Case: P.S.Mahal and Others Vs. Union of India and Others

This writ petition marks yet another round of litigation between two groups of Executive Engineers in Central Public Works Department of the Ministry of Works and Housing, Government of India, one group consisting of promotees from the grade of Assistant Executive Engineers and the other consisting of promotees from the grade of Assistant Engineers. The dispute between these two groups in regard to seniority has been going on for quite some time and it has created considerable discord and bitterness between these two groups which must inevitably affect the efficiency of the Service. It is really a matter of regret that the Central Government should not have been able to bring these two groups together and evolve a commonly agreed formula acceptable to both sides. We hope that our decision in this writ petition will finally ring the curtain down on t his unfortunate controversy and both groups of Executive Engineers will accept the decision ungrudgingly without any rancour or resentment and wholeheartedly engage themselves in the nation building task entrusted to them.There is in the Central Public Works Department of Ministry of Works and Housing, Government of India a Service known as Central Engineering Service (Class I). This Service comprises various grades; the highest grade is that of Engineer-in-Chief and then in descending hierarchical order are the grades of Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Executive Engineer. The Central Government has made rules of recruitment to this Service known as the Central Engineering Service (Class I) Recruitment Rules 1954 (hereinafter referred to as Recruitment Rules) and they are issued under SRO 1841 dated 21st May 1954. Part I of the Recruitment Rules contains the definition and Clause (c) of Rule 2 occurring in this Part defines "Service" as Central Engineering Service Class I. Rules 3, 4 and 5 contained in Part II of the Recruitment Rules lay down the modes of recruitment to various grades in this Service in the following3 Recruitment to the service shall be made by any of the following methods:-      (a) By competitive examination in India in accordance with Part III of these rules.      (b) By promotion in accordance with Part IV of these rules.      (c) By transfer in accordance with Part V of these Rules4. (1) All appointments to the service or to posts borne upon the cadre of the Service shall be made by Government.      (2) Subject to the provisions of the rule 3 Government shall determine the method or methods of requirement (Sic) (recruitment ?) to be employed for the purpose of filling any particular vacancies in the Service or such vacancies therein as may be required to be filed during any particular period and the number of candidates to be recruited by each method.      Provided that all recruitment by competitive examination (vide Part III of the rules) shall be to the grade of Assistant Executive Engineer, Class I only.      Seventy-five per cent of the vacancies in the grade of Executive Engineer, Class I, shall be filled by promotion of Assistant Executive Engineers, Class I, the rest of t he vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively5. Appointment to the Service made otherwise than by promotion will be subject to orders issued from time t o time by the Ministry of Home Affairs regarding special representation in the Services for specific sections of the people"Assistant Executive Engineers belong to the lowest grade in this service and they are recruited only through a competitive examination in accordance with Part III of the Recruitment Rules. On their initial recruitment, Assistant Executive Engineers are required to undergo a period of probation for two years and they are confirmed in the grade of Assistant Executive Engineers after successful completion of the period of probation.There is also another Service in the Central Public Works Department called Central Engineering Service Class II. This Service consists only of the grade o f Assistant Engineers. The rules of recruitment to the grade of Assistant Engineers are to be found in the Central Engineering Service Class II Recruitment Rules. There are two modes of recruitment laid down in these Rules; one is by direct recruitment through the same competitive examination which is held for selection of Assistant Executive Engineers, the candidates lower down in rank than those selected for the grade of Assistant Executive Engineers being select ed for the grade of Assistant Engineers and the other is by process of selection from a subordinate Service called Class III Service. Assistant Engineers belong to Class II service, unlike Assistant Executive Engineers who belong to Class II service but the posts which they hold are interchangeable, each of them being in charge of a sub- division and the nature of work, responsibilities, powers and duties discharged by them all is identical. There is only a minor difference in the pay scales but otherwise for all practical purposes, there is no difference between them so far as their functions powers and duties are concerned.The next higher grade above that of Assistant Executive Engineers is that of Executive Engineers Recruitment to the grade of Executive Engineers is made by promotion from two sources, namely Assistant Executive Engineers and Assistant Engineers. Assistant Executive Engineers are eligible for promotion to the grade of Executive Engineers after completion of five years of service and they are promoted on the basis of seniority-cum-fitness. Assistant Engineers on the other hand are eligible for promotion to the grade of Executive Engineers only after eight years of Service in their grade and for them, the post of Executive Engineer is a selection post and they are selected for promotion on the basis of merit; the selection being made through a departmental promotion committee presided over by a member of the Union Public Service Commission. Prior to 25th August 1949, there was no quota for promotion to the grade of Executive Engineers from the grades of Assistant Executive Engineers and Assistant Engineers but for the first time on 25th August 1949, a quota was prescribed by the Central Government and it was provided that the vacancies in the grade of Executive Engineers shall be filled by promotion from the grades of Assistant Executive Engineers and Assistant Engineers in the ratio of 75% to 25%. This continued right up to the time the Recruitment Rules were enacted in 1954 and that is why the last part of clause (2) of Rule 4 of the Recruitment Rules provided that 75% of the vacancies in the grade of Executive Engineers shall be filled by promotion of Assistant Executive Engineers, the rest of the vacancies being filled by promotion and or by transfer in accordance with Parts IV and V of the Recruitment Rules. This quota was altered with retrospective effect from 7th September 1955 from 75 and 25 per cent to 66 2/3 and 33 1/3 per cent and it was again altered with effect from 1st April 1972 to 50:50 for a period of seven years.It appears that whenever Assistant Executive Engineers and Assistant Engineers were promoted to the grade of Executive Engineers, they were first appointed on officiating basis. The quota was however, for reasons which we shall presently discuss not adhered to at the time of such promotions with the result that Assistant Engineers came to be promoted as officiating Executive Engineers far in excess of their quota while there was a shortfall in the promotions of Assistant Executive Engineers so far as their quota was concerned. Now there were no statutory rules governing inter se seniority of Executive Engineers promoted from the grades of Assistant Executive Engineers and Assistant Executive Engineers but there was a Memorandum issued by the Home Ministry on 22nd June 1949 which laid down general principles of seniority applicable to all departments. This Memorandum provided that "in respect of persons employed in any particular grade, seniority should, as a general rule, be determined on the basis of length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan." The length of continuous officiation in the grade was thus taken as the yardstick for the purpose of determining seniority in all departments of the government and a fortiorari, in the grade of Executive Engineers. On the basis of this yardstick, Assistant Engineers promoted as officiating Executive Engineers within their quota would clearly be senior to Assistant Executive Engineers promoted later as officiating Executive Engineers.However, Respondent No. 1 to 3 issued a seniority list on 1st July 1971 in which Executive Engineers promoted from the grade of Assistant Engineers in regular manner on the basis of selection made by Departmental Promotion Committee and within their quota were shown as junior to several Executive Engineers promoted much later from the grade of Assistant Engineers. Respondent N o. 1 to 3 in making this seniority list proceeded on the basis that the quota rule specified in the last part of sub-rule (2) of Rule 4 of the Recruitment Rules necessarily implied a system of rotation and it was required to be strictly applied a t the stage of confirmation in the grade of Executive Engineers. In other words, out of three vacancies in the grade of Executive Engineers, unless two reserved for promotion of Assistant Executive Engineers were filled up by confirmation of su ch promotees, the third one for confirmation of Assistant Engineer promoted as Executive Engineer could not be filled. Consequently, all Assistant Engineers were treated as ad-hoc appointees without any claim to seniority until such time as they were confirmed as Executive Engineers within their quota. The impact of this decision of Respondent No. 1 to 3 was disastrous for a large number of Executive Engineers promoted from the grade of Assistant Engineers on officiating basis, since many of them had to retire without being confirmed and therefore, without any claim of seniority in the grade of Executive Engineers and even today, according to the petitioners, there are hundreds of officiating Executive Engineers promoted from the grade of Assistant Engineers who are working in the Central Public Works Department for decades without confirmation and according to the principle adopted in preparing the seniority list of 1st July 1971, they would have no claim to seniority in the grade of Executive Engineers and would become junior even to recent promotees from the grade of Assistant Executive Engineers.The seniority list dated 1st July 1971 was preceded by provisional seniority lists which were prepared annually on the basis of the same formula and some of the Executive Engineers promoted from the grade of Assistant Engineers, therefore, without waiting for the publication of the final seniority list dated 1st July 1971 preferred writ petitions in the Delhi High Court challenging the validity of the provisional seniority lists. There writ petitions were referred to a Full Bench since they involved questions of some importance and the Full Bench by a common judgment dated 20th May 1971 rejected the contentions of the petitioners and concurring with the stand adopted by respondent Nos. 1 to 3, held that the quota rule applied not at the stage of initial promotion on officiating basis but at the stage of confirmation and rotational formula for the purpose of determining seniority was implicit in the quota rule and on this view, the Full Bench upheld the provisional seniority lists which, as already pointed out above, were on the same lines as the final seniority list dated 1st July 1971 and which fixed seniority in the grade of Executive Engineers according to the rotational formula based on the quota rule. The petitioners in these writ petitions thereupon preferred Civil Appeal Nos. 1745, 1746 &1747 of 1974 after obtaining special leave to appeal against the judgment of the Delhi High Court.

Reasoning:
This ground of challenge is clearly unsustainable and must be rejected. It is true that the Rules of 1976 have been brought into force with effect from 10th December, 1974 but in rules 2(iii) and 2 (iv) they lay down a rule of seniority affecting Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineer s regularly within their respective quota from and after 22nd December, 1959. It is therefore not possible to say as a matter of plain grammatical construction that the Rules of 1976 cannot affect the petitioners and other Assistant Engineers promoted regularly within there quota prior to 10th December, 1974.The question would however remain whether Rules 2 (iii) and 2 (iv) of the Rules of 1976 in so far as they lay down a rule of seniority different from the rule of length of continuous officiation for Executive Engineers promoted from and after 22nd December, 1959, are constitutionallyvalid.This is the question which we shall proceed to consider under Ground CRe: Ground CWe have already pointed out that thou gh the Rules of 1976 have been brought into force with effect from 10th December 1974, they do not have the effect of over-riding the decision in A.K. Subramans case directing the Government to amend and revise the seniority list so as to fix inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota up to 11th December 1974, by applying the rule of seniority based on length of continuous officiation. On this view, Rules 2(iii) and 2(iv) of the Rules of 1976, in so far as they provide for seniority being given en bloc to the Assistant Executive Engineers promoted to the 86 carried forward posts of Executive Engineers and apply the rotational formula for the purpose of determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequent vacancies, must be held to be ineffective qua Assistant Engineers &Assistant Executive Engineers promoted upto 11th December, 1974 and so far as these Assistant Engineers and Assistant Executive Engineers are concerned, their inter se seniority must be held to be governed by the length of continuous officiation in the grade of Executive Engineers.But the question would still survive whether inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted subsequent to 11th December, 1974 would have to be determined in accordance with the rotational rule of seniority set out in Rule 2(iv) or this rotational rule of seniority is unconstitutional and void as offending Articles 14 and 16 of the ConstitutionIt may also be considered in the alternative, on the assumption that Rules 2(iii) and 2(iv) of the Rules of 1976 govern the determination of inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd December, 1959 despite the decision in A.K. Subraman case, whether these rules can successfully meet the challenge of Article 14 and 16 or they would be liable to be condemned as constitutionallye may first consider the constitutional validity of Rules 2(iii) and 2(iv) of the rules of 1976 in so far as they affect the inter se seniority of Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota from and after 22nd December, 1959. Now the position which obtained on 22nd December 1959 was that there were 86 Assistant Engineers who had been promoted in excess of their quota and correspondingly there was short-fall of 86 in promotions of Assistant Executive Engineers. We are not sure whether in the light of what we have said above, the excess in promotions of Assistant Engineers and the deficiency in promotions of Assistant Executive Engineers would stand reduced, but that would not make any difference so far as the present question is concerned and we shall therefore proceed on the footing that the excess in promotions of Assistant Engineers and the short-fall in promotions of Assistant Executive Engineers was 86. The question is whether, consistently with the constitutional requirement of Articles 14 and 16, en bloc seniority could be given to the Assistant Executive Engineers promoted to fill the 86 vacancies allocable to the quota of Assistant Executive Engineers and remaining unfilled by them up to 22nd December 1959. These 86 vacancies were under Rule 2(iii) directed to be carried forward and filled by Assistant Executive Engineers promoted on or after 22nd December 1959 and the Assistant Executive Engineers no promoted were given seniority en bloc. The petitioners objected to this provision in Rule 2(iii) for carry forward of these 86 vacancies and contended that there could be no carry forward of any vacancies which were not filled by Assistant Executive Engineers and so promotion s of Assistant Executive Engineers could be made to fill such vacancies as from the date when they arose in any particular year. This objection raised on behalf of the petitioners is partly sustainable and partly not. Where the quota rule is a statutory rule which has to be scrupulously observed, the vacancy which according to the quota rule is allocable to promotees from one source cannot be filled by a promotee from another source and if, notwithstanding the quota rule, the vacancy is filled by a promotee from that other source, such promotion would be irregular and as pointed out above, the vacancy would continue to remain a vacancy liable to be filled by a promotee from the first mentioned source. It would not be strictly accurate to say that in such a case the vacancy is carried forward in the sense in which that expression has been used in T. Devdasan v. Union of India. It was pointed out by this Court in Mervin Coutinhs v. The Collector of Customs, Bombay:".....in the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake".These observations w ere quoted with approval by a Bench of Five Judges of this Court in G.D. Kelkar v. Chief Collector of Imports and Exports. What therefore happens in such a case is that the vacancy which is pro tempore irregularly occupied by a promotee from another source remains available for being filled by a promotee from the source to which the vacancy belongs and in that sense, it may loosely be said that the vacancy is carried forward from the year in which it arose to a subsequent year in which it is properly filled by a promotee from the right source. This is precisely what Ray, C.J. speaking on behalf of the Court in V. S. Badami v. State of Mysore said at page 823 of t he. if promotions are made to vacancies in excess of the promotional quota, the promotions may not be total illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If promotees occupy any vacancies which are within the quota of direct recruits when direct recruitment takes place the direct recruit will occupy the vacancies within t heir quota. Promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a ca se."We must therefore hold that Respondent Nos. 1 to 3 were right in proceeding on the basis that 86 vacancies allocable to the quota of Assistant Executive Engineers remained unfilled as on 22nd December, 1959 and were available for being filled by Assistant Executive Engineers subsequent to that dateBut the question arises whether the Assistant Executive Engineers promoted to fill these 86 vacancies which were, to use the expression in Rule 2(iii), carried forward from the period prior to 22nd December 1959 could be deemed to have been promoted from the dates when these 86 vacancies arose or they could be said to have been promoted only from the dates of their actual appointment.Now obviously there could not be any appointment of Assistant Executive Engineers to these 86 vacancies with retrospective effect and they must be taken to have been promoted to these 86 vacancies only from the dates of their actual appointment and from no earlier dates. If that be so, i t is difficult to appreciate how, consistently with the mandate of Articles 14 and 16 of the Constitution, an Assistant Executive Engineer appointed to one of these 86 vacancies could under Rule 2(iii) be given seniority as if he were promoted to that vacancy on 22nd December 1959, though he might in fact have been promoted years later and on this basis given precedence over Assistant Engineers promoted regularly within their quota long prior to the actual promotion of such Assistant Executive Engineer. The consequence of giving effect to Rule 2(iii) providing en bloc seniority to the Assistant Executive Engineers promoted to fill these 86 vacancies would be that a large number of Assistant Engineers though promote d regularly within their quota years before the actual promotion of such Assistant Executive Engineers would become junior to such Assistant Executive Engineers and their promotional opportunities would be seriously prejudiced In fact , they would have to wait until the Assistant Executive Engineers promoted to these 86 vacancies were promoted further as Superintending Engineers and then only they would have a chance of being considered for further promotion and even such chance would recede and be reduced to almost nil if the rotational rule of seniority were to be applied in respect of promotions to subsequent vacancies as set out in Rule 2(iv). This would become amply clear if we look at the chart Annexure I to the writ petition which reproduces the seniority list dated 14th August 1975 along with other particulars relating to the Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers. The Assistant Executive Engineers promoted to these 86 carried forward vacancies figure in the seniority list dated 14th August 1975 at Sr. Nos 100 to 185 and the particulars given in regard to them in the chart Ex. I show that though the Assistant Executive Engineers at Sr. Nos. 122 to 185 were promoted as Executive Engineers after 1962, they were placed higher in seniority than petitioner No. 1 who was as Assistant Engineer promoted as Executive Engineer and absorbed within his legitimate quota in 1962 and so also the Assistant Executive Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were given seniority above petitioner No. 2 who was an Assistant Engineer promoted as Executive Engineer and absorbed within his lawful quota in 1966, Rule 2(iii ) in so far as it gives en bloc seniority to the Assistant Executive Engineers promoted to these 86 vacancies irrespective of the date when they were actually promoted and pushes down in seniority Assistant Engineers though promoted regularly w ithin their quota prior to the actual promotion of such Asstt. Executive Engineers, thereby prejudicially affecting their promotional opportunities, must therefore be held to be violative of Articles 14 and 16 of the Constitution.We find that rule 2(iv) also suffers from the same infirmity. It provides for rotational rule of seniority based on the prevailing quota for determining inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted to the grade of Executive Engineers from and after 22nd December 1959 subject to en bloc seniority being given to the Assistant Executive Engineers promoted to the 86 carried forward vacancies as set out in Rule 2(iii). Obviously, if Rule 2 (iii) providing for en bloc seniority to be given to the Assistant Executive Engineers promoted to the 86 carried forward vacancies is unconstitutional and void as held by us in the preceding paragraph of this judgment, it must follow that the inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted from and after 22nd December 1959 would be governed wholly by the rotational rule of seniority set out in Rule 2(iv). Now there can be no doubt that a rule of seniority based on rotation of vacancies according to the quota prevailing at the time would be constitutionally acceptable if the quota rule were strictly implemented, barring minor deviations. It is well settled as a result of several decision of this Court that there is nothing inherently wrong in working out the quota rule by adopting the rotational rule of seniority. But, as pointed out by this Court in N.K Chauhan v. State of Gujarat (supra) quota is not so inter-locked with rota that where the former is expressly prescribed, the latter is impliedly inscribed". The quota rule does not inevitably invoke the application of the rotational rule of seniority. Even where a quota is prescribed for recruitment from different sources, there may be different modes prescribed for determining seniority of officers on entry into the cadre. In fact, right from 25th August, 1949 when the quota rule was introduced upto 22nd December, 1959, the seniority amongst Assistant Engineers and Assistant Executive Engineers promoted as Executive Engineers was governed not by the rotational rule by but the length of continuous officiation. It is therefore obvious that even where there is a quota rule governing recruitment to a cadre from different sources it is not necessary that there should be any particular rule of seniority. The Government may in its wisdom adopt an appropriate rule of seniority which may be based on length of continuous officiation or may follow a roster arranged in conformity with the quota rule so that seniority may be determined according to the rotation of vacancies under the quota rule. There may also be any other appropriate rule for determining seniority in a cadre. Indeed, as pointed out by Krishna Iyer, J. in N.K. Chauhans case, myriad ways can be conceived "for determining seniority of officers on entry into a cadre." But whatever may be the rule of seniority adopted by the Government, it is well settled that it must satisfy the best of equality enshrined in Articles 14 and 16 of the Constitution. The question in each case would be whether on the facts and circumstances of the case, the rule of seniority prescribed by the Government meets the challenge of the constitutional provision enacted in Articles 14 and 16.We have already pointed out that there is no inherent vice in the quota rule being operated through the rotational rule of seniority. Where the rotational rule of seniority is adopted, the relative seniority of promotees from different sources has to be determined on the basis of a roster maintained in accordance with the quota rule, so that when promotion of an officer is regularly made within his quota, he is fitted into the vacancy reserved for promotees from his source and his seniority is reckoned from the date when such vacancy arose. But this rotational rule of seniority can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be material but as pointed out by Palekar, J. in the Bishan Swarup Guptas case, "if there is enormous deviation, other considerations may arise". If the rotational rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed. The application of the rotational rule of seniority when there is large deviation from the quota rule in making promotions is bound to create hardship and injustice and result in impermissible discrimination. That is why this court pointed out in A. K. Subarmanss case that "when recruitment is from two or several sources, it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the Constitution ....... ..... It is the unreasonable implementation of the same which may, in a given case, attract the frown of the equality clause." The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. We agree wholly with the observation of D.A. Desai, J. in A. Janardh an v. Union of India that "the quota rule is linked with the seniority rule; if the first breaks down or is illegally not adhered to, giving effect to the second would be unjust, iniquitous and improper". This was precisely the reason why the Court in the first Bishan Sarup Guptas case held that with the collapse of the quota rule, the rule of seniority set out in Rule 1(f) (iii) also went.Now in the present case the record shows that there has been enormous deviation from the quota rule in the promotions of Assistant Executive Engineers and such deviation has continued from year to year over a period of almost 25 years. We have in an earlier part of this judgment adverted to the fact that as on 22nd December, 1959 t here was a short fall in the promotions of Assistant Executive Engineers to the extent of 86, because the quota rule had not been properly implemented from 1953 up to 22nd December, 1959 and promotions of Assistant Executive Engineers had not been effected according to the quota applicable to them. It is interesting to note that even after 22nd December, 1959, the quota was consistently breached from year to year except for four or five years and there was massive under recruitment of Assistant Executive Engineers with the result that as on 31st July, 1975, the cumulative shortfall in promotions of Assistant Executive Engineers was 206 while there was corresponding excess in promotions of Assistant Engineers to the extent of the same number. Though there was such large deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Asstt. Engineers upto 31st July, 1975, no attempt was made by the Government to set right this imbalance by stepping up the recruitment of Assistant Executive Engineers in the subsequent years so as to restore the balance in the composition of the cadre of Executive Engineers. On the contrary, the under recruitment of Assistant Executive Engineers continued uninterrupted and by the end of 1981 the short-fall in the promotions of Assistant Executive Engineers increased to 247 with corresponding excess in the promotions of Assistant Engineers. This enormous deviation from the quota rule on account of massive under recruitment of Assistant Executive Engineers has led to grave distortion and it is difficult to see how, in this situation, the rotational rule of seniority can be applied consistently with the mandate of equality enshrined in Articles 14 and 16. The rotational rule of seniority must obviously break down when there is such massive departure from the quota rule regularly from year to year leading to continuously increasing deficiency in pro motions of Assistant Executive Engineers and corresponding excess in promotions of Assistant Engineers.It is obvious that by reason of under-recruitment of Assistant Executive Engineers and over-recruitment of Assistant Engineers in breach of the quota rule over a period of almost 25 years, most of the Assistant Engineers having been promoted in excess of their quota would have to be pushed down to subsequent years when they could be absorbed within their lawful quota and many of them would have to wait for 7 to 12 years on an average before their promotions could be regularised by absorption within their quota. But, despite regularisation of their promotions after a wait of seven to twelve years, they would not be entitled to claim seniority over Assistant Executive Engineers promoted later in point of time because by reason of the application of the rotational rule of seniority based on the roster maintained in accordance with the quota rule, the Assistant Executive Engineers though promoted subsequently would be entitled to have their seniority reckoned from the date when the vacancy allocable to their quota arose. The Assistant Executive Engineers though promoted long after the regularisation of the promotion of the Assistant Engineers would gain seniority over such Assistant Engineers, because they would be fitted into the vacancies kept reserved for them and artificial seniority would be given to them on the fictional hypothesis that such vacancies were filled by them at the time when they arose. The result would be that Assistant Executive Engineers who were promoted years after the regularisation of the promotions of Assistant Engineers by absorption within their quota which regularisation also would have taken place after they had been working as Executive Engineers for a period of about 7 to 12 years would become senior to such Assistant Engineers even though at the time when they were promoted, such Assistant Engineers would have already been functioning as Executive Engineers for a number of years. The Assistant Executive Engineers promoted later in point of time would shoot up in seniority irrespective of the length of their service in the grade of Executive Engineers, by reason of the rotational rule of seniority based on the roster maintained in accordance with the quota rule. It is obvious that giving such artificial seniority to Assistant Executive Engineers promote d years after the regular promotions of Assistant Engineers would completely blight the promotional opportunities of such Assistant Engineers, because for promotion to the higher grade of Superintending Engineers, they would have to wait for consideration of their case until the Assistant Executive Engineers who are given artificial seniority over them are promoted, even though they would have put in a much longer period of service as Executive Engineers than such Assistant Executive Engineers. The point we are making would become obvious if we consider a few illustrative instances. Take, for example, the case of petitioner No. 1. He was promoted as Executive Engineers on 1st October, 1956 but since his promotion was out side the quota of Assistant Engineers, he had to be pushed down and he was ultimately absorbed within his lawful quota in 1962 and though he became a regular promotee within his quota since 1962, he was placed at serial No. 273 in the seniority list dated 14th August 1975 while many Assistant Executive Engineers promoted much later in point of time than 1962 were placed higher than him in seniority. The result was that he never got a chance for being considered for promotion as Superintending Engineer and he ultimately retired as Executive Engineer on 31st January, 1978. The case of petitioner No. 1 may now be contrasted with that of J.P. Singhal, who was recruited as Assistant Executive Engineer on 1st February, 1967 and who was promoted as Executive Engineer on 14th January, 1972. Though J.P. Singhal was not even in service at the date when petitioner No. 1 became a regular promotee Executive Engineer in 1962 and he was promoted as Executive Engineer almost ten years after the regular promotion of petitioner No. 1 by absorption within his quota, J.P. Singhal was placed in seniority at Sr. No. 113 while, as pointed out above, petitioner No. 1 was placed at Sr. No. 27 3 in the seniority list dated 14th August 1975, with the result that J.P. Singhal came to be promoted as Superintending Engineer on 15th February 1979 while petitioner No. 1 did not even have a chance of being considered for such promotion. Similarly we may also contract the case of petitioner No. 2 with that of R.A. Armugam. Petitioner No. 2 was promoted as Executive Engineer on 7th April, 1959 but since his promotion was not within the quota of Assistant Engineer, he had to be push ed down and he was ultimately absorbed within his quota in 1966 and though he was regularly promoted as Executive Engineer within his quota since 1966, he was placed at serial No. 396 in the seniority list dated 14th August, 1975 while R.A. Armugam who was recruited for the first time as Assistant Executive Engineer on 20th January 1971 and promoted as Executive Engineer only on 14th April, 1975 was placed higher in seniority at serial No. 260. Thus, the result of the application of the rotational rule of seniority was that R.A. Armugam who was not even in service at the date when petitioner No. 2 became a regularly promoted Executive Engineer and who was promoted as Executive Engineer 9 years after petitioner No. 2, acquired several places above petitioner No. 2 in seniority. It is not necessary for us to multiply instances where Assistant Executive Engineers promoted years after the regular promotion of Assistant Engineers have shot up in seniority above such Assistant Engineers by reason of the applicability of the rotational rule of seniority, with devastating effect on the promotional chances of such Assistant Engineers. Such instances are legion and, in fact, almost every Assistant Engineer has in the process suffered loss of seniority vis-a-vis Assistant Executive Engineers promoted years later in point of time. The application of the rotational rule of seniority has thus resulted in gross discrimination against Asstt. Engineers promoted as Executive Engineers, in so far as their opportunities for promotion to the higher grades are concerned. The seed of discrimination attracting the frown of the equality clause has germinated from the fact of regular undue deviation in actual implementation of the quota rule and obviously the deviation from the quota rule, the greater and more intense is the discrimination. We have already pointed out the enormity of the deviation from the deviation from the quota rule in the present case and this deviation continued from year to year for a period of over 25 years has considerably aggravated the discrimination against the Assistant Engineers.Now it is obvious that if Assistant Executive Engineers recruited at a young age are given artificial seniority several years above the Assistant Engineers who have already been pushed down 7 to 12 years before absorption within their lawful quota, they would get chances of promotion much earlier than the Assistant Engineers and once promoted, they being young in age would occupy the posts in the higher grades for a much longer period and that to a large extent block the chances of promotion of Assistant Engineers even when their turn comes for consideration though at a much belated point of time. If officers from two sources are promoted according to quota, then officers from both sources get promotion to posts in the higher grade on the basis of continuous officiating service in the grade, reckoned from the initial date of appointment subject, of course, to merit and this process goes on continuously due to progressive retirement of officers in the higher grades, such officers being of an appropriate higher ag e group. But if, as in the present case, relatively younger officers drawn from one source are given artificial seniority over older officers promoted from the other source, such younger officers would, by the reason of the artificial seniority g iven to them progressively occupy most of the posts in the higher grades and because they belong to a younger age group, they would block the promotional avenues open to the officers drawn from the other source. This disastrous situation h as occurred here because of the rotational rule of seniority and the result is that, as at the end of 1981, out of 101 Superintending Engineers 93 were from the source of Assistant Executive Engineers and so far as the higher cadre of Chief Engineers is concerned, all the 19th Chief Engineers were from the same source, namely, Assistant Executive Engineers, though in the grade of Executive Engineers, out of a total of 384 Executive Engineers, 103 only were from the source of Assistant Executive Engineers while 281 were from the source of Assistant Engineers. These statistics clearly highlight how discriminatory and unjust has been the application of the rotational rule of seniority to the Assistant Engineers.It was contended on behalf of respondent Nos. 4 to 190 that the under recruitment of Assistant Executive Engineers during the period from 1949 to 31st July, 1975 was due to the fact that the Government took the view, which of course was found erroneous by the court in A.K. Subramans case that the quota rule was to be applied only at the stage of confirmation and it was because a different view was taken in A.K. Subramans case, namely, that the quota rule was applicable at the stage of initial promotion in an officiating capacity to the grade of Executive Engineers and not at the time of confirmation that this imbalance in seniority took place. This contention is clearly unfounded but even if it were not so, it is entirely immaterial, because the constitutional validity of the rotational rule of seniority cannot depend upon what the government thought to be the correct position in regard to the applicability of the quota rule. The question whether the rot ational rule of seniority is constitutionally valid or not has got to be determined in the light of the interpretation placed on the application of the quota rule by the decision in A.K. Subramans case, because that must be accepted as the correct interpretation and in the context of that interpretation, the constitutional validity of the rotational rule of seniority must be judged. But, as pointed out above, we do not think this contention urged on behalf of respondent Nos. 4 to 190 is correct. We are not inclined to accept the submission of respondent Nos. 4 to 190 that under-recruitment of Assistant Executive Engineers took place because the government thought that the quota rule was to be applied only at the stage of confirmation. There is considerable material placed before the court to show that the government rightly understood the quota rule to be applicable at the stage of initial promotion but failed to strictly implement it. Paragraph 4 of the minutes of the meeting held on 14th May, 1968 in the office room of Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly emphasizes this position by stating that "the intake of Assistant Executive Engineers should be increased by considering 2/3rd of all the temporary and deputation posts in the grade of Executive Engineers and above in the department as permanent ones for the purpose of working out the strength at the junior scale." So also we find a categorical statement to the same effect in the letter dated 19th October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the Government of India, Ministry of Works and Housing a letter to which we have already referred earlier. The Government also took u p a positive stand in the affidavit in reply filed by P.B. Kulkarni in A.K. Subramans case where it was stated:"I submit that the quota rule is to be applied as and when vacancies in the grade of Executive Engineers are required to be filled but as already stated earlier, it has not been possible to apply this quota rule rigidly at the time of officiating promotions as promotions from the grade of Assistant Engineers have been in excess of their quota." (Emphasis supplied).It will thus be seen that the government was under no illusion in regard to the true position relating to the applicability of the quota rule. But the government deliberately resorted to the policy of under-recruitment of Assistant Executive Engineers because, as set out in the Note regarding Cadre Review of the Central Engineers Service Class I, prepared and submitted to the Government in June, 1978, it was felt that "it is not possible to recruit enough officers in Class I junior sc ale to fill up the quota at Executive Engineers level as it would worsen the promotion prospects of direct recruits to class I and make the service totally unattractive". The Note regarding Cadre Review also pointedA perusal of for m VI would indicate that in the next five years the annual recruitment would be of the order of 80 and in the subsequent five years it would be of the order of 40. According to the existing Rules, the vacancies in the grade of Executive Engineers are to be filled up by the promotion of Asstt. Executive Engineers (Group A) and Asstt. Engineers (Group B) in the ratio of 1: 1 Since the annual intake of Asstt. Executive Engineers is to be co-related with the vacancies that would be available in the grade of Executive Engineers, the annual intake of Asstt. Executive Engineers (CES GROUP A) would be 40 in the next five years and 20 in the subsequent five years. It has been already explained in para 2: 3: 6 that when the annual recruitment was less than 10, the direct recruits were able to reach the Junior Administrative grade in 10 to 11 years. When this was subsequently increased to 20 per annum the period taken for promotion has increased to 14 years which is likely to increase further if the annual intake is maintained at the same level. For this reason, it is not considered desirable to appoint direct recruits to C.E.S. Group A in large number. In the Indian Railways Service of Engineers, the recruitment to the Junior Scale in Group A is related to the number of posts at the level of Chief Engineer and above and the annual intake has generally been less than the number of posts of Chief Engineers. In the CPWD we have only 12 posts of Chief Engineers and it is, therefore, recommended that the annual intake to Junior Scale Class I thro ugh UPSC competitive Examination should be restricted to 10 only."There can be no doubt that the failure to recruit Assistant Executive Engineers in sufficient numbers, so that when vacancies in the grade of Executive Engineers allocable to the quota of Asstt. Executive Engineers arose from year to year, there would be Asstt Executive Engineers available for promotion to fill such vacancies, was responsible for the gross distortion which took place in the cadre of Executive Engineers over the years.We must in the circumstances hold that Rules 2(iii) and 2(iv) of the Rules of 1976 are violative of Articles 14 and 16 of the Constitution and they must be declared to be unconstitutional and void. It that be so, then obviously the seniority between Assistant Engineers and Assistant Executive Engineers regularly promoted within their respective quota must be determined by the length of continuous officiation in service in the grade o f Executive Engineers, subject to the qualification that in case of Assistant Engineers the length of continuous officiation shall be reckoned from the date when their promotion is regularised by absorption within their lawful quota.