation under r 8ii of the 1960 rules but were not confirmed
The two appellants who were recruited as Overseers in 1953 were promoted temporarily as Deputy Engineers in 1959 and 1957 and were confirmed as Deputy Engineers in 1970
Respondents Nos 2 and 3 who were direct recruits were appointed as Deputy Engineers in 1963 and 1959 and were confirmed in 1965 and 1961
The two appellants alleged that though they had been in continuous service as Deputy Engineers since 1959 and 1957 respondents 2 and 3 who were appointed in 1963 and 1959 were shown as senior to them and that their the appel lants  seniority should have been fixed under the 1941 rules
In any case the 1960 rules could not take away the right accrued to them under the rules existing at the time of their promotion in 1959 and 1957 and that r 8iii of the 1960 rules and r 33 of the 1970 rules were ultra vires articles 14 and 16 of the Constitution
The respondents on the other hand contended that neither the 1941 rules nor 1963 rules had any application to them and that under the 1960 rules which superseded the 1939 rules posts of Deputy Engineers were required to be filled in by direct recruits and promotees in the ratio of 7525 and the question of seniority of the appellants could not arise until they were confirmed and their seniority fixed from the date of confirmation in terms of r 8iii of the 1960 rules
HELDI a Except the Bombay Rules of 1939 and the Gujarat notification dated August 21 1965 the rest of the rules are in the nature of executive instructions which unlike rules regulating recruitment and conditions of serv ice framed under the proviso of article 309 of the Constitution or section 2412b of the Government of India Act 1935 cannot have any retrospective effect
The rules of 1941 1960 1963 1965 and 1970 were not framed by the State Government in the exercise of constitutional or statutory power
The rules of 1960 and 1970 were issued By order and in the name of the Governor but that 777 does not mean that the two sets of rules must be deemed to have been made under article 309 of the Constitution
All executive action of the Government of a State is required by article 166 to be taken in the name of the Governor
790 B E b The 1939 rules have constitutional authority but being rules made to regulate the methods of recruitment they afford no assistance in finding a solution to the problem
They neither fix a quota for recruitment from the two avenues nor do they provide in any other manner a guide line for fixation of seniority as between appointees re cruited from different sources
Rule 10 is beside the point because the crux of the promotees  grievance is not that they are denied opportunities of promotion but that they are discriminated against in the matter of seniority in compari son with the direct recruits
790 E G c The departmental promotees are being treated un equally in the matter of seniority because whereas promo tees rank for seniority from the date of their confirmation seniority of direct recruits is reckoned from the date of their initial appointment
The disparity is so glaring that though direct recruits have to successfully complete a two year probationary period before confirmation even that period is not excluded while counting their seniority
A promotee ranks below the direct recruit even if be has officiated continuously as a Deputy Engineer for years before the appointment of the direct recruit is made and even if the promotees could have been confirmed in an avail able substantive vacancy before the appointment of the direct recruit
789 B D 2a The 1941 resolution expressly
governed the senior ity of direct recruits and promoted officers in all provin cial services except the Bombay Service Engineers Class I Since Deputy Engineers do not belong to Class service their seniority was governed by the Resolution
791 A b The wording of the Resolution leaves no doubt that the Government of Bombay applied two different standards for fixing inter se seniority of direct recruits and promo tees appointed as Deputy Engineers The former were enti tled to reckon their seniority with effect from the date of their initial appointment on probation while the seniority of the latter had to be determined with reference to the date of their promotion to substantive vacancies subject to the further qualification that there was no break in their service prior to their confirmation in those vacancies
Thus for the purposes of seniority the promotees had to depend firstly on the availability of substantive vacancies and secondly on the arbitrary discretion of the Government to confirm or not to confirm them in those vacancies
The fact that a substantive vacancy had arisen and was available did not proprio vigore confer any right on the promotee to be confirmed in that vacancy
The 1941 rules contained the real germ of discrimination because the promotees had to depend upon the unguided pleasure of the Government for orders of confirmation
In the pre Constitution era such hostile treatment had to be suffered silently as a necessary incident of government service
791 B D c It is difficult to uphold the claim of the promotees that the 1941 rules were modified by the letter dated Janu ary 11 1949
The Chief Secretary s letter cannot improve the promotees  case
791 G d The part of the letter on which the promotees rely deals exclusively with the case of Deputy Collectors which makes it difficult to extend the benefit of what is said therein to Deputy Engineers working in an entirely differ ent branch of government service
The Association had addressed its letter not to the Ministry which handled problems of Engineering Services but to the Ministry of Home and Revenue the latter of which was concerned to consider the grievance of Deputy Collectors
The opening sentence of paragraph 2 of the Chief Secretary s reply shows that he was referring to a class of service in which a quota system was then operating which did not apply either under the 1939 or under the 1941 rules to Engineering Serv ices
792 A C 778 3a Clause 8iii is highly discriminatory against promotees and accords preferential treatment to direct recruits and must be struck down as unconstitutional
b There is no Universal rule either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both
That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a cadre arises
793 E Bishan Sarup Gupta vs Union of India 1973 3 SCC 1 and A K Subraman vs Union of India 1975 2 SCR 979 referred to
Ganga Ram  Ors
vs Union of India  distinguished
c It is difficult to hold that the officiating Deputy Engineers do not belong to Class II of the Bombay and Gujarat Service of Engineers
794 A d The contention that in view of cll
i and ii of r 8 of the 1960 rules officiating Deputy Engineers do not belong to Class Ii cadre of the Bombay and Gujarat Service of Engineers must be rejected since the point is concluded by the decision of this Court in PY Joshi vs State of Maharashtra It was held in that case that the list referred to in cl
ii of r 8 is the same list which is referred to in the latter part of cl
i of that rule which speaks of future recruitment
Consequent ly a promoted officiating Deputy Engineer who belonged to Class II cadre was held entitled to be considered for promotion under r 7 to the post of officiating Executive Engineer if he had put in 7 years  qualifying service
The eligibility for promotion did not require that the offici ating Deputy Engineer must have put in 7 years  service after the date of confirmation
795 B E e It must necessarily follow that promotion with the latter part of r 8i relating to future recruitment speaks of means promotion as an officiating Deputy Engineer from the Select List prepared under r 8ii
A person thus promoted from the Select List as an officiating Deputy Engineer is as full and complete a member of the Class II cadre as a person directly appointed as a Deputy Engineer
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 75 25 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 r 8i only requires that for every three direct recruits appointed as Deputy
Engineers only one promotee can he appointed as officiating Deputy Engineer
The rule cannot be construed to mean that for every three confirmations of Deputy Engineers not more than one promotee can be confirmed as Deputy Engineer
795 F H 796 A A K Subraman vs Union of India 1975 2 SCR 979 fol lowed
f Though drawn from two different sources the direct recruits and promotees constitute in the instant case a single integrated cadre
They discharge identical func tions bear similar responsibilities and acquire an equal amount of experience in their respective assignments
Yet clause iii of r 8 provides that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year
This formula gives to the direct recruit even the benefit of his one year s period of training and another year s period of probation for the purposes of seniority and denies to promotees the benefit of their long and valuable experience
If there was some intelligible ground for this differentiation bearing nexus with efficiency in public services it might perhaps have been possible to sustain such a 779 classification
Instead of adopting an intelligible differentia r 8 iii leaves seniority to be determined on the sole touchstone of confirmation
Confirmation is one of the inglorious uncertainties of government service de pending neitheron efficiency of the incumbent nor on the availability of substantive vacancies
In the instant case officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed
796 C G g There is no substance in the plea that direct recruits must be given weightage on the ground that the engineering services require the infusion of new blood since it is a highly specialised service
Were it so the Government would not have itself reduced the proportional representa tion gradually so as to tilt the scales in favour of promotees
Besides the plea that engineering service is a specialised service is made not by the Government but by recruits who are interested in so contending
Nor is the apprehension justified that the higher echelons of engi neering service will in course of time be manned predomi nantly by promotees
Those recruited directly as Assistant Engineers in Class I can under the rules officiate as Executive Engineers after four years  service and are eligible for confirmation as Executive Engineers after a total service of 9 years
Promotees can hardly ever match with that class in terms of seniority
797 A C BS Gupta vs Union of India  and VB Badami vs State of Mysore 1976 1 SCR 815 distin guished
In the instant case rule 8ii adopts seniority cure merit test for preparing the state wise Select List of seniority and yet cl
iii rejects the test of merit altogether
The vice of that clause is that it leaves the valuable right of seniority to depend upon the mere accident of confirma tion
That under articles 14 and 16 is impermissible and therefore r 8iii must be struck down as unconstitu tional
797 G H 4
The High Court was right in rejecting the contention of the promotees that the 1963 rules superseded the 1960 rules by implication and that therefore the State Government had no power or authority to apply the criterion of seniori ty fixed under the 1960 rules after their repeal by 1963 rules
The quota system was the very essence of 1960 rules and if it was desired to abrogate that system it is un likely that the 1963 rules will not even refer to those of 1960
The rules of 1941 having been expressly superseded by 1963 rules it is difficult to accept that along with the 1941 rules the resolution of 1963 would not have re ferred to the 1960 rules also
Secondly the resolution of 1970 of the Government of Maharashtra expressly superseded the 1960 rules which shows that the latter were in force until 1970 and were not superseded by the 1963 rules
The resolution of 1970 refers to all previous resolutions except the resolution of 1963 which shows that the latter was not applicable to engineering services
798 C E 5
Rules 33 of the 1970 rules in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation is open to the same objection as r 8iii of the 1960 rules and must be struck down for identical rea sons
800 A B 6
The circulars dated January 12 1961 March 15 1963 and October 18 1968 which the promotees want to be enforced were issued by the Finance Department and being in the nature of inter departmental communications they cannot confer any right on the promotees
800 A B 7
The High Courts were right on the view that the rules under consideration do not in any manner violate the provisions of the Bombay Reorganisation Act
11 of 1966
800 B 8
The argument in the Gujarat Writ Petitions that though originally the 1960 rules were in the nature of executive instructions they have acquired a statutory force and character by reason of their amendment by the rules of 780 1965 was rightly rejected by the High Court because all that was done by the 1965 rules was to introduce a new rule r 10 in the 1960 rules
The rules of 1960 were neither reiterated nor reenacted by the rules of 1965 and the new rule introduced into the rules of 1960 is not of such a character as to compel the inference that the rule making authority had applied its mind to the rules of 1960 with a view to adopting them
798 G H 799 A Bachan Singh vs Union of India  inap plicable