CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1260/73
(From the Judgment and Order dt. 5.11.71 of the Delhi High Court in C.W.P. No. 238 of 1970) Mrs. Shyamala Pappu and Ashok Kumar Grover for the Appellant
M.C. Bhandare, D.N. Mishra and O.C. Mathur, for Respondents Nos. 3 & 4 G.D. Gupta, for Respondent No. 8. Gobind Das and Girish Chandra for Respondent No. 13
S.T. Desai, Urmila Kapoor and Miss Kamlesh Bansal for Respondents Nos. 55, 64, 75, 80 & 89. Judgment of the Court was delivered by
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 Class 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. Gobind Das.
The respondents 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 has 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 as illegal.
(4) That the respondents (13’ to 15 here-
in) should be directed to. revise the classi-
fied list published in 1968.
The Court has also noted that the respondents did not seek to distrub 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 to them.
This appeal 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, therfore, finally heard and concluded. We may now briefly give the history of the litigation.
The respondents (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 in 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 Engineering or an equivalent thereof. Fifty eight of them were directly recruited as temporary Assistant Engineers in the Central Engineering, Service Class II (Gazetted) on different 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 confirmations 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) were confirmed.
The grievance 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 the Court by respective parties.
Although serveral 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 (respondents 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".
It is clear that if the High Court is right that there was no determination by the Government under rule 4(c) of the Recruitment Rules, to which we will refer presently, apportioning quota amongst the officers recruited through different sources it will not be necessary to go into the other questions raised by Mrs. Pappu for the appellant. If we find that the High Court is wrong in its conclusion on this main point, we will have to remand the matter tO the High Court for decision with regard to the other submissions which had not been dealt with by it. We will, therefore, take the first point first. Mrs. Pappu submits as follows :-
First, in the absence of a plea in the writ petition that the Home Ministry’s approval is necessary the High Court exceeded its jurisdiction in going behind the determination of the quota made under rule 4(c), particularly in the absence of any special mode of determination prescribed under the Rules. Second, she submits that the High Court failed to notice that it was open to prescribe quota by way of executive instructions in the absence of any rules in this behalf. Third, she submits that even assuming the High Court could enter into such an enquiry there is ample evidence on record to show that a determination has been made under rule 4(c).
The persons with whom we are concerned in this appeal are governed by the Central Engineering Service, Class II, Recruitment Rules (briefly the Rules) which were published on 21st May, 1954. There are six Parts in these Rules. Part I (General) provides the definitions. Part/I deals with the methods of recruitment. Rule 3 with which this Part opens provides as follows :--
"3. 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 direct appointment in accordance
with Part IV of these Rules of persons se-
lected in India otherwise than by competitive
examination.
(c) By promotion in accordance with Part V of
these Rules.
(d) By transfer in accordance with Part VI of
these Rules."
Rules 4 and 5 may also be noted:
"4. (a) All appointments to the Service or
to posts borne upon the cadre of the Service
shall be made by the Government.
(b) No appointment shall be made to the
Service or to any post borne upon the cadre of
the Service by any method not specified in
Rule 3.
(c) Subject to the provisions of sub-rule
(b), the method or methods of recruitment to
be employed for the purpose of filling any
particular vacancies in the Service or such
vacancies therein as may be required to the
filled during any particular period and the
number of candidates to be recruited by each
method shall be determined by the Government.
5. Appointments to the Service made
otherwise than by promotion will be subject to
orders issued from time to time by the Minis-
try of Home Affairs regarding special repre-
sentation in the Services for specific
sections of the people’."
Part III provides for recruitment by competitive examination which is the method provided in rule 3(a). We are not concerned with the details in this Part except to note that the examination is conducted by the UPSC and the requisite qualifications and age restrictions and relaxation are provided for in this Part. We may also note that Rule 21 of this Part provides that the selected candidates shall be appointed as Assistant Engineers on probation for two years and on the completion of the period of probation, if considered. fit for permanent appointment, they will be confirmed in their appointments. There is a provision for extending the period of probation under rule 21(c). We need not notice other details in this Part.
Part IV deals with recruitment by selection. Rule 23 with which this Part opens provides as follows:
"23. (1) Recruitment by selection shall be
made from among Temporary Engineers and Tempo-
rary Section Officers employed on the Civil,
Engineering side of the Central Public Works
Department after consultation with the Commis-
sion:
Provided that it shall not be neces-
sary to consult the Commission, in the ease of
any person, if the Commission were consulted
in connection with his temporary appointment
to the Service.
(2) No person shall be eligible for selec-
tion under subrule (1) unless he would, but
for age, be qualified for admission to the
Service under Part III of these rules, and his
age at the time of appointment to the Service
is not more than 40 years.
(3) Merit shall be the primary considera-
tion in determining a person’s fitness for
selection under this rule and no officer
shall have any claim to appointment under this
rule as of right."
Part V deals with recruitment by promo-
tion and contains a solitary rule, namely,
rule 24, which reads as follows :--
"24. Recruitment by promotion shall be made
by selection on the basis of merit from among
permanent Section Officers employed in the
Civil Engineering side of the Central Public
Works Department."
Part VI deals with recruitment by trans-
fer of an officer in Government service and
there is a solitary rule, namely, rule 25,
which takes care of this type of recruitment
by transfer. We are not concerned with this
rule in this appeal.
From a perusal of the Rules it is clear
that there are four methods of recruitment,
namely--
(1) recruitment by competitive examination
(Part III);
(2) by direct appointment otherwise than
by competitive examination (Part IV);
(3) by promotion (Part V); and
(4) by transfer (Part VI).
It is also clear under rule 4(b) that no appointment shall be made to this Service or to any post borne on the cadre of this Service by any method other than the above mentioned four methods.
The direct recruits belong to two categories of officers. Fiftyeight persons were recruited under rule 3(a) by competitive examination. The remaining thirty eight persons were also directly recruited as temporary Assistant Engineers but without any competitive examination and, according to the respondents, "on an ad-hoc basis". So far as the respondents are concerned they claim to be recruited under Part IV, namely, recruitment by selection which is one of the four methods provided for under rule 3 (b). On the other hand according to Mrs. Pappu the respondents are more temporary promotees to temporary vacancies in Class II Service and they are a class different from the direct recruits who are not similarly situated with them.
We have, therefore, first to consider this submission of Mrs. Pappu. As stated earlier, there are four methods of recruitment. Recruitment by promotion is provided under Part V and that is made by selection on the basis of merit from amongst permanent Section Officers. The particular recruitment of the respondents, therefore, cannot be under Part V. It is common ground that the respondents at the material time when they were appointed as. temporary Assistant Engineers were only temporary Section Officers in Class III. It is also admitted that 3--112SCI/77 all these respondents have requisite qualifications which are necessary for admission to the Service under Part III and they are also. within the age limit laid down under rule 23(2). Besides, recruitment when made is only on merit under rule 23(3). Being faced with this position, Mrs. Pappu submits that their recruitment is outside the Rules particularly because rule 23(1) provides for recruitment by selection "after consultation with the UPSC". She submits that they were selected by the Departmental Promotion Committee which is not the same thing as the UPSC mentioned in rule 22(1). We are, however, unable to accept this submission. 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 Ministry’s O.M. No. 33/46-Ests(R) dated 17th June, 1947, wherein it has been clearly stated in para 7 as follows :-
"Recommendations made by Departmental
Promotion
Committees on which the Commission is repre-
sented should
be treated as recommendations having the
approval of the
CommiSsion, and the convention regarding
acceptance of the
advice of the Commission will apply."
We are, 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 Part IV.
Since, however, there are no statutory rules for confirmation in service or seniority rules, it is submitted by Mrs. Pappu that under rule 4(c) of the Rules it is for the Government to determine the method or methods of recruitment to be applied for the purpose of filling any particular vacancy in the Service or such vacancies therein as may be required to be filled during any particular period and the number of candidates to be recruited by each method. It is in conformity with rule 4(c), says counsel, that the Government has fixed the proportions for filling vacancies in Class II Service by different modes of recruitment. She draws our attention to a letter of the Under Secretary to the Government of India, Ministry of works and Housing, dated 2nd October, 1954, which, as the Subject matter shows, contains the "proposal to prescribe definite quotas for titling the posts of Assistant Engineer (Civil) and Assistant Engineer (Electrical) in the C.E.S., Class II, and the C.E.E.S. Class II, respectively by different modes of recruitment." The proposal sets out in Part A thereof the quota for permanent vacancies as follows:--
A-Permanent Vacancies:
(i) 50% by direct recruitment by competi-
tive examina tion under Part 1II of the
Recruitment Rules for the Class 1I
Service.
(ii) 25% by promotion of permanent Section
Officers under Part V of the Recruitment
Rules.
(iii) 25% by permanent appointment of
temporary Assistant Engineers recruited by
competitive examination through the Union
Public Service Commission, and by transfer
under Part VI of the Recruitment Rules."
Part B thereof fixes the quota for tempo-
rary vacancies as under"B-Temporary Vacan-
cies:
(i) 50% by direct recruitment by competi-
tive examination through the Union Public
Service Commission and by transfer under Part
VI of the Recruitment Rules.
(ii) 50% by departmental promotion from
amongst--
(a) permanent Graduate Section Officers,
(b) permanent non-Graduate Section
Officers, and
(c) temporary Graduate Section Officers,
in accordance with the ratio which may be
fixed by the Departmental Promotion Committee
at the time of making the selection.
Provided that if at any given time,
candidates who are successful at the Union
Public Service Commission competitive examina-
tion are not available in sufficient numbers
for filling 50% of the temporary vacancies
that might be available, the residual vacan-
cies may be filled temporarily by departmen-
tal promotion, subject to the condition that
persons so promoted against such vacan-
cies, shall be reverted later, if necessary,
to make room for the candidates who may quali-
fy at subsequent examinations to be held by
the Commission,. as and when they become
available."
It is pointed out that this proposal
received approval of the UPSC as per its
letter dated 7th September, 1955. Mrs. Pappu
draws our particular attention to the follow-
ing paragraph in that letter:
"For recruitment to the posts in the
Cenral Engineering Service, Class II, and the
Central Electrical Engineering Service Class
II, the percentage quotas for various modes of
recruitment suggested by the Ministry vide
their letter No. E-1/5(3) dated the 2nd Octo-
ber, 1954, have been approved by the Commis-
sion."
Our attention is particularly drawn by the respondents to a letter dated 7th November 1975, from the Deputy Secretary (EstabliShment) to the Secretary UPSC and the subject of the letter is "confirmation in the grades of Assistant Engineers Civil & Elec. in the C.P.W.D." It is stated in that letter--
"Since these vacancies have occurred as a
result of conversion of posts from temporary
to permanent and since the C.P.W.D. has a
large number of officiating Assistant Engi-
neers who have been promoted from the grade of
Section Officer, it is considered that the
officiating Assistant Engineers have a prior
claim to these posts. The Ministry of Home
Affairs also share this view ........ The last paragraph of this letter reads as under
"I am to request that the concurrence of
the UPSC to, the allotment of these vacancies
on ad hoe basis to the officiating Assistant
Engineers (Civil) & (Elec) and to their
confirmation as proposed by the DPC at their
meeting on 18.7.1955 may be communicated to
this Ministry at an early date."
After this our attention is drawn by the
appellant to a document dated 5th March, 1962,
on the "subject: preparation of a
combined seniority list for direct recruits
and departmental promotees in the grade of
Assistant Engineers C.P.W.D." It is stated
therein as follows :--
"It was tentatively agreed that since
the ratio of recruitment prescribed for
direct recruitment through the UPSC and
Departmental Promotion of Section Officers has
not been adhered to, the date of confirmation
should be the basis of determining the inter
se seniority of direct recruits and the De-
partmental promotees. When the date of
confirmation of direct recruit and a depart-
mental promotee is, however, the same, the
direct recruitment should rank senior to the
departmental promotee. The Chief Engineer,
however, indicated certain practical diffi-
culties in following the above principle and
it was decided that further discussion should
be held before the Ministry of Home Affair’s
would be able to give their definite views in
the matter."
Mrs Poppu then draws our attention to
paragraph 2 of this letter which reads as
under :-
"The ratio in respect of direct recruit-
ment and departmental promotion was prescribed
in September, 1955. Whenever confirmation
thereafter was not made according to the
prescribed ratio, approval of the U.P.S.C. was
obtained to the relaxation of the quota."
The same paragraph continues to throw more
light:
"Before giving their final views, the
Ministry of Home Affairs desired to have a
copy of the communications wherein the UPSC
agreed to the relaxation of the quota. As
further discussions in the matter will take
place in the Ministry of Home Affairs within
the next few days the copies of the relevant
communications should be sent immediately"..
Mrs. Pappu finally draws our attention to
the minutes of the meeting held in the Minis-
try of Home Affairs ion 16th June, 1962, to
discuss the question of drawing up a combined
seniority list of various categories of As-
sistant Engineers in the C.P.W.D. She
points out that the first paragraph in the
minutes shows that "according to the orders
issued in 1955 recruitment to the grade of
Assistant Engineers (Civil & Electrical) in
the Central Public Works Department is to be
made by the following modes," namely, perma-
nent vacancies and temporary vacancies in such
manner as was contained in the proposal dated
2nd October, 1954, which we have already
extracted. She then draws our attention that
certain decisions were taken, as will appear
from paragraph 4 of the minutes, with regard
to the determination of the relevant seniority
of direct recruits and departmental promo-
tees. Mrs. Pappu submits that this is a
follow-up action of the proposal which emanat-
ed from the Ministry of Works & Housing letter
dated 2nd October, 1954, and which received
the concurrence of the UPSC. She submits
that the minutes did mention quota and some
decisions were taken about inter se seniority.
She submits that the position emanating from
the minutes can only be reconciled on the
basis that the quotas already fixed in 1955
had been the rule with regard to this Service.
The short question that arises for considera-
tion is whether there has been a determination
by the Government under rule 4(c). It is
clear that 1954 Rules did not prescribe there-
in any quota for recruitment through the four
methods specified under rule 3. One thing,
however, is clear that under rule 4(b) no
other method is permissible for recruitment.
It is also clear that with regard to the
sharing of recruitment through the different
methods power ’is reserved to the Government
under rule 4(c) to make certain determina-
tion. It is submitted by Mr. Gobind Das,
appearing on behalf of the Union of India,
that at the relevant time the Department of
Personnel was in the Ministry of Home Affairs
and it is that Ministry which was entrusted
With the matters relating to recruitment and
seniority. He further submitted that the
approval or sanction of the Home :Ministry was
mandatory for validity of any rule. It is,
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
that 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
rule 4(c).
The Under Secretary in the Ministry of
Works & Housing has filed an affidavit dated
16th December, 1976, with an annexure dated
14th
June, 1954, which shows that with reference to
the proposal for quotas the reaction of Home
Ministry was in the following terms:
"Prima facie, the proposal seems unob-
jectionable but this Ministry would like to
see again after the UPSC’s views have been
received."
It is perhaps because of this that Shri
Swaran Singh the then Minister for Works &
Housing also endorsed the Secretary’s propos-
al, which was in the following terms:
"The proposals are in order and may be
approved. After U.P.S.C. have been consulted
and given their concurrence, the case will
have to be shown to the Home Ministry again
who have asked to see these papers after the
views of the U.P.S.C. have been obtained."
The Minister, Shri Swaran Singh’s endorsement appears at the foot of this proposal on 24th September, 1954.
So far 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 rule 4(c).
It is 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-incharge. 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, there.fore, 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 15) 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 be affected.
We are 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 the Constitution.
We also 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 didnot 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 High Court.
Before parting 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 years 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. In the result the appeal fails and is dismissed. We will, however, make no order as to costs. P.B.R. Appeal dismissed.