TaxTMI 
TaxTMI 
1990 (5) TMI 223
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....fficers, Sub-Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engineers. Rule 12(a) of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other officiating Deputy Engineers who started officiating later than 30.4.1960. Rule 13 speaks of officers "officiating in the erstwhile cadre of Deputy Engineers" and r. 27 of "officiating promotions" which are inconsistent with two-cadre theory. In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadre-wise but in each cadre, clearly indicating that the lists were different from cadres. In r. 8(1) of the 1960 Rules also the different groups were not described as different cadres. They were referred to as "categories" and what the re-organisation suggested was with reference to "lists" to be prepared. It will not, therefore, be right to equate the lists with cadres. It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all their relevant provisions are considered, they unmistakably lead t....
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....rbitrarily ignored. This, of course, may not prevent the Government from making slight deviations to meet the exigencies. If it is discovered that the rule has been rendered impracticable, it should be promptly substituted by an appropriate rule according to the situation. [925A-C] 3.3 In the present cases direct recruits were not available in adequate number for appointment, and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the State peremptorily required experienced and efficient hands. In the situation the State Government took a decision to frill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules. All the eligible candidates were considered and the opinion of the Public Service Commission was obtained. [925D-E] 3.4 If appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subsequently. The....
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....ntly the 1984 Rules were correctly framed and have to be upheld as legal and valid. [930A-B] 6. It is well established that the principles of res judicata are applicable to Writ Petitions. A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure, if the same has been earlier decided by a competent court by a judgment which became final. [932E; 933D-E] Daryao & Ors. v. State of U.P. & Ors., [1962] 1 SCR 574 and Forward Construction Co. v. Prabhat Mandal, (Regd.) Andheri & Ors., [1986] 1 SCC 100, relied on. & CIVIL APPELLATE AND WRIT JURISDICTION: Civil Appeals No. 194-202 of 1986. etc. Appeals by Certificates from the Judgment & Order dated 9.12.85/17.12.85 of the Bombay High Court in Writ Petition Nos. 620 of 1984, 2653 of 1984, 394 of 1985, 456 of 1985, 457 of 1985, 183 of 1985, 660 of 1984, 126 of 1985 and 154 of 1985 V.M. Tarkunde, M.C. Bhandare, R.N. Sachthey, S.B. Bhasme, V.A. Bobde, D. Dave, R. Karanjawala, Ms. Meenakshi Arora, Mrs. Manik Karanjawala, Jitender Sethy, S.V. Tambwekar, M.N.....
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....directed the recruitment to be made either by nomination from amongst the students of the College of Engineering, Pune or by promotion of officers holding inferior posts. The next Rules to which the parties in the present cases have made reference were those made by the resolution dated 21.11. 194 1 for determination of the seniority of the direct recruits and the promoted officers, containing only two rules out of which r. 1 admittedly is not relevant for the present purpose. Rule 2 said that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies. In 1960. detailed rules for recruitment to Class I and Class II Services were framed by a Government resolution dated 29.4. 1960. Learned counsel for the parties have referred to these Rules as the 1960 Rules and have made elaborate arguments with reference to some of the provisions. In place of nomination from the successful students of College of Engineering, Pune as direct recruits, these Rules prescribed for a competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing a ratio o....
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....tant. It said that the seniority list in each cadre in Class I and Class II shall be prepared in two parts--one for the confirmed officers and other for those who were not confirmed; and that the confirmed officers would be treated as senior to the unconfirmed officers. Since the direct recruits were all appointed against the permanent posts, they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer's posts. These Rules were amended in 1972, but there was no departure from the main scheme and the principle governing seniority. 4. In pursuance of the 1970 Rules seniority lists were prepared leading to the filing of several cases which were ultimately disposed of by this Court in S.B. Patwardhan and others v. State of Maharashtra and others, [1977] 3 SCR 775. Patwardhan, the appellant in that case, was promoted temporarily as Deputy Engineer in 1959 and was confirmed after the coming in force of the 1970 Rules. The respondents No. 2 and 3 who were directly appointed as Deputy Engineers later were, in view of the Rules, shown as senior to Patwardhan. Patwardhan challenged the vali....
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....ed by the direct recruits challenging the validity of the 1978 Rules mainly on the ground that the Rules omitted to fix proportionate quota for the direct recruits and the promotees. The two cases were disposed of by a common judgment upholding the validity of the 1978 Rules, striking down r. 6(iii) of the 1960 Rules, and issuing appropriate directions for reversion of the illegally promoted direct recruits as also for preparation of seniority lists in accordance with the judgment in Patwardhan's case. Kulkarni, one of the direct recruits, in representative capacity, challenged the judgment before this Court in S.L.P. No. 8064 of 198 1 which was dismissed on 29.10.1981. On the same date S.L.P. No. 9161 of 1981, filed by one Samtani was also rejected. A special leave petition by the State Government was also dismissed later. One of the direct recruits J.H. Bhatia, who was admittedly represented by the petitioner in S.L.P. No. 8064 of 1981, filed an application under Article 32 of the Constitution before this Court on 1.2. 1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which has been registered as W.P. No. 1327 of 1982 and is being disposed of by the present judgment.....
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....rs who may be eligible for such promotions in accordance with rules or orders made by Government from time to time during the specified period." Rule 4; .dealing with the promotion of Assistant Engineers and Deputy Engineers in vacancies in the cadre of Executive Engineers was in similar language. Section 2(h) defined "fortuitously appointed" in the following terms: "fortuitously appointed" means appointed in any vacancy which, according to rule 4 or 9, is not allocated for the class of officers to which the person appointed in that vacancy belongs;'' These rules were challenged in Writ Petitions No. 955 and 956 of 1983, filed respectively by promotee Deputy Engineers Dafle and Kamtkar, and by promoted Executive Engineers Lele and Panse (hereinafter mentioned as Dafle-Lele case) before the Bombay High Court and were struck down as illegal. The High Court further ordered the State to carry out the directions given in Bagayat Patil's case (W.P. No. 3483 of 1980). None 'of the Engineers came to this Court against this judgment, except the State Government in S.L.P. Nos. 1661415 of 1983 which also have been heard by us. However, the prayer for stay was rejected. The result is that th....
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....the promotees pointed out before this Court the game of the direct recruits, a direction was issued for hearing of all the cases at Bombay. Accordingly aH the 15 writ applications were transferred and heard together at Bombay. The High Court rejected the case of the direct recruits and dismissed the writ petitions. The petitioners in 9 of them have challenged the judgment in Civil Appeals No. 194-202 of 1986. 12. The main argument on behalf of the direct recruits has been addressed by Mr. V.M. Tarkunde, who represents the appellants in the Civil Appeals and the writ petitioners in W.P. No. 1169 of 1986. The learned advocates in some of the other writ cases and two of the writ petitioners in person made supplementary arguments. It has strenuously been contended that the 1978 Rules, 1982 Rules, 1983 Rules and the 1984 Rules are invalid and must be struck down. The judgment in Dafle-Lele case has also been challenged. The cases were earlier heard for sometime by a Division Bench when the Bench referred the matter to be dealt with by a larger Bench for examining the correctness of the decision in Patwardhan's case. 13. When the cases were taken up for hearing before us, it was faintl....
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....rules, but they continuously worked for long periods of nearly 15-20 years on the posts without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service. 14. Mr. Tarkunde in the course of his argument made it clear that he was not questioning the ratio in Patwardhan's case but was challenging the judgment therein as erroneous on the ground that the posts of temporary Deputy Engineers held by the promotees were not in the cadre of the Deputy Engineers, which included only permanent posts, and this position was not correctly appreciated there. The argument is that since the permanent posts held by the direct recruits and the temporary posts which the promotees were allowed to officiate did not form a single cadre, there could not arise any question of interse seniority amongst them. ....
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....t is that the permanent Deputy Engineers and the officiating Deputy Engineers were in two cadres and as the officiating Deputy Engineers could not be treated to be included in the permanent cadre having only permanent posts, they were not entitled to compete with the direct recruits in the matter of seniority. It is true that initially the cadre consisted of only permanent posts. The promotees, however, claim that the additional posts were subsequently added to the cadre and no new cadre was formed. 16. Great emphasis was laid by Mr. Tarkunde on the language of certain rules on the basis of which it was urged that the cadre of the permanent Engineers was higher in rank than that of the officiating Engineers, who had to be further promoted for becoming members of the said cadre. Rule 8(i) of the 1960 Rules, which was relied on for this purpose, reads as follows: "8(i) The Sub-Divisional posts in the Department are; at present, manned by direct recruits to Bombay Service of Engineers, Class II cadre, Deputy Engineers confirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruited by the Bombay Public Service Commission, officiating Deputy Engineers and sim....
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....ntion only 4 cadres in Class II--namely, those of SubDivisional Officers, Sub-Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engineers. Rule 12(a) of the 1970 Rules expressly includes some of the officiating Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other officiating Deputy Engineers who started officiating later than 30.4.1960. Rule 13 speaks of officers "officiating in the earthwhile cadre of Deputy Engineers" and r. 27 of "officiating promotions" which are inconsistent with two-cadre theory. In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadrewise but in each cadre, clear indicating that the lists were different from cadres. In r. 8(i) of the 1960 Rules also the different groups were not described as different cadres. They were referred to as "categories" and what the re-organisation suggested was with reference to "lists" to be prepared. It will not, therefore, be right to equate the lists with cadres. It is true that the Rules have not in express language stated that the officiating posts also will be in the cadre but if all the....
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....completed the seven years' period after their confirmation as Deputy Engineers and the period for which they had been officiating as such was not available to them for the purpose. Their contention was "that under the rules in force the respondents who were in substantive rank of Overseers were only officiating Deputy Engineers and that as they did not belong to the cadre of Deputy Engineers they were not entitled to promotion inasmuch as they had to put in after confirmation as Deputy Engineers 7 years of actual service before being eligible for promotion as officiating Executive Engineers". The arguments were addressed with reference to several rules including r. 8, and this Court while rejecting the stand of the direct recruits observed thus: "In our view it is the list of such persons that is referred to in cl. (ii) of rule 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 service who is already promoted whether as an officiating or temporary or permanent incumbant. If cl. (i) of r. 8 provides that Class 11 cad....
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.... and it was pointed out that unless the pre-selection service as officiating Deputy Engineer of direct recruits was excluded for reckoning the 7 years experience, it would create two classes amongst the same group of direct recruits and result in discrimination against those direct recruits who had no such pre-selection service to their credit. The decision has to be understood in this background and it cannot be of any help to the present appellants. 18. Even on an independent consideration of the provisions of the Rules, the relevant materials and the arguments addressed on behalf of the parties, we are of the view that the temporary posts of Deputy Engineers against which promotees officiated, did not form a separate cadre and were additions to the main cadre. These temporary posts were created in pursuance of several resolutions of the State Government and an examination of their language is helpful in resolving the controversy. The resolution No. ENH-1062-C, dated 8th November, 1962 (Ext. 'A' at page 277 of Vol. V of the paper book) after referring to the sanction accorded by the Government for creation of the temporary posts stated, "The posts of Executive Engineer and Deput....
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....atio of the direct recruits and the promotees in the Deputy Engineers cadre; and it was urged that the question of seniority must be settled with reference to the time when posts became available to the promotees in accordance with the said quota rule. Merely for the reason that the promotees were allowed to officiate on the temporary posts in excess of their quota they cannot be permitted to steal a march over the genuine claimants to the posts namely, the subsequently appointed direct recruits. Repelling the stand of the respondents it was argued that the quota rule never collapsed and remained operative and was confirmed by the decision in Patwardhan's case. About the rule applying at the stage of appointment and not at the stage of confirmation, as was held in the said judgment, it was suggested that the observations cannot be legitimately interpreted as setting the officiating Deputy Engineers free of the principle of quota. It meant, according to the learned counsel, that if an officer was promoted within his quota, the rule would be applicable with reference to the date of promotion and not the date of confirmation, but where his promotion was in excess of the permissible qu....
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....ording to the demand of the exigencies, by using the expression "as far as practicable". The case of the appellants is that the said expression was inserted in the Proviso with the object of avoiding fractions in arithmetical calculations of number of posts available to the two groups, and for no other purpose. We do not see any reason to so restrict the scope and meaning of the expression "as far as practicable". A similar expression in identical terms used in certain other rules came up for consideration in N.K. Chauhan and Others v. State of Gujarat and Others, [1977] 1 SCR 1037, and it was held that if it became nonfeasible and impracticable for the State to fill up the requisite quota by direct recruits after making a serious effort to do so, it was free to fill the posts by promotion of suitable hands, if the filling up of the vacancies was administratively necessary and could not wait. Similar is the position here, and the r. 1 of the 1960 Rules must be held to be realistic and flexible, true to life rather than abstractly absolute. It was strenuously contended by Mr. Tarkunde and was reiterated by the other learned counsel that the State Government erred in promoting the of....
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....enforce the same. The learned counsel appears to be right. 21. It has, however, been rightly suggested on behalf of the appellants that when recruitment is from more than one source, there is no inherent invalidity in introducing quota system, but as was observed in Subraman's case (supra), the unreasonable implementation of such a rule may attract the frown of the equality clause. Further, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority. It ought to be strictly followed and not arbitrarily ignored. This, of course, may not prevent the Government from making slight deviations to meet the exigencies. If it is discovered that the rule 'has been -rendered impracticable, it should be promptly substituted by an appropraite rule according to the situation. The question, however, is as to what is the conclusion if the quota rule is not followed at all continuously for a number of years, after it becomes impossible to adhere to the same. Admittedly in the present cases direct recruits were not available in adequate number for appointment, and appropriate candidates in the subordinate ra....
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.... as operative and binding. The unavoidable situation brings about its natural demise, and there is no meaning in pretending that it is still vibrant with life. In such a situation if appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the Service subsequently. The later appointees may have been young students still prosecuting their studies when the appointments from the other source take place--and it is claimed on behalf of the respondents that this is the position with respect to many of the direct recruits in the present case--and, it will be highly inequitable and arbitrary to treat them as senior. Further, in cases where the rules themselves permit the Government to relax the provisions fixing the ratio, the position for the appointees is still better; and a mere deviation therefrom would raise a presumption in favour of the exercise of the power of relaxation. There would be still a third consideration relevant in this context: namely, what is the conclusion to be drawn from deliberate cont....
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....gment in the Gupta's case reported in [1975] 1 SCR 104, were stated at page 113E-F thus: "It is necessary to remember, however, in this connection that all these officers had been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had not been determined. It was thereby implied that orders about seniority could only be passed after the department was in a position to take a decision with regard to the inter se seniority between the promotees and the direct recruits. That being the situation of all these officers, they could hardly contend that the dates of appointments will not be altered for the purposes of determining seniority." The decision was later considered in P.S. Mahal and others v. Union of India and Others, [1984] 3 SCR 847, and the analysis given at pages 877E-880 clearly indicates that the decision has to be understood in the background of the facts therein and cannot have a universal application irrespective of the situation. This judgment as well as the decision in Badami's case (supra) were rightly distinguished in Patwardhan's case at page 797. 27. It has also been alternatively argued on behalf ....
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.... basis of the quota rule as an additional contention was not pressed in Patwardhan's case and so there was no occasion for this Court to deal with the same. The observations referred to by Mr. Tarkunde were made in a different context altogether. If it be assumed that this argument was constructively involved in the Patwardhan's case, then it follows that the same must be deemed to have been overruled. The case clearly, in unambiguous terms, rejected the claim of the direct recruits for seniority over the promotees. The appellants by trying to interpret a part of the observation made in the judgment in a different context, in an artificial and uncalled for manner, are suggesting that the judgment is self-contradictory, but we do not find any justification for such an inference. 28. Still another point confined against a certain category of the officiating Deputy Engineers who were not included in the frozen cadre under the 1970 Rules was attempted. The contention is that the expressions "all the promoted Deputy Engineers" and "all directly recruited Deputy Engineers" used in Patwardhan's case should be given restricted meaning, so as not to include those officiating Deputy Enginee....
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.... in the Civil Appeals as amounting to Unjustified concessions in favour of the promotees. Since we have not gone by the stand taken on behalf of the State of Maharashtra before us during the argument, and our decision is based on a consideration of the merits of the different questions argued by the parties and not on any concession, we do not consider it necessary to deal with Mr. Bhasme's argument at any length. We hold that the rr. 4 and 9 of the 1982 Rules were tightly struck down and consequently the 1984 Rules were correctly framed and have to be upheld as legal and valid. 31. Mr. Tarkunde took great pains in analysing the practical effect of the judgment in Patwardhan's case with which we agree and contended that the direct recruits shall suffer seriously if the present Civil Appeals, Writ Petitions and the Special Leave Petitions are not allowed. Mr. Singhvi challenged the figures worked out on behalf of the appellants. We do not consider it necessary to go into this controversy as it cannot be denied that as a result of Patwardhan's case and on dismissal of present cases a large number of promotees have to be treated as senior to the direct recruits, and in that sense the....
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....vember 1956. This list was confirmed by the decision in Patwardhan's case (vide page 800G of the judgment as reported in [1977] 3 SCR 775). It has been stated in his petition that although some junior officers were promoted as Executive Engineers earlier, his promotion was delayed and took place in October 1973. He has not given the details in this regard or the names of the junior officers who superseded him. He was not considered eligible for promotion as Executive Engineer earlier as he had not completed 7 years' service as required by the 1960 Rules. He has not impleaded those who have superseded him and has not made any specific prayer in this regard. Besides, in view of the decision in P.Y. Joshi's case (supra) he could not have claimed promotion before completing 7 years of service. We do not find any merit in either of the two writ petitions-W.P. No. 5187 of 1983 and W.P. No. 8594 of 1983--pressed by Mr. Bhandare. 35. Writ Petition No. 1327 of 1982 was argued by J.H. Bhatia, the petitioner, in person. He was directly recruited as Deputy Engineer Class II in July 1959 and has challenged the constitutional validity of the 1978 Rules. Mr. Singhvi, the learned counsel for the ....
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....ided by the Constitution and cannot be permitted to be circumvented by a petition under Article 32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea as was observed at page 595 of the reported judgment, thus: "We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same." The decision in Forward Construction Co. and others v. Prabhat Mandal (Regd.), Andheri and Others, [1986] 1 SCC 100, further clarified the position by holding that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata und....
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....officiation in accordance with the judgment. The petitioner contends that the judgment in Patwardhan's case cannot be interpreted to have struck down the 1941 Rules and the claim of the direct recruits appointed prior to the coming in force of the 1960 Rules must be upheld in view of the provisions of r. 2 of the 1941 Rules. The 1941 Rules contained only two rules which are quoted below: "1. In the case of direct recruits appointed substantively 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 theft confirmation in those vacancies." 39. Mr. Singhvi replied by saying that r. 2, aforementioned, when properly understood, does not help the petitioner at all, inasmuch as the rule refers to substantive vacancies and not permanent appointments., and substantive vacancies can arise even in temporary posts. Reliance was placed on the observations in Baleshwar Dass' V. [1981] 1 SCR 449. However, we do not c....
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....rson and filed a note of his argument in the shape of an affidavit. He has not raised any additional ground, and it is not necessary to discuss his case any further. 936 42. The two petitioners in Writ Petitions No. 3947-48 of 1983 are Executive Engineers in the Irrigation Department of the Government of Gujarat. Although the case was initially filed through advocates, at the hearing on a request by them the petitioner No. 1 was allowed to argue the case in person on their behalf. Besides impleading the State of Gujarat, the Government of Maharashtra and the Union of India as respondents No. 1, 2 and 3 respectively, H.N. Shah, another officer of the same Department, was, made a party as respondent No. 4 in the writ petition. The case of the petitioners is that the respondent No. 4 was junior to them and was erroneously treated as senior in the seniority lists for the period 1.11.1956 to 30.4.1960 prepared in accordance with the 1978 Rules. The writ petition states that the petitioners were in Subordinate Engineering service of the former State of Bombay when they appeared at the competitive examination held for direct recruitment and were appointed Deputy Engineers. At the same e....
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....ment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. 938 (E) Where the quota rule has broken down and the appointments are made fro....