Case: Jagmal Singh Yadav Vs. M. Ramayya and Others

This appeal by special leave is directed against the judgment of the Full Bench of the High Court of Delhi whereby the writ petition of the first twelve respondents was partly allowed. The appellant, who jointed service in the cadre of Assistant Engineers in the Central Engineering Service, Class II (Gazetted), was respondent No. 51 in the High Court. Other respondents in the High Court in similar position as that of the appellant have been impleaded here as respondents (16 to 110) and they are supporting the appellant through their counsel Mr. S.T. Destai. For the sake of convenience the appellant and the respondents 16 to 110 will be described heroin below as direct recruits in the C lass II Service. The Union of india, Engineer-in-Chief, C.P.W.D., and the Union Public Service Commission are respectively respondent Nos. 13, 14 and 15 and are represented by Mr. Gobindrespondents 1 to 12 (hereinafter to be referred to as the respondents) preferred an application in the High Court under Article 226 of the Constitution on 16th February, 1970, praying for certain reliefs which the High Court h as summarised under the following four heads:(1) That the confirmation of the direct recruits should be held as illegal.(2) That the respondents and other persons Who are similarly situated like them and who had joined the service earlier should be directed to be confirmed first according to the dates of their joining the service as Assistant Engineers after giving weightage in preference to the direct recruits.(3) That the appointment of 38 specified direct recruits should be held a s illegal.(4) That the respondents (13 to 15 herein) should be directed to. revise the classified list published in 1968.The Court has also noted that the respondents did not seek to disturb the appointments of the direct recruits already made and that their main contention was that they were entitled to be confirmed before those of the direct recruits who were appointed subsequent toappeal was heard by us in two stages. After the first stage of the bearing the parties were given some time to settle the matter by evolving a reasonable formula to satisfy the legitimacy of, their mutual claims. It, , however, appeared that they could not compose their differences and the alppeal was, therefore, finally heard andmay now briefly give the history of therespondents (who are the twelve writ petitioners in the High Court) are either graduates in Civil Engineering or possess similar requisite qualifications, namely, an Engineering Degree or an equivalent thereof. They were all initially appointed on different dates as temporary Section Officers in the Central Public Works Department (hereinafter to be referred to as the C.P.W.D.) in the subordinate Engineering Service, Class III (Non-gazetted). They were subsequently appointed on various dates between 18th October, 1958 and 8th January, 1963, "to officiate temporarily and until further orders" as Assistant Engineers i n the Central Engineering Service, Class II (Gazetted) (.briefly the Service). The appellant and the respondents 16 to 110 are what is described as direct recruits to the Service. Each of the direct recruits possesses a Degree in Engineer- ing or an equivalent thereof. Fifty eight of them were directly recruited as temporary Assistant Engineers in the Central Engineering, Service Class II (Gazetted) on dif- ferent dates between 12th May, 1961 and 13fix December, 1967, on the result of a competitive examination held by the Union Public Service Commission (UPSC). The remaining thirty eight also possess a Degree in Engineering or an equivalent thereof and they were directly recruited as temporary Assistant Engineers in the Service on different dates between 2nd November, 1964 and 7th November, 1967, but .without any competitive examination.By a Notification dated 13th June, 1967, excepting seven direct recruite (namely, respondents 11, 17, 29 and 31 to 34 in the High Court) the remaining respondents (respondents 4 to 37 in the High Court) were confirmed with effect from their respective dates of recruitment. The said confir- mations were also shown in a Classified list of Class II Engineering Gazetted Establishment (Civil) of the CPWD published in 1968. By another Notification of 1st May, 1968, direct recruits (being respondents 17, 33, 34, 38, 64 and 74 in the High Court) were also confirmed. Similarly by a Notification dated, 30th April 1971, other direct recruits (respondents 31, 32, 39, 43, 46, 50, 52 to 57, 60, 61, 63, 68, 69, 75, 76, 79, 82, 92 and 96 in the High Court) weregrievance of the respondents in the High Court was that although they were appointed as temporary Assistant Engineers much earlier than the direct recruits the latter were confirmed ignoring their claims. Their representations to the Government through their association having failed they approached the High Court. The respondents (13 to 15) denied their claim by means of a counter affidavit of Shri Kailash Prakash, Director of Administration, C.P.W.D. One of the direct recruits, Shri Durgadas Karna, also filed a counter affidavit opposing the claim of the respondents in the High Court. By consent certain documents were produced by the Government and after inspection relevant extracts from the files were submitted to t he Court by respectiveseveral contentions were urged before the High Court, some of them pertaining to Articles 14 and 16 of the Constitution, the High Court accepted the main contention of the writ petitioners that there was no determination of any quota by the Government since on the basis of the said quota the direct recruits obtained preference in the matter of confirmation and seniority. The High Court thus partly allowed the application and directed the respondents (respondents 1 to 3 in the High Court) "to consider the petitioners (re- spondents herein) for confirmation as Assistant Engineers and to adjust the inter se seniority of such of the petitioners as might be confirmed after consideration by the respondents in accordance with law".

Court's reasoning:
It is true that rule 23( 1 ) provides for recruitment by selection after consultation with the UPSC. The particular Departmental Promotion Committee (DPC) was presided over by a member from the UPSC. There is Home Ministrys O.M. No. 33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 asmade by Departmental Promotion Committees on which the Commission is represented should be treated as recommendations having the approval of the Commission, and the convention regarding acceptance of the advice of the Commission willare, therefore, clearly of opinion that the appointments of the respondents are in accordance with rule 23 in Part IV read with rule 3(b) of Part 1I of the Rules. We find that the above conclusion we have reached is supported by the stand taken on behalf of the Government in the Lok Sabha on 7th April, 1969, in answering certain Unstarred question with regard to recruitment to this Service, inter alia, under Partis, therefore, clear that the determination under rule 4(c) must be by the Ministry of Home Affairs at the relevant time and if a decision were taken by the Home Ministry under the Rules of Business under Article 77(3) of the Constitution the determination would be of the Government of India. There is nothing to show tha t there was any determination by the Home Ministry under rule 4(c). It is true that there was a proposal from the Ministry of Works &Housing to which concurrence had been given by the UPSC. After that there has been no further progress of the matter and Mr. Gobind Das concedes that there is nothing to show from the records at the disposal of the Government that the approval of the Home Ministry was given to any determination under rulefar as the records go the matter rested as above and there has. been admittedly no adherence to the quota rule, but on the other hand there has been flagrant violation of the rule. As a matter of fact, pari passu with the proposal there was even a request for relaxation and every thing appeared to be at that stage and for a number of years in the melting pot. This was perhaps possible only because the file with the proposal after the concurrence of the UPSC did not move to the Home Ministry for final determination under ruleis not possible to equate the minutes of the meeting of 16th June, 1962, with an appropriate order or determination by the Home Ministry. There is nothing to show that these minutes received the approval of the Minister-in-charge. We are, therefore, unable to accept the submission of Mrs. Pappu that there has been a determination, in fact, by the Government under rule 4(c).We have already held that respondents 1 to 12 were duly appointed under rule 23(1) of Part IV read with rule 3(b). They are, therefore, entitled to be considered for confirmation in the Service in Class. II. Since we have held that there was no quota rule, as sought to be made out, on the basis of which the confirmations have been made and seniority has been fixed, we agree with the High Court that it will be for the respondents (13 to 1 5) to consider the ease of the respondents (1 to 12) for confirmation and seniority in accordance with law. As the High Court has pointed out, the validity of the recruitment of the thirty eight direct recruits will, however, not beare not impressed by the submission of the appellant that there was no averment in the writ petition regarding absence of determination under rule 4(c) of the Rules. After a perusal of the pleadings and having regard to the stand taken by the parties before the High Court, we find that the submission has no force. Since the factum of determination of seniority was a live issue between the parties in the High Court, there was no error of jurisdiction on the part of the High Court in examining the whole matter thoroughly and in considering the documents filed by the respective parties after inspection of the files by consent. It is also necessary to observe that even for executive instructions the condition precedent is an appropriate decision by the competent authority and we are unable to hold that the High Court committed such a gross error of law in holding that there was no determination by the Government under rule 4(c) to call for interference under Article 136 of thealso do not feel justified in placing exaggerated importance on the use of the words "specified quota" in some of the correspondences relied upon by Mrs. Pappu and Mr. Desai. We are of opinion that such a reference to "specified quota" was only a usual way of a compendious expression to facilitate identification of the subject matter of the proposal of the Ministry of Works &Housing in the course of long correspondence between the several authorities.Mrs. Pappu also strenuously submitted that the High Court should have dismissed the writ application on the ground of inordinate delay. We are not satisfied that the writ application was liable to be dismissed on the ground of inordinate delay in the entire circumstances of the case and in particular when we find that the Government did not prefer any appeal against the judgment of the High Court even though the so-called determination of the Government under rule 4(c) had been struck down by the Highparting with the records we consider it proper to point out that persons entering Government service have the right to know where they stand with regard to their conditions of service and future promotion. Since there is no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively, subject to constitutionality, keeping in view justice and fair play to all concerned, it is a sorry sight to find that officers in the same Service fight over the year s in courts having failed to get redress from the Government. When officers are qualified to hold certain posts after recruitment, according to rules, and they have put in a number of years, without break, in the Service to the satisfaction of the authorities, it is impermissible to invoke a recondite rule and call it in aid to deprive a large section of officers of the benefit of their otherwise satisfactory service. The matter may be different when posts in the Service are abolished, appointments to the Service are transitory or fortuitous or incumbents are found unsuitable for absorption. The history of this Service is that temporary posts are first created and then after some years they are converted into permanent posts. The Government, therefore, cannot merely be an on-looker where it could rightly claim to be a legitimate arbiter on its own authority and having proper regard to all just claims. We also cannot help feeling that thinking in the Ministry has not always been uniform, sympathy waning or waxing from time to time for reasons not always manifest.As found above, the submissions of the appellant are devoid of force.