TaxTMI 
TaxTMI 
1974 (12) TMI 71
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....recruited as Assistant Executive Engineers in Class I and were promoted to the grade of Executive Engineer between the period March 11, 1957 and February 23, 1966. The appellants in Civil Appeals Nos. 1745 of 1974 and 1746 and 1747 of 1974, who were recruited directly to Class 11 as a result of competitive examination in which they had failed to secure requisite marks for being selected for Class 1, are also confirmed Assistant Engineers in Grade II and have been officiating as Executive Engineers in Grade I. They have obtained special leave against the Full Bench judgment of the Delhi High Court in their writ petitions under Article 226 of the Constitution decided by a common judgment of 20th May, 1971. Since a common question of law is involved in all these matters, this judgment will govern all the above matters. We will, therefore, include the appellants also in describing them as petitioners in this judgment. The Service with which we are concerned is the Central Engineering Service, Class I. According to the Central Engineering Service, Class 1, Recruitment Rules (briefly the Rules) framed in the year 1954 by S.R.O. 1841 dated May 21, 1964, which are admittedly similar to th....
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....% and 25%, was later altered to 66-2/3% and 33-1/3% in 1956 and with effect from April 1, 1972, the percentage has come to be 50:50 for a period of seven years. According to the petitioners prior to their promotion as Excise Engineers the petitioners and respondents 4 to 66 were holding interchangeable posts, the nature of work, responsibilities, powers and duties discharged by all of them being the same and subsequent to their promotion all these and the pay scales were identical in every respect. Prior to the promotion, however, the pay scale of the petitioners was different from that of the Assistant Executive Engineers who were already in Grade 1. The Assistant Executive Engineers are directly recruited to Grade I by competitive examination and sometimes Assistant Engineers (Class 11) are also recruited by the same competitive examination to Class 11 when they cannot quality with the requisite marks to obtain entry in Class I Services. Besides, Class III Officers are also promoted to Class 11. In order, therefore, to give incentive of promotion to employees in Class II, who have already gathered experience in the service, a certain percentage of quota is reserved for their pro....
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....s Assistant Executive Engineer, Class 1. (2) Recruitment by promotion to the Grade of Executive Engineer, Class I shall be made by selection from among permanent Assistant Engineers in the Central Engineering Service, Class 11, after consultation with the Commission. No officer shall have any claim to such promotion as of right. (3) No Assistant Engineer shall be eligible for promotion to the Service, unless he- (a) would, but for age, be qualified for admission to the competitive examination under Part III of these Rules. (b) has rendered at least three years' services in a permanent or temporary capacity as an Assistant Engineer and subordinate under the Central Government; and (c) satisfies the Commission that he is in every respect suitable for appointment to the Service. 4. It shall not be necessary to consult the Commission, under this rule, in the case of any person, if the Commission had been consulted in connection with his temporary promotion to the Service. The learned Solicitor General draw& our particular attention to rule 23 (2) which provides that recruitment to the grade of Executive Engineer (Class 1) has to be made by selection from amongst permanent As....
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...., been decided in consultation with the Union Public Service Commission that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the General Principles annexed hereto". "The instructions contained in the various office Memorandum cited in paragraph I (including that of June 22, 1949) above are hereby cancelled, except in, regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum. The revised General Principles embodied in the Annexure will not apply with retrospective effect, but will come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from (sic (for?) which revised principles are to be adopted for purpose of determining seniority has already been or is hereafter agreed to by this Ministry". It is, therefore, clear that so far as the petitioners are concerned the Memorandum of December 22, 1959, is not attracted. On the other hand the Memorandum of June 22, 1949, will clearly apply (See Union of India and ....
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....ity cannot arise. It is further submitted that having regard to the nature of the scheme the rules provide that the grade of Assistant Executive Engineer will consists exclusively of young men of merit proved by competitive examination who will quickly after the necessary training have promotion to the posts of Executive Engineer and above. In the context of that scheme rule 4 (2) requires 66-2/3 % vacancies to be filled by the Assistart', Executive Engineers and "the rest" by promotion of the Assistant Engineers or by transfer. We are not concerned with transfer from other service in this case. It is also contended that the rule clearly gives preference to the extent of 66-2/3% to the Assistant Executive Engineers. It is only after their appointment to the extent of 66-2/3% that "the rest" comes into existence. The argument proceeds that it is only on confirmation and absorption of Assistant Engineers in Class I that the question of relative seniority between them and Assistant Executive Ercincers promoted as Executive Engineers can arise. It is strenuously contended that an Assistant Engineer officiating as Executive Engineer cannot be senior to an Assista....
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....ative seniority of direct recruits and promotees and observed as-follows "The rotational system is, therefore, firstly justified by rule 4 (2) itself. Even if it is assumed for the sake of argument that rule, 4(2) is silent about the rotational system, then the administrative instructions make it clear that the quota system in rule 4(2) has to be worked out only by the rotational system and not in any other manner". The High Court further held as follows "The case of Shri Ojha (appellant in Civil Appeal NO. 1745 of 1974) is that because he was officiating as an Executive Engineer Class started officiating Shri Ojha was entitled to but against the other respondents also. This stand is contrary to the last part of rule 4(2) which compels the Government to fill the vacancies in the grade of Executive Engineers Class 'I strictly by rotation system implementing the quota rule. Our conclusion on question No. 1, therefore, is that the earlier confirmation and the higher seniority given to the respondents are legal both according to the statutory rule 4(2) and according to the administrative instructions". The administrative instruction which is referred to in the....
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.... the grade of Assistant Executive Engineers and/or Assistant Engineers are initially made in an officiating capacity against the available vacancies,the avail able vacancies obviously being in the permanent and temporary posts in the grade of Executive Engineer. Paragraph 23 of the same Affidavit-in- reply at page 257 of the record is also to the same effect "I say that there are permanent and temporary posts sanctioned in the-grade of Executive Engineer". It is, therefore, clear that the cadre of Executive Engineer consists both of permanent posts and temporary posts. Even from the statement of sanctioned strength of Engineering Officer Class 1, Central P.W.D., from 1960 to 1972 filed by the Solicitor General in the course of argument it is apparent that the cadre includes both permanent and temporary posts. Whenever therefore, a vacancy arises in a permanent post or in a temporary post it would be a vacancy in the grade of Executive Engineer and the quota rule for promotion would apply. The above conclusion at which we have reached is reinforced also by a reference to rule 2 of section 6 in Chapter V at page 31 of the C.P.W.D. Manual, Volume 1 (1970 edition) (hereinafte....
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.... the same chapter deals with the subject of confirmation clearly recognising the distinction between promotion and confirmation. Rule 4 of section 7 at page 48 also makes a clear distinction between promotion and confirmation. Rule 9 of the same section at page 50 lays down the procedure for promotion to the selection posts and this procedure has clearly no application in cases of confirmation. It was this procedure which was apparently followed when the petitioners and respondents 67 to 118 9 90 were promoted as officiating Executive Engineers from the grade of Assistant Engineer. Then rule 12 of section 7 at page 52 lays down that in order to be eligible for promotion as Superintending Engineer an Executive Engineer promoted from Class I Service would have to, put in "7 years' service in the grade of Executive Engineer". Similarly an Executive Engineer promoted from Class II service also has to put in "7 years' service in the grade of Executive Engineer'. Thus once an Assistant Engineer is regularly promoted to officiate in the grade of Executive Engineer, there is no further restriction under the rules in his next jump to the grade of Superintending En....
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.... page 46 and rule 1 1. of section 7 at page 57 of the Manual. The quota rule which on the plain language of the last paragraph of rule 4(2) is to be applied at the stage of promotion must, therefore, be given effect to at the point of time when Assistant Engineers and Assistant Executive Engineers are promoted as officiating Executive Engineers and not at the stage of their confirmation. It is submitted by the respondents that one-third quota cannot be filled unless the two-third quota was exhausted. This, in our view, will introduce sterility in the quota rule so far as the promotees are concerned. Their hopes and aspirations cannot be related to the availability or non-availability of the direct recruits to fill the two third quota. Each quota will have to be worked independently on its own force. The word "rest" in the quota rule cannot be pressed into service to defeat the object of the rule coming in aid of advancement of prospects of promotees in the hierapchy by of the Service. It may be pointed out that even in the case of recruitment to the cadre of Income Tax Officer, Grade II, Class 1, the, letter of the Government of India dated September 29, 1944, which fix....
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....gineers are promoted even if it be in an officiating capacity to fill vacancies in the grade of Executive Engineer irrespective of whether the vacancies are in permanent posts or temporary posts. But then the question may arise as to how the quota rule is to be applied. Here again we find that guidance is afforded by the decision of this Court in Bishan Sarup Gupta's case (supra). Paragraph 14 of the judgment in that case deals with this very question vis-a-vis recruitment to the cadre of Income Tax Officers, Grade 11, Class I "On the other hand, the contention on behalf of the direct recruits is that the real intention of the rule was to secure that at any given moment the service must consist of direct recruits and promotees in the proportion of 2:1. If, for example, in any year 50 direct recruits were appointed, than not more than 25 promotees could be appointed in that year. If also no direct recruit was appointed in a year there could be no appointment of promotees. This line of argument has been accepted by the High Court and it was substantially on that ground that the seniority list prepared on July 15, 1968, has been set aside and directions given for preparing a....
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....fficers Grade 11, Class 1, in Bishan Sarup Gupta's case (supra). This Court pointed out in that case as follows at page 8 "If there were promotions in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time. They can be regularised by being absorbed in the quota for the later years. That is the reason why this Court advisedly used the expression "and onwards" just to enable the Government to push down excess promotions to later years so that these promotions can be absorbed in the lawful quota for those years". The same procedure will have to be followed in the present case. Whenever it is found that Assistant Engineers were promoted as officiating Executive Engineers in excess of their quota they would have to be pushed down to later years in order that their promotion may be regularised by being absorbed in their quota for later years. 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 violat....