Case: Prabrakar Yeshwant Joshi &amp; Others Vs. State of Maharashtra &amp; Others

In order to understand the contentions urged on behalf of the petitioners it will be necessary to state briefly the history of the service and the several resolutions which are applicable to them in respect of recruitment as well as seniority. The Bombay and subsequently the Maharashtra service of engineers consists of Class I and Class II (Deputy Engineers). They were initially governed by rules framed under the resolutions of the Government in the Public Works Department dated the 22nd March 1937. The recruitment to these services both in class I and class II was partly by direct recruitment and partly by promotion from amongst the members of the lower cadres. In 1939 further rules were made to regulate the method of recruitment to the State services. Under these rules recruitment to the Bombay Service of Engineers Class I was to be from two sources, (1) by nomination under r. 3 by virtue (1) the guarantee given to the engineering college of Poona and (2) by promotion from the existing Bombay Service of Engineers (since discontinued) or from the Bombay Service of Engineers Class II. The recruitment to the Bombay Service of Engineers Class II under the rules of 1939 was also to be similarly from two sources, (1) by nomination under r. 11 in accordance with the guarantee to the Royal College of Poona (which was withdrawn in 1947) and (2) by promotion from (a) Bombay Subordinate Engineer Service, (b) permanent and temporary supervisors and (c) temporary engineers appointed on annual sanction. These rules however did not specify the principles upon which the seniority of the direct recruits and the promotee officers was to be determined. The Government of Bombay accordingly by a resolution dated 21st November 1941 laid down the following principles to be applicable to direct recruits and promoted officers in the provincial service except the Bombay Service of Engineers Class"In the case of direct recruits appointed directly on probation, the seniority should be, determined with reference to the date of their appointment on probation;(2) 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 service prior to their confirmation in those vacancies.It may here be stated that the Bombay Government had appointed a committee known as Gurjar Committee to examine "whether class I and class II cadres in the said services should be continued or whether they should be combined into one class and what should be the ratio between the direct recruits and the departmental promotees to the said service. The Committee made its recommendations in 1951. The Government after due considerations of the recommendation and the earlier rules regulating the condition of service in the Bombay Service of Engineers passed a resolution dated 29th April 1960 setting down the principles for recruitment to the Bombay Service of Engineers Class I and Class II. Before this resolution, as we have noticed earlier, the Deputy Engineers Class II service cadre consisted of (a) direct recruits to the Bombay Service of Engineers Class II, (b) Deputy Engineers confirmed from the subordinate services of Engineers, (c) temporary deputy engineers recruited by the Bombay Public Service Commission and (d) officiating Deputy Engineers and similar other categories. These four categories were being compiled into 2 lists only, namely, (1) Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and (2) the list of officiating Deputy Engineers. It also further continued the existing constitution of class I and class II engineering service. The appointments to be made were to be both by direct recruitment through the competitive examinations held by the Public Service Commission and by promotion, provided however that the ratio of appointments by nomination and by promotion shall as far as pracucable by 75: 24. The candidates appointed to either of me two services by nomination had to be on probation for 24 years before being confirmed provided further that an Assistant Engineer would be confirmed as Executive Engineer after nine years service unless the period is extended by tile government. The Deputy Engineers Permanent in class It cadre had Lo put in at least 15 years of service in class II in temporary and permanent capacities and must be officiating executive Engineers at the time of their absorption.The resolution of 1960 provided that in future recruitment to Bombay Service of Engineers class II cadre shall be made (1) by nomination of candidates recruited directly by a competitive examination held by the Commission and (2) by promotion from the list of officiating Deputy Engineers. The direct recruitment or temporary Deputy Engineers was to cease and the officiating vacancies were to be filled from the ranks of subordinate service of Engineers for which purpose a state wise select seniority list of members of the subordinate service of Engineers cadre considered fit to hold sub-divisional charges was to be compiled and maintained as on 30th June each year. On July 29, 1963 the Government of Bombay further amended the rules prescribed in Government Resolution of November 21, 1941 for regulating the seniority of direct recruits and promoted officers. In super session of the previous rules it provided that the seniority of the direct recruits is to be determined according to the date of appointment on probation and of the promotees according to the date of promotion to officiate continuously irrespective of whether the appointments are made in temporary or in permanent vacancies subject to the previsions contained therein.5. In so far as promotion from lower to higher grade of post is concerned, the principle of seniority-cum-merit was always followed by the Government which subsequently also formed the bases of the Government resolution dated 18th December 1950 which inter alia prescribed that no officer who had positive qualification should be passed over by an officer junior to him unless the latter had in addition really exceptional ability or qualification. This resolution was passed after consultation of the Bombay Public Service Commission and in super session of the orders of the previous resolutions dated 22nd May 1944, 23rd March 1945 and the 18th March 1947. Thereafter by another resolution dated 4th March 1957 the principle for the preparation and maintenance of a select list of Deputy Engineers who were considered fit for promotion as Executive Engineers was formulated. According to this resolution, a committee consisting of 3 Chief Engineers under the chairmanship of the senior Chief Engineer was to review in December each year the claim of officers in the Bombay Service of Engineers class II for promotion to the post of Executive Engineer. This committee had to prepare a select list with due regard to the provisions of the government resolution dated the 18th December 1950. Likewise, the Government by a resolution dated 20th August 1965, revising its previous resolution dated 24th August 1954 and 14th December 1959, formulated the principles for preparation, maintenance and revision of a list of overseers fit for promotion as Deputy Engineers. Under this resolution state wise list as on 1st April of every year of each of the categories of overseers bad to be made comprising of (1) graduate overseers, (2) diploma holder overseers (DCE-Poona) or equivalent, (3) subordinate overseers holding the Diploma of the Osmania University, and (4) non qualified overseers. The length of service required for eligibility to promotion to the post of officiating Deputy Engineer in respect of the first category was 3 years, second category 8 years, third category 10 years including past service as sub-overseers of those allocated from the ex-Hyderabad State, and fourth category 13 years.We may now briefly state the different grades of service and the channels of promotion in the Engineering service of the Maharashtra State created as a consequence of the various rules. At the apex of the service are the Chief Engineers, Superintending Engineers and the Executive Engineers who constitute class I service. The channels of promotion to the cadre of Executive Engineers is from two sources, (a) direct recruit to class Assistant Engineers, and (2) Deputy Engineers class II. , The cadre of Deputy Engineers class II is constituted by direct recruits 75 per cent and promotees 25 per cent. The channels of promotion to the promotees class II were from temporary engineers and from the subordinate service, namely, graduate engineers, now known as junior engineers, diploma holder overseers and junior or non-technical overseers promoted from still lower ranks.

Reasoning:
It would be apparent from the 1941 rules that they merely provide for fixation of seniority of the direct recruits and officers promoted to the substantive vacancies but have nothing to do with the qualifications required for promotion to the next higher rank. Rule 6 of 1960 deals with class I posts. Clauses 1, 2 and 3 of this rule provide (1) that 25 per cent posts in class I are to be filled by promotees, (2) that for absorption into class 1, class II Officer must have a permanent service in class II cadre, (b) have 15 years of service in class II in temporary and permanent capacities, and (c) that he must be holding an officiating divisional rank at the time of such absorption. Clause 3 deals with inter se seniority between the Assistant Engineers and Class II promotees to the post of Executive Engineers. The absorption referred to in r. 6 is a permanent absorption because cl. 2 provides that on such absorption the class IT officers shall be confirmed as Executive Engineers. Clause 6 gives no indication that class II officers whether direct recruits or promotees cannot be promoted as officiating Executive Engineers. That is dealt with by cl. 2 of as officiating Engineers. That is dealt with by cl. 2 of r. 7 which r. 7 which provides that Class II officers should have as far as possible at least 6 years longer service than the promotee under consideration from class 1, viz., Assistant Engineers, and further that he should at least have seven years service. Even this rule does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of r. 6 it is provided that 15 year, of service in class II for absorption as Executive Engineer can be in temporary or permanent capacities. There is nothing in r. (ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from class IT a, officiating Executive Engineer can only he made after 7 years of permanent service, then there would be no meaning in including the temporary service in class IT for the purpose of absorption as Executive Engineer. Even r.8 upon which Shri Gupte has laid great emphasis in support of hi, contention. does not, in our view, justify an interpretation that the 7 years service required to entitle persons in class II for promotion as an officiating Executive Engineer should be permanent service in classwe have seen earlier, cl. (ii) of r. 7 does not use the word belong but requires only that the person under consideration for promotion should be from class II service. To be in class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in class II service in temporary or permanent capacities and is holding an officiating divisional rank, namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Deputy Engineer with 7 years service whether officiating, temporary or permanent to entitle him for promotion as an Executive Engineer.The list that is referred to in cl. (i) of r. 8 must be read with the further provision in that rule that for inclusion in that list of persons 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 of service as overseers. In our view it is the list of such persons that is referred to in cl. (ii) of r. 8 and not that there should be a list of persons actually officiating as Engineers for further promotion to the same post which will have little meaning , for there cannot be a promotion of a person in the same cadre of g service who is already promoted whether as an officiating or temporary or permanent incumbent. If cl. (i) of r. 8 provides that class IT cadre shall be recruited by competitive examination, the promotees also are promoted from the list of persons considered fit to hold sub divisional charge, i.e., posts of Deputy Engineers. If in the case of direct recruits the appointment is without reference to confirmation, it cannot be any different in the case of promotees.8. We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under r. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation. On the other hand, the subsequent resolution of the Government of 1963 makes it abundantly clear that the seniority of promotees should be considered as from the date of promotion to officiate continuously irrespective of whether the appointments are made in temporary or permanent vacancies. It is no doubt submitted that this does not have the force of rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do not support the contention of the petitioners, the question whether the resolution has the force of rules may not be relevant in this context, but none the less in our view, there is force in the contention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have no statutory force and are no better than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are not purported to be made under any provision of law or even under Art. 309. There also is nothing to indicate that the procedure and formalities required for making rules have been gone through.It is next contended that the persons from the Hyderabad service did not have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This contention also, in our view, has no force because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the notification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the contemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service conditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to consider these claims and to give redress.9. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they could not be considered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into consideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is no statutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion.Apart from these contentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a committee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be considered and if having been considered they have been left out, they would have no claim to promotion as a matter ofanswer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16.