Holding

The absorbed Senior Technical Assistants were deemed part of the surviving Junior Engineer cadre and entitled to promotion as Assistant Engineers on the same terms as existing Junior Engineers, rendering the 1986 amendment invalid.

Summary

The appellants, former Senior Technical Assistants of the Madhya Pradesh Lift Irrigation Corporation, were merged into the State Irrigation Department in 1982 as Junior Engineers. They claimed entitlement to promotion to Assistant Engineer after two years of service, a right the State later attempted to withdraw by reclassifying them as Sub‑Engineers in 1986, thereby reducing their promotion quota and seniority. The State argued that the Junior Engineer cadre had been abolished in 1979 and that amendments to the recruitment rules in 1981 eliminated any promotion avenue for Junior Engineers. The Supreme Court examined the statutory framework, the 1979 cabinet order, the 1982 merger order, and the 1986 amendment, concluding that the Junior Engineer cadre, though "dying," continued to exist and the absorbed staff were placed on par with existing Junior Engineers with identical promotion rights. The Court held that the 1986 amendment was arbitrary and discriminatory, quashing it and directing that the appellants be considered for promotion as Assistant Engineers on the same terms as other Junior Engineers. The appeal was allowed.

Issues considered

The effect of the 1981 amendment to the Madhya Pradesh Irrigation Engineering Service (Gazetted) Recruitment Rules on the right of promotion for Junior Engineers.
Whether the 1986 amendment reclassifying the absorbed Senior Technical Assistants as Sub‑Engineers retrospectively extinguished their promotion rights.
Whether the Junior Engineer cadre existed at the time of the 1982 merger, thereby granting the absorbed staff the same promotional eligibility as existing Junior Engineers.
Whether the State could lawfully discriminate between existing Junior Engineers and those absorbed from the Corporation.
Interpretation of Rule 7(4) of the Gazetted Service Rules and Schedule II in relation to promotion from non‑gazetted to gazetted service.

Legislation cited

Madhya Pradesh Irrigation Department (Non‑Gazetted) Service Recruitment Rules, 1969s. Rule 6(iv), s. Rule 7(4)
Madhya Pradesh Irrigation Engineering Service (Gazetted) Recruitment Rules, 1968s. Rule 15, s. Rule 18, s. Rule 7, s. Schedule I, s. Schedule II, s. Schedule IV

Subjects

promotionservice rulesmergersenioritynon‑gazetted servicegazetted servicecadre abolitiondiscriminationspecial leave petitionMadhya PradeshJunior EngineerAssistant Engineer

Judgment

M.P. JUNIOR ENGINEERS' ASSOCIATION AND
A
SANGARSH SAMITY & ORS.
v.
STATE OF MADHYA PRADESH & ANR.

FEBRUARY 16, 1990
B
[S. RANGANATHAN AND V. RAMASWAMI, JJ.]

Madhya Pradesh Irrigation Department (Non Gazetted) Service
Recruitment Rules, 1969: Rule 7(4)-State Government competent to
promote members of Non-Gazetted Service to Gazetted Service-Cadre
of J.E. 's abolished-Promotional chances not to be affected.
c
In August 1982 the Government of Madhya Pradesh decided to
abolish the Madhya Pradesh Lift Irrigation Corporation. It was also
decided to merge the surplus staff of the Corporation in the equivalent
posts of the Irrigation Department of the State Government. Accord-
D ingly, with effect from 8.10.1982 the appellants, who were serving as
Senior Technical Assistants (S.T.As.) in the Corporation, became
Junior Engineers in the Irrigation Department but their seniority
therein was fixed below the erstwhile Junior Engineers of the State
Department. For this purpose, an equivalent number of posts were
deemed to have been created in the dying cadre of Junior Engineers.
E Similarly, the Junior Technical Assistants in the Corporation were
absorbed in the lower cadre of Sub-Engineers.

The Junior Engineers of the State Department on completion of
two years' service as Junior Engineers, were entitled to be considered
for promotion to the gazetted post of Assistant Engineers. Sometime in
F 1984, the appellants who were at the bottom of the seniority list of
Junior Engineers became eligible for promotion as Assistant Engineers.
Their legitimate claims in this regard were being stalled by the State,
and so the appellants filed a writ petition in the High Court of Madhya
Pradesh in 1986.

G Later, the whole scheme of merger, as envisaged in the order
dated 8. 10.1982, was sought to be upset to the detriment of the appel-
lants, and towards that end the order issued on 8.10.1982 was amended
on J.3.1986. The effect of this amendment was that the Senior Techni-
cal Assistants were to be absorbed in the lower posts of Sub-Engineers
retrospectively with effect from 8.10.82. The amendment however, pro-
H vided that they shall be eligible for promotion to the posts of Assistant

424
ENGINEERS' ASSOCIATION v. M.P. 425

Engineers from the quota of Graduate Sub-Engineers. This amendment
vitally affected the interests of the appellants in so far as their status
and chances of promotion were concerned.

Having failed before the High Court, the appellants have come to
this Court by way of special leave.
B
Before this Court it was contended on behalf of the appellants that
they having been given the right at the time of absorption in 1982. that
they will be eligible for promotion in the same way as !)le erstwhile
• Junior Engineers of the State Department, this right could not be done
away by invoking an earlier amendment of the rules.

On behalf of the respondent State it was inter alia contended that c
( 1) the decision of the State Govermnent to absorb the appellants as
Junior Engineers had overlooked the fact that on 8.10.1982 there was
no cadre of Junior Engineers because that cadre had been abolished in
July 1979, and therefore this mistake was rectified on l.3.1986 by
absorbing the appellants in the lower cadre of Sub-Engineers;•(2) the D
appellants when they opted to join as Junior Engineers were aware that
according to the rules prevailing on that date there was "Do-avenue of
promotion for them as Assistant Engineers; (3) after 27. 7.SJ the rele-
vant recruitment rules had been amended which made it clear that after .
that date there could be no promotion to the posts of Assistant
Engineers from amongst Junior Engineers; and (4) the Junior E
Engineers belonging to the State Service had a right of promotion
earlier and this was continued even after the amendment whereas the
appellants became Junior Engineers at a time when there was no
further promotion available to them and this made all the difference.

Allowing the appeal, this Court,_ F

HELD: (1) The assumptioh of the respondents that the cadre of
Junior Engineers had ceased to exist long before the absorption of the
appellants into the Department is incorrect. Though the decision to
abolish the cadre was taken in 1979 and the existing posts were con-
verted into those of Assistant ,Engineer5/sub Engineers on 27.5.1980, G
the cadre did not die, for the Junior Engineers of the Department who
were then functioning continued to function as before until they were
promoted in due course as Assistant Engineers. [438E-F]

(2) It is also not correct to say that this crucial fact had been
overlooked at the time of passing the merger order of 8.10.82. On the H
426 SUPREME COURT REPORTS [1990] 1 S.C.R.

contrary, the State was fully conscious of its earlier decision and the
A order of 8.10.82 specifically mentions that the posts of Senior Technical
Assistants will be merged in the posts of Junior Engineers and an equi- ;..
valent number of posts shall be deemed to have been created in the
dying cadre of Junior Engineers. [438F-G]

B (3) Rule 6(iv) of the Non-Gazetted Service Rules, read with
Schedule I, clearly empowered the Government, in the exigencies of the
situation, to continue the cadre for limited purposes and augment the
same by the number of Senior Technical Assistants absorbed from the
Corporation. [439H; 440A]
'- ~

(4) On the terms of the relevant rules as on the language of the
c order of 8.10.1982, the appellants, viz. Senior Technical Assistants --
absorbed from the Corporation were constituted as a part of the cadre
of Junior Engineers, placed on complete par with the Junior Engineers
of the department already in service and given the same promotional ~
eligibility and opportunities as the latter. [440A-B]
D
(5) It was open to the State, in view of rule 7(4) of the Gazetted
Service Rules of 1968, to promote members of the non-gazetted services
also to the Gazetted Service to the extent of a prescribed quota. The t
restricted language of rule 7, cannot therefore, be construed in such a
way as to render redundant the specific provision in the Schedule entitl- A
E ing several persons from the Non-Gazetted services to promotion. [440G-H]

·~
(6) In interpreting these rules and Government orders one should
bear in mind that the promotional stipulations in Schedule II should be
read in the light of rule 7(4) which permits a wide latitude to the
Government in making recruitments, by way of promotion, even
F otherwise than in the manner outlined in rule 7(1). Reading the rules
and the Government orders issued from time to time harmoniously, the ~
effect of the cabinet order of July 1979 was that all J.Es., in position as
such, should continue to be promoted until all of them became Assistant
Engineers. I442F-GI

G (7) It is seen from the records that such of the Junior Engineers,
belonging to the cadre as_ had been in service with the State Department
have continued to get their promotions even after the 1981 amendment.
If that be so, then, clearly the Department cannot discriminate as bet-
ween officers belonging to the same cadre by promoting some of them
r
and denying promotion to others. A discrimination between them would
H be totally arbitrary and contrary to the scheme of absorption envisaged
in 1982. (441F-G; 442B]
ENGINEERS' ASSOCIATION v. M.P.[RANGANATHAN, J.] 427

(8) The truth of the matter is that, when abolition of the cadre of
Junior Engineers was thought of, the State decided that this .should not A
affect the existing Junior Engineers and their promotional chances.
Again, when the merger of the Corporation and State services was
thought of, the decision was that the Senior Technical Assistants should
be placed on par with the Junior Engineers of the State Service. This
was a conscious and equitable decision and to go back upon it has B
resulted in arbitrary discrimination against the appellants. By the deci-
sion of 1986, they lose their status as Junior Engineers (and are equated
to Sub Engineers, which is the status also accorded to the Junior Techni-
cal Assistants, their subordinates in the erstwhile Corporation), they

- lose their right to promotion, they lose seniority by being placed at the
bottom of the Sub Engineers of the State services, and the promotional
quota now allotted to them is illusory. [4438-D I

(9) Gross injustice has beep done to the appellants by the deeision
of 1.3.1986. This decision is therefore quashed. Accordingly, the appel-
C

lants will be entitled to be considered for promotion as Assistant
Engineers in the same manner and to the same extent as the Junior D
Engineers of the State service have been considered and not on the basis
of the percentages prescribed for Sub Engineers under the amended
rules. [443F-G]

CIVIL APPELLATE JURISDICTION:. Civil Appeal No. li9l
of 1990. E

From the Judgment and Order dated 15.7.1988 of the Madhya
Pradesh High Court in M.P. No. 600 of 1985.

A.K. Sen, A.K. Gupta and N.P. Mahendra for the Appellants.
F
.R.B. Datar, Salish K. Agnihotri, Devender Singh, Ashok Singh
and R.B. Misra for the Respondents.

The Judgment of the Court was delivered by

RANGANATHAN, J. The controversy in this Special Leave G
Petition arises out of the merger, with effect from 1.10.1982, of the
staff of the Madhya Pradesh Lift Irrigation Corporation (hereinafter
referred to as 'the Corporation') with that of the Irrigation Depart-
ment of the State Government consequent on the abolition of the
Corporation. We have heard counsel on both sides and we are of
opinion that these matters should be disposed of finally even at this H
428 SUPREME COURT REPORTS [1990] I S.C.R.
~
A stage. We therefore grant leave in the Special Leave Petition and
proceed to dispose of the appeal.

Appellants 2 to 17 and certain other writ petitioners in the High
Court were serving as Senior Technical Assistants (S.T.A.) in the
Corporation. The cadres of S.T.As. and the lower cadre of Junior
>
Ij
B Technical Assistants (J.T.As.) in the Corporation were equivalent
respectively to the cadres of Junior Engineer (J.E.) and Sub-Engineers
' i
(S.E.) in the Irrigation Department of the State. It is common ground
that the qualifications for appointment to the two sets of posts were '""--J
the same and that their pay scales were also the same. The appellants
I
c
claim that they are entitled, after the merger of the Corporation into
the Irrigation Department, to be treated as Junior Engineers and con-
sidered for promotion as Assistant Engineers on completion of two
years of service but that this avenue of promq~ion is being deined to
them by the State.
~
-I
-~
'~
'

0
To appreciate the above contention, it is necessary to set out 1
some historical background of the cadres in the State Department. JI
Initially the Junior Engineer's post in the State Government was a l
non-gazetted post, governed by the Madhya Pradesh Irrigation ~
Department (Non-Gazetted) Service Recruitment Rules, 1969. The
Junior E'ngineers, on completion of two years' minimum service, were •
entitled to consideration for promotion to the gazetted post of ~
E Assistant Engineer, a post governed by the Madhya Pradesh Irrigation
Engineering Service (Gazetted) Recruitment Rules, 1968. On March
19, 1973 the posts of Junior Engineers were declared to be gazetted

~
posts. 75% of the posts of Assistant Engineers could be filled up by
promotion from amongst Junior Engineers. On January I, 1978 the
Junior Engineer's post was once again converted into a non-gazetted
F post. The quota for such of those Junior Engineers as were working as 1
gazetted officers immediately before the issue of this order was I
retained at 75% as before for a period of two years by which time it
was expected that all of them would get promoted as Assistant
Engineers. But for this, the posts of Assistant Engineers were to be
I
filled up equally by promotion from subordinate cadres and direct
Q recruitment. The promotion quota was distributed among the sub-
ordinate cadres in the following proportion:

Junior Engineers (Non-Gazetted) -25%
Overseers (Sub-Engineers) -20%
Head Draftsman/Draftsman - 5%
H
ENGINEERS' ASSOCIATION v. M.P.[RANGANATHAN, J.) 429

In July, 1979 the Government decided to abolish the post of A.·
Junior Engineers in the State Irrigation Department. The relevant
cabinet order set out the following terms therefore:

I. The posts of Junior Engineer in the three works departments
should-be abolished. The Junior Engineers presently working in
B
these departments shall continue to work in their existing pay-
scales under the existing service conditions till their promotion.
(emphasis added)

2. The quota of recruitment for the post of Assistant Engineer,
which is at present 50% should be raised to 75%.
c
3. 25% posts in the Sub-Engineer cadre be converted into selec-
tion grade posts and selection for the selection grade post should
be made on the basis of merit-cum-seniority.

4. The quota prescribed for promotion of the Draftsmen should
be reduced from 5% to 3%. Promotion quota of 2% should be D
reserved for those Sub-E;ngineers/Draftsmen who obtain degree.
while in service.

5., The posts of Junior Engineer cadre, which presently exists,
should· be converted into the posts of Assistant Engineers and
Sub-Engineers with the concurrence of the finance department", E

Eventually, the State Government decided on 27th May, 1980 that the
941 posts of Junior Engineers in the Irrigation Department should be
abolished by converting 658 of those posts into posts of Assistant
Engineers and 233 posts into posts of Sub-Engineers (Overseers).ll
must be, however, pointed out that, though the existing posts of J .Es. F
or- S.Es. stood abolished from 27 .5.1980, in fact, a number of Junior
Engineers appointed earlier continued to function as before, under the
memorandum of July 1979, until they received promotions as Assistant
Engineers \A.Es.) in due course.

We now come to the details of the merger between the Corpora- G
tion and the State Department. In August, 1982 a decision was taken
to abolish the Corporation. The Government decided on the merger ut
i the surplus staff of the Corporation in the Irrigation Department and
' 8.10.82 was decided upon as the effective date of merger for all
puposes. We are concerned here with the formula for transition set out
in the opening para 0£ a memorandum of the above date regarding the H
430 SUPREME COURT REPORTS (1990] 1 S.C.R.
~

A
merger of the posts of S.T.As. and J.T.As. It read thus:

((2. Senior Technical
Assistants
Sectioned posts-Nil
The above employees may be
.
Equivalent Post- merged in the posts of
Junior Engineer Junior Engineers and an
13 (Rs. 360-650) equivalent number of posts
may be deemed to have been \,
27 posts-Civil created in the dying cadre
34-Posts-Electrical
(Mechanical)
12 posts-Geologists
of Junior E11gineers.
"'
I post-Geophysist
c
3. Junior Technical Sanction-30 posts (reserved).
Assistants Equivalent These may be merged against
post: (Sub-Engineer the posts of Sub-Engineers ~
(Rs.280-480) which have been obtained by
D conversion of the posts of
b2 posts-Civil Junior Engineer. The posts
reserved for Scheduled Castes
and Scheduled Tribes may be
made unreserved and appoint-
I men ts may be made against
,i
E them also."

The memorandum of 8.10. 1982 was followed up by a communi-
cation ..dated 10.11. 1982. The enclosures to this letter described the ~
absorptions as "ad hoc" but this word was deleted on 29. 1. 1983 with
reference to the posts with which we are concerned, making it clear
F that the absorption was to be permanent. The letter set out three \
conditions for the merger which admittedly are fulfilled l)y the t
appellants:

(i) The staff will be absorbed only subject to their fulfilling the
qualifications prescribed for the posts against which they are to
G be absorbed;

(ii) The inter-se seniority of the employees of the Corporation
shall be in accordance with the seniority list cleared by the Man- r
aging Director. The inter-se seniority of the departmental
employees and the employees of the Corporation shall be
H determined in accordance with the orders of the Government;
and
ENGINEERS' ASSOCIATION v. M.P.[RANGANATHAN, J.] 431

(iii) It was open to an employee of the Corporation to join the A
Government department or not to do so, for the employees were
to be required to join duties at· the place of their posting within
20 days from 10.11.1982, failing which it was to be deemed that
the appointment was not acceptable to them.

The seniority rule was announced much later, on 16A.1984. It said: B

"The regular officers/employees of the Corporation shall,
in the event of merger in the Irrigation Department, be
considered as Junior to the permanent officers/employees
of the Department and their seniority in the lists of the
temporary officers/employees of the department, shall be
fixed on the basis of the dates of assuming Office, without C.
affecting the inter-se seniority of the Corporation".

The result of all this, according to the appellants, was that the
S. T.As. of the Corporation became, w.e.f. 8.10.1982, J.Es. of the
department but their seniority therein was below the J.Es. of the State o
Department who had been in office in July 1979 and continued to
function as such even thereafter. It is stated that these Junior
Engineers in the Di<fJartment were being gradually promoted as A.J;:s.
and it was only sometime in 1983 that the appellants who were at the
bottom of the seniority list became eligible for promotion as A.:Es.
Their legitimate claims in this regard, it is alleged, were being stalled E
by the State and so the appellants filed a writ petition in the High
Court in 1985.

Sometime later, the appellants allege, it came to light that the
State, far from giving the petitioners their legitimate entitlement, was
planning a volte face to upset the whole scheme of merger as envisaged F
i earlier, to the detriment of the applicants. This they did, it is said, by
issuing a memo on 1.3.1986 which read thus:

"1. The State Government amends point No. 2 of para-
graph 1 of the orders issued vide Irrigation Department's
Memo No. 22(C)/43/32/P/37 dated 8. JO. 1982 as follows: G
...
2. Senior Technical ][ The above employees
Assistants ][ may be absorbed on
equivalent to Junior l [ the post of Sub-
Engineer (Rs.350-650)] [ Engineer protecting H
432 SUPREME COURT REPORTS [1990] 1 S.C.R.

the pay which they
A
were drawing
27 posts-Civil )I previously. Such
34 posts-Electrical )[ absorbed employees
shall be eligible for
promotion to the
B posts of A. Es. from
the quota of Graduate
Sub-Engineers.

2. These orders shall come into effect from 8.10.1982."

This order vitally affected the interests of the appellants in four
C respects-

(a) Having been absorbed into the State Department as J.Es. in
1982, they were suddenly demoted to the post of S.Es. retrospec- ~
tively, with the "saving grace" that their pay was protected;
D
(b) Under the seniority rules of 1984 earlier referred to, they
were at the bottom of the list of, J.Es. but above the S.Es. But
now they became juniors to all the Sub-Engineers of the
Department;

E (c) While previously a substantial quota for promotion from J .Es.
to A.Es. was a2plicable to them, the quota now got reduced (as
will be explained later) tu 4%; and

(d) While previously an experience of 2 years was sufficient for
their promotion, now they had to have a minimum experience ol'
F 8 years (as will be seen later).
\
The combined effect of all this is, it is alleged, that the appellants will
become eligible for consideration for promotion as A.Es. in the distant
future as follows:

Year No. of posts available Graduate
G
Sub-Engineers quota
-
1989
1997 3 r
2004 2
2007 I
H 2008 1
ENGINEERS' ASSOCIATION v. M.P.IRANGANATI!AN, J.] 433

In other words, only 8 persons will become eligible at distant dates
whereas aU of the appeUants should have received promotions gradu- A
A aUy since 1983 as and when vacancies occurred. The appellants con-
tend that this is a great travesty of justice which should be set right by
quashing the decision of 1.3.1986 and restoring the posit10n as it actu-
ally prevailed on 8.10.1982 at the time of the merger.
B
Sri Datar attempted to counter this-what prima facie appeared
~ to be a just and reasonable-plea with his usual persuasiveness. He
urged that the contentions of the appeUants overlook four important
basic facts and that, if these are kept in mind, itwill be seen not merely
that no injustice has been done to the appellants but that, in fact, the
State has come to their rescue by providing an avenue of promotion
where none existed. These basic facts are, he says: c
(1) As from 27.5.1980, there was no cadre of jUnior engineers at
-~ all in the State service. That cadre had been abolished by the
decision of 1979 and the conversion, on27.5.1980, of the existing
posts of J .Es. into those of A.Es/S.Es. D

(2) There had been an amendment on 27.7.81 to the relevant
recruitment rules which made it clear that, after that date at
least, there could be no promotions to the posts of A.Es. from
amongJ.Es.
E
(3) When the Corporation was abolished in 1982, the State
Government could have dispensed with the services of the appel·

~
!ants. Instead, they considered the appellants' cases sympatheti·
caUy and decided to absorb them into the State service. In doing
so, they purported to absorb them as J .Es. overlooking that, as
-I on 8.10.1982, there was no cadre of,J.E. in the State service. It i~
this mistake that was rectified on 1.3.1986 by absorbing the
F
appeUants as S .Es. (instead of as J .Es.) but protecting the pay
they were drawing.

(4) The petitioners had an option to join or not to join the State
service on 8.10.1982 asJ.Es. When they decided to join, they were G
aware that, according to the rules prevailing on that date, there
was no avenue of promotion for them as A.Es.
i
The net result of these considerations is, says Sri Datar, that,
instead of completely denying the appellants any promotion altoge·
ther (as there was no right, under the rules, to any suchpromotion), H
434 SUPREME COURT REPORTS [1990] 1 S.C.R.

A the State has, equitably, decided to confer qn these officers a right of
promotion by treating them as S.Es. This was a generous gesture on
the part of the State. The appellants should have been happy that an
avenue for promotion had been opened out to them, instead of being
disgruntled on the assumption that their promotion chances had
dwindled by the action of the State. This was the only reasonable way
B
of resolving the impasse that faced the appellants and the authorities.

Since Sri Datar has referred to the rules, it will be appropriate to ·.,_
pause here and notice the relevant service rules and the amendments
made thereto:

c Taking up the Non-Gazetted Service Rules of 1969 first, they
provided, in Schedule I-read with rule 5-for 269 posts of Civil
Engineers and 13 posts of Electrical/Mechanical Engineers in the
cadre of Junior -li:ngineers. Curiously enough these rules appear to
have remained unamended notwithstanding the decision of 1979 to
abolish these posts and the office order of 1980 converting these posts
D
(these appear to have numbered 941 at the relevant time) into A.Es.
or S.Es.

Turning next to the Gazetted Service Rules, the following provi-
sions thereof are relevant:
E
Rules 7. Method of recruitment-

( 1) Recruitment to the service, after commencement of the
rules, shall be by the following methods, viz.:

(a) by direct recruitment by selection;
F
(b) by promotion of substantive/officiating member of the ;-
M.P. Irrigation Engineering Service (Gazetted); and

(c) by transfer of persons who hold in a substantive capa-
city such posts in such services as may be specified in this
G
behalf.

(2) The number of persons recruited under clause (b) or
clause (c) of sub-rule (1) shall not at any time exceed the
percentage shown in Schedule II of the number of duty
H
posts (as specified in Schedule I).
ENGINEERS' ASSOCIATION v. M.P.[RANGANATHAN, J.] 435

(3) Subject to the provisions of these rules, the method or
methods of recruitment to be adopted for the purpose of A
filling any particular period of recruitment, and the number
of persons to be recruited by each method, shall be de-
termined on each occasion by the Govt. in consultation
with the Commission:
B
(4) Notwithstanding anything contained in sub-rule (1) if
in the opinion of the Govt., the exigencies of the service so
require, the Govt. may, after consulting the General
Administration Department, adopt such methods of
recruitment to the service other than those specified in the
said sub-rule, as it may by order issued in this behalf,
prescribe. c
Rule 15. Conditions of eligibility for promotions-
( I) Subject to the provisions of sub-rule (2), the Commit-
tee shall consider the case of all persons who on the 1st day
of January of that year had completed the prescribed years D
of service (whether officiating or substantive) in the post/
service mentioned in column 2 of Schedule IV or any other
post or posts declared equivalent thereto by the Govt. as
under and are within the zone of consideration, as per sub-
rule (2)-
E
(i) Sub-Engineers, Head Draftsman/Draftsman to the
posts of Assistant Engineers-Minimum service of 12 years
as Sub-Engineers, Head Draftsman/Draftsman.

Provided that a Sub-Engineer and Head Draftsman/
Draftsman who has completed a minimum of 8 years' F
service and possesses degree in Civi/Electrical/Mechanical
Engineering from recognised university or qualification
declared equivalent thereto by the State-Govt., will also be
eligible for promotion to the post of Assistant Engineer
and will be considered each time just after the zone of
consideration and then final selection 1ist will be made from G
both the groups on the basis of merit. For example, if ten
posts are vacant in the cadre of Asstt. Engineer to be filled
by promotion of Sub-Engineer, then 10x5=50 diploma
holder Sub-Engineers from working list be considered first
and thereafter the eligible graduate Sub-Engineers be con-
sidered.in the order of their seniority for promotion. H
436 SUPREME COURT REPORTS [1990] 1 S.C.R.

(ii) Junior Engineers to the posts of Assistant Engineers
A
minimum service of 2 years as Junior Engineer.

xxxxxxxxx

Rule 18. Select list-(1) The Commission shall
B consider the list prepared by the Committee along with the
other documents received from the Govt. and unless it con-
siders any change necessary, approve the list.

(2) If the Commission considers it necessary to mlike any
changes in the list received from the Govt. the Commission
shall inform the Govt. of the changes proposed and after
c taking into account the comments, if any, as may in its
opinion be just and proper.

(3) The list as finally approved by the Commission shall
form the select list for promotion of the members of the
D cadres of Sub-Engineers, Head Draftsman/Draftsmen,
Research Assistant and Junior Engineers of the M.P. Irri-
gation Engineering Service or its higher cadres, as the case
maybe.

(4) The selecte list shall ordinarily be enforced until it is
E reviewed or revised in accordance with sub-rule (4) of rule
16, but its validity shall not be extended beyond a total
period of 18 months from the date of its preparation:

Provided that, in the event of a grave lapse in the
conduct of performance of duties on the part of any person
F included in the select list, a special review of the select list,
may be made at the instance of the Govt. and the Commis-
sion, may, if it thinks fit, remove the name of such person
from the select list".
(underlining ours)

G Schedule I to the rules specified the number of posts in each
cadre. So far as Assistant Engineers (Class II) are concerned, the
number of posts is put at 329 (253 permanent and 76 temporary) in the
Civil Branch and 36 (22 permanent and 14 temporary) in the Electrical
& Mechanical Branch. The description and contents of the relevant
columns of Schedule II have to be set out a little more meticulously.
H Theyread:
ENGINEERS' ASSOCIATION v. M.P.[RANGANATHAN, J.) 437

Name Name Total no. M.P. Irrigation Engg. A
of of of duty Service (Gazetted)
Deptt. service postP.T.T percentage of the
number ofduty posts
to be filled in
By direct By promo- By transfer B
recruitment tion of the of persons
substantive from other
members of service
the service
[vide [vide [vide
rule rule rule
7(a)] 7(b) l 7(c)]
c
(1) (2) (3) (4) (5) (6)

Civil AE, Class 253 76 329 50 50 25 % by promotion
Irriga- II ofJEs D
tion 20% by promotion
Deptt. of SEs (previously
Overseers)
5% by promotion
of Head Draftsman/
Draftsmen E
Elec- -do- 22 34 36 50 50 As for A.E.
trical
&Mecha-
nical
Branch (underlining ours)
F
Schedule IV says that J .Es. (Class III) with minimum experience of
two years as well as S.Es. and Head Draftsmen/Draftsmen with 12
years' experience (8 years in the case of degree holders) will be eligible
for promotion as A.Es. (Class II) on selection by a departmental com-
mittee constituted as specified therein.
G
The interesting feature regarding the amendments of 1981 relied
upon by Sri Datar is that they left the rules quoted above and
Schedules I & IV untouched. They only amended Schedule II in two
respects:

(1) In the heading of column 5, the words "By promotion" were H
438 SUPREME COURT REPORTS [1990] 1 S.C.R.

substituted for the words "By promotion of substantive members
A of the service [vide rule 7(b )l".

(2) The figures in columns 4 and 5 were substituted by the fol-
lowing in respect of both thl? Civil Branch and the Electrical/
Mechanical Brancb:
B
(4) (5)
60 40 33% by SES. who are
diploma holders; '-
4% by SEs./Draftsmen
who are Engineering
c Graduates;

3% by Draftsmen/Head
Draftsmen who are not
Engineering Graduates.
D
We have considered the submissions of the parties in the light of
the above rules and amendments and come to the conclusion that there
is force in the contention of the appellants that they are eligible for J
promotion as AEs. in the same manner as the erstwhile JEs. of the
Irrigation Department. The assumption of the respondents that the ~
E cadre of JEs. had ceased to exist long before the absorption of the
present appellants into the Department is incorrect. As pointed out
earlier, though the decision to abolish the cadre was taken in 1979 and
the existing posts were converted into those of AEs./SEs. on
27 .5.1980, the cadre did not die, for the JEs. of the Department who
were then functioning continued to function as before until they were
F promoted in due course as AEs. It is also not correct to se•y that this
crucial "fact" had been overlooked at the time of passing the merger
order of 8.10.1982. On the contrary, the State was fully conscious of its
earlier decision and the order of 8.10.1982 specifically mentions that
the posts of STAs. will be merged in the posts of JEs. "and an equiva-
lent number of posts may be deemed to have been created in the dying
G cadre of Junior Engineers". These words make it perfectly clear that
the cadre of JEs. was "dying" (but not dead) and the strength of the
dying cadre was further enlivened by taking in the STAs. of the Corpo-
ration as JEs. Thus, the position is that, as on 8.10.82, the cadre of
JEs. continued to subsist and comprised of the old JEs. of the Irriga-
tion department and the STAs. engrafted·from the Corporation. This
H conclusion is reinforced by the interesting circumstance that the refe-
ENGINEERS' ASSOCIATION v. M.P:IRANGANATHAN, J.] 439

rence in Schedule I of the Non-Gazetted Service Rules to JEs. was not
omitted despite the decisions of 1979 and 1980. It is true that the A
number of these posts was mentioned as 269 in the Civil Branch and 13
in the Electrical & Mechanical Branch. But the actual number had far
exceeded these without a corresponding amendment in the Sc_hedule.
This. however. is inconsequential. Rule 6 of these Rules is in the follow-
ing terms: B

Rule 6. Method of recruitment-(i) Recruitment to
the service, afier the commencement of th~se .rules, shall
be by the following methods, viz.-

(a) by direct recruitment, by Selection/by Competitive C
Examination as shown in Schedule II,

(b) by promotion of substantive/officiating members of the
service (as shown in the Schedule IV), and

(c) by promotion of persons who hold in a substantive D
capacity such posts in such services as may be specified in
this behalf.

(ii) The number of persons recruited. under clauses
(b) and (c) of sub-rule (1) of the rule 6 shall not at any time
exceed the percentage shown in the Schedule II. E

(iii) Subject to the provisions of these rules, the
method/methods of recruitment to be adopted for the
purpose of filling any particular vacancy/vacancies in the
Service as may be required io be filled during any particu-
lar period of recruitment, and the number of persons to be F
recruited by each method, shall be determined on each
occasion by the appointing Authority.

(iv) Notwithstanding anything contained in sub-rule
(i) if in the opinion of Engineer-in-Chief/Chief Engineer,
the exigencies ofjhe service so require, the said Engineer- G
in-Chief/Chief Engineer, may after consulting the Govt.,
may adopt such methods of recruitment to the service other
than those specified in the said sub-rule, as he may, by
order issued in this behalf, prescribe .

. Rule 6(iv) read with the Schedule I clearly empo~red the Govern- H
440 SUPREME COURT REPORTS [1990] 1 S.C.R.

ment, in the exigencies of the situation, to continue the cadre for
A limited purposes and augment the same by the number of STAs. ab-
sorbed from the Corporation. We have, therefore, no hesitation in
holding that,. on the terms of the relevant rules as well as on the
language of the order of 8.10.1982, the appellants, viz. STAs.
absorbed from the Corporation were constituted as a part of the cadre
B of J .Es., placed on complete par with the JEs. of the. department
already in service and given the same promotional eligibility and
opportunities as the latter.

Counsel for the State contends that this conclusion would
directly run contrary to the rules of the Gazetted Service particularly
after their amendment in 1981 and that, after the date of said amend-
c ment, no AE could be recruited by promotion from among JEs. The
objection on this account is two-fold. The first, not clearly articulated
by counsel, is that rule 7(b) permits recruitment by promotion only
from among the members of the service and that a Non-Gazetted JE is
not eligible for promotion. The second is that, after the 1981 amend-
D ment, JEs have been excluded as one of the sources of recruitment by
promotion. We shall deal with these two objections one after another.

lt is true that rule 7(b) of the Gazetted Service Rules of 1968
provides only for JEs belonging to the said service being promoted as
AEs. However, when the JE's post became a non-Gazetted one in
1978, the relevant Government orders made it clear that AEs will be
E
recruited by promotion from among JEs to the extent of 25% out of
the 50% quota available for promotion. The Schedule clearly
mentioned this. As it also mentioned SEs and Head Draftsman as
other sources from which promotion could be made, the reference to
JEs was also clearly to the non-Gazetted JEs. Promotion of Gazetted
F JEs had been serarately provided for as before. Thus, under the
Schedule, non-Gazetted JEs were also clearly eligible for promotion
despite the restriction in rule 7(b). This inconsistency between the
Schedule and the rule was apparently noticed only in 1981 and the
heading of Column 5 of Schedule II was amended to make it clear that
the promotions therein referred to were from the non-Gazetted
G serviee, although rule 7(b) was left unamended. The omission to amend
rule 7, however, is not of much significance. It was open to the State,
in view of rule 7( 4), to promote members of the non-Gazetted Services
also to the Gazetted Service to the extent of a prescribed quota. The
restricted language of rule 7 cannot, therefore, be construed in such a
way as to render redundant the specific provision in the Schedule
H entitling several persons from the non-Gazetted services to promotion.
ENGINEERS'.ASSOCIATION v. M.P.[RANGANATHAN, J.) 441

It is then argued that, at any rate, after the amendment of the
A
relevant columns of Schedule Hin 1981 there is no right in any J.E. to
.l. claim promotion as A.E. At least from that date, the promotional
avenue for J.Es. stands abolished, claims Sri Datar. Sri Ashok Sen, for
the petitioner, contended that the petitioners having been given a
right, at the time of absorption in 1982, that they will be eligible for
promotion in the same way as the erstwhile J.Es. of the State Depart- B
ment, this right cannot be taken away by invoking an earlier amend-
ment of the rule. He cited some authorities in support of the proposi-
tion and pointed out that the petitioners had amended the original writ
petition to include a prayer for quashing the amendment purportedly
effected on 27.7.81. On the other hand, Sri Datar contends that no
employee has a vested right to promotion and that it was in law open to
the Government to change the conditions of service so as to take away
c
a right to promotion that may have existed earlier. But, he pointed
out, so far as the petitioners were concerned, there was no taking away
of any right to promotion at all because, even as on 8.10.82 when they
claim to have become J .Es., the rules provided for no promotional
avenue at all and none was promised to them either by the order dated D
8.10.82.

We do not think it is necessary for us to express any views on the
question whether an amendment taking away the rights of promotion
l earlier available to a cadre of employees is constitutionally valid. We
shall proceed on the assumption, as contended by the State, that this is E
permissible and that the effect of the amendment is that, _on and from
27.7.81, no A,~. can be recruited, under the amended Schedule, from
among the J .Es. Assuming thi.s to be correct, this rule should apply to
all the J.Es. in the "dying cadre''. It is seen from the records placed
before us that such of the J .Es. belonging-.to this cadre as had been in
service with the State Department have continued to get th~ir promo- F
lions even after the 1981 amendment. This is clear from the gradation
list filed by the appellants which shows that three Junior Engineers
were promoted as AEs. on 17.8.83. Further, the specific averments to
this effect in the affidavits filed on behalf of the petitioners at various
stages have not been denied. The petitioners have also placed on
record an order dated 18.10.1985 which shows that a J.E. of the State G
Department in the Electrical & Mechanical Branch (perhaps the last of
that category) was promoted as A.E. If this be so, then, clearly, the
i Department cannot discriminate as between officers belonging to the
same cadre by promoting some of them and denying promotion to
others. Sri Datar emphasised that the J .Es. belonging to the State
service had a right of promotion earlier and this was cotinued even after Ft
442 SUPREME COURT REPORTS [1990] 1 S.C.R.

the amendment whereas the appellants became J .Es. at a time when
A
there was no further promotion available to them and that this makes
all the difference. This argument runs somewhat contrary to the earlier
argument of counsel that ·the amendment of 198_1 should be treated as
applicable to all claims for promotion after 27. 7.81 and that the State is
at complete liberty to deny promotion after that date even in respect of
B those wno may have earlier had a right to such promotion. But even
assuming that the distinction now sought to be pointed out by him
marks a difference between the two categories of J.Es. on the cadre as
on 8. 10. 82, a discrimination between them would be totally arbitrary
and contrary to the scheme of absorption envisaged in 1982. It cannot
be presumed that the State, when it absorbed the S.T.As. into the
dying cadre of J.Es., was unaware that (though, since 1981, there were
c no promotional avenues for J .Es. as A.Es. under the rules) the incum-
bents of that cadre were entitled to such promotion under the cabinet
orders dated 5.7.79. The order of 8.10.82 places the absorbed S.T.As.
into that "dying" cadre by creating fictionally ID! equl!_l number of_posts )
to accommodate the persons so absorbed. The intention and effect of.
D the order of 8.10.82 was to 2rant to all the S.T.As. so absorbed exactly
the same stams as was enjoyed bv those already in the cadre. In other
words, if the J .Es. already existing in the cadre nad a right of promo-
tion, as on 8.10.82, the new incumbents were also given that right; and
if they had none lifter 27. 7.1981, the new incumbents would have none
either. The State has admittedly proceeded on the footing that, despite
)
'E the 1981 amendment, the J.Es. from the State Department were eligi-
ble for promotion; in fact, they have been promoted since 1979 as
A.Es. as and when vacancies arose. This being so, any differential
treatment of the absorbed S.T.As. would clearly be discriminatory and
unconstitutional. In interpreting these rules and Government orders,
one should bear in mind that the promotional stipulations in Schedule
F II should be read in the light of rule 7(4) which permits a wide latitude
to the Government in making recruitments, by way of promotion,
even otherwise than in the manner outlined in rule 7(1). Reading the
rules and the .Government orders issued from time to tim1: har-
moniously, the effect of the cabinet order ef July, 1979 was that all
J .Es., in position as such, should continue to be promoted until all of
G them became A.Es. It is no doubt somewhat difficult to see how, after
27. 7.81; only a part of the pattern ofrecruitment in vogue earlier could.
stand side by side with that introduced on that date. One could have
anderstood a stand on the part of the State that, as and from that date,
promotions would be limited only to the new feeder categories and
would not be available to any J.E. at all. But if the subsequent varia-
H tion of 1981 did not override this benefit extended to the former Sta.te
ENGINEERS' ASSOCIATION v. M.P.(RANGANATIIAN, J.] 443

J.Es. and has nor oeen understood as having done so and the pattern A
of promotion indicated in the amendment of 1981 was subject to the
right of such J.Es. in the cadre for promotion as per the cabinet order
of 1979, it is difficult to see how a different rule could be applied to the
S.T.As. Who have been absorbed to augment that cadre. The truth of
the matter is that, when abolition of the cadre of J .Es. was thought of,
the State decided that this should not effect the existing' J.Es. and their B
promotional chances. Again, when the merger of the Corporation and
State services was thought of, the decision was that the S.T.As. should
be placed on a par with the J.Es. Qf th~ State service and that the
J.T.As. should be placed on_par with the S.Es. This was a consci•;ms
and equitable decision (for, as is common ground, the post of S.T.A
was equivalent to J.E.) and to go back upon it has resulted in arbitrary c
discrimination against the appellants. By the decision of 1986, they
lose their status as J.E. (and are equated to S.Es. which is the status
also accorded to the JTAs, their subordinate~ in the erstwhile Corpo-
ration), they lose their right to promotion, they lose seniority by being
placed at the bottom of the S.Es. of the State service and the promo-
tional quota now allotted to them is illusory. It is true that they had D
volunteered for absorption as JEs. in 1982, a date when there was no
promotional avenue to a JE _under the rules. But they _did so because
Jhey were told.that they would be_placed on J?art with the J.Es. in the
State service and never imagined that they would be denied promotion
on the basis of the amended rules while the JEs in the State service
continued to get promotions despite the amendment. The fact that E
they opted for the.State service does not, therefore, entitle the State to
treat them differently from the JEs of the State service. We have,
therefore, no doubt in our minds that gross injustice has been done to
the appellants by the subsequent decision of the State Government.
We, therefore, quash the decision of 1.3.86 and direct that the appel-
lants will be entitled to be considered for promotion as A.Es. in the F
same manner and to the same extent as the J.Es. of the State service
have been considered and not on the basis of the percentages pre-
scribed for S.Es. under the amended rules. In the view taken by us that
the rules and the amendment therein do not override the effect of the
orders of 5.7 .1979 and 8.10.82, it is not necessary for us to pronounce
any opinion on the validity of the 1981 amendment to the Rules. G

The appeals succeed to the extent indicated above. There will be
no order as to costs. ··

R.S.S. Appeals allowed.
H