Case: S.B. Patwardhan &amp; Others  Vs. State Of Maharashtra &amp; Others

since there are no rules in Maharashtra corresponding to those of 1965 in Gujarat. 47. 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 8(iii) of the 1960 rules was assai led. 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 vacancies 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 12(a) 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 officiating 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. Rule 12(c) 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. Confirmed officers are to be treated as senior to the unconfirmed 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 officiating capacity is by way of a purely temporary or local arrangement. 48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons. 49. The circulars dated January 12, 1961, March 15, 19 63 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. 50. 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 s. 81 (6) of that Act says that the conditions 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 Central 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. 51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally 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 Government. 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 recruits and promotees. All other factors being equal, continuous 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Concededly, they are being treated unequally in the matter of seniority because whereas, promotees rank for seniority fro m 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 confirmation, 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.25. For facilitating a proper understanding of this problem it is necessary to take birds eye-view of the various rules and resolutions which were passed by the two State Governments, most of which we have already noticed. In this behalf, attention has to be called particularly to: (1) The rules framed by the Government of Bombay on September 21, 1939 under s. 241 (2)(b).of 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 Secratary, Government of Bombay, to the Honorary Secretary, Bombay Civil Service Association: (4) The Resolution of t he 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 Resolution of the Government of Maharashtra dated July 29, 1963 laying down principles of seniority; (6) The Notification dated August 21, 1965 issued by the Government of Gujarat under the proviso to. art. 309 of the Constitution, introd ucing 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 certain number of temporary posts into permanent posts from time to time26. 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 executive 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 art. 309 of the Constitution. All executive action of the Government of a Stale is required by art. 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 instructions, unlike rules regulating recruitment and conditions of service framed under the proviso to art. 309 of the Constitution or s. 241(2)(b) of the Government of India Act, 1936, cannot have any retrospective effect.28. 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, provided there has been no break in their service prior to their confirmation in those vacancies. This Resolution expressly governed the seniority of direct recruits and promoted officers in all provincial services except the Bombay Service 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 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 t he 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.29. 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 L.M. 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 Ajgaonkars affidavit contain s an omni- bus and rolled-up clause of verification at the end, which detracts from the weight of his assertion30. 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, i.e. with reference to the date of first appointment on probation in the case of direct recruits and of continious officiat ion in the ease of promoted officers. In the first place, 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 Engineers, working in an entirely different branch of government service. The Chief Secretarys letter is a reply to the Associations letter which the promotees did not produce. 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 Secretarys reply shows that he was referring to a class of service in which a quota system was t hen 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 Secretarys reply cannot, therefore improve the promo tees 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- kars 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.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 Engineers 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 guaranteed to them. This contention needs careful examination34. 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 II 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 L.M. 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 subdivisions 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 temporary additions to their respective cadres36. 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 determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class II cadre. The government officers 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.This contention has to be rejected since the point is concluded by a decision of this Court in P.Y. Joshi v. State of Maharashtra. ([1970] 2 S.C.R. 615)This argument was squarely dealt with and repelled by this Court by holding 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.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 years period of training and another years 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 contradictory contentions were taken, sometimes in favour of the promotees and sometimes in favour of direct recruits. Instead 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 service depending neither on efficiency. of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished 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 conf irmation 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.40. 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 representation 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 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.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 service in any substantive vacancy in the permanent cadre and that rule established the exclusion of temporary posts from the cadre (p.822). Since the cadre consisted of permanent posts only, confirmation in permanent posts necessarily determined the inter se seniority of officers43. Rule 8(ii) in the instant case adopts the seniority-cum-merit test for preparing the state wise 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 Arts. 14 and 16 of the Constitution, is impermissible and therefore we must strike down rule g(iii) as being unconstitutional.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 satisfi ed 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 P.Y. Joshis case (supra) it was observed that the 1963 rules repealed those of 1960 but that is a mere passing observation. 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 1963.46. 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 Art. 30 9 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 adopting them. In Bachan Singh v. Union of India (A.I.R. [1973] S.C. 441), 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 Gujarat47. 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 8(iii) of the 1960 rules was assai led. 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 vacancies 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 12(a) 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 officiating 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. Rule 12(c) 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. Confirmed officers are to be treated as senior to the unconfirmed 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 officiating capacity is by way of a purely temporary or local arrangement.48. Rule 33, in so far as it makes seniority dependent upon the fortuitous circumstance of confirmation, is open to the same objection as rule 8(iii) of the 1960 rules and must be struck down for identical reasons49. The circulars dated January 12, 1961, March 15, 19 63 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 case50. 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 s. 81 (6) of that Act says that the conditions 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 Central 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 proviso51. We are not unmindful of the administrative difficulties in evolving a code of seniority which will satisfy al l conflicting claims. But care ought to be taken to avoid a clear transgression of the equality clauses of the Constitution. The rules framed by the State Governments were constitutionally 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 Government. 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 recruits and promotees. All other factors being equal, continuous 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.