Holding

The 1976 seniority Rules 2(iii) and 2(iv) are unconstitutional and void as they violate Articles 14 and 16, and seniority must be determined by length of continuous officiation as directed in A.K. Subraman’s judgment.

Summary

The case concerned the inter‑se seniority of Executive Engineers in the Central Public Works Department who had been promoted from the grades of Assistant Engineer and Assistant Executive Engineer. The petitioners challenged the Executive Engineers, Central Engineering and Central Electrical Engineering Service (Group A) (Regulation of Seniority) Rules, 1976, particularly Rules 2(iii) and 2(iv), which gave en bloc seniority to Assistant Executive Engineers and applied a rotational seniority formula, alleging that the rules violated Articles 14 and 16 of the Constitution and were retrospectively applied to defeat a Supreme Court direction in A.K. Subraman’s case. The Court examined whether the quota rule and the rotational seniority scheme could be applied despite massive deviation from the quota and whether a later statutory rule could override the earlier judicial decision. It held that the 1976 rules were unconstitutional because they departed from the principle of seniority based on length of continuous officiation and discriminated against Assistant Engineers. Consequently, the seniority list dated 14 August 1975 and the 1976 rules were set aside and the government was directed to prepare a new seniority list in accordance with the length‑of‑service rule.

Issues considered

Whether Rules 2(iii) and 2(iv) of the 1976 seniority regulations violate Articles 14 and 16 of the Constitution.
Whether the retrospective effect of the 1976 rules can override the Supreme Court's decision in A.K. Subraman’s case.
Whether the seniority list dated 14 August 1975 is valid in view of the earlier judicial pronouncement.
Whether the quota rule and the rotational seniority formula are constitutionally permissible when the quota has been massively deviated from.
Whether the Memorandum dated 22 December 1959 governs seniority for promotions after that date.

Legislation cited

Central Engineering Service (Class II) Recruitment Rules, 1954
Central Engineering Service (Class I) Recruitment Rules, 1954
Constitution of Indias. Article 14, s. Article 16, s. Article 309
Executive Engineers, Central Engineering and Central Electrical Engineering Service (Group A) (Regulation of Seniority) Ruless. Rule 2(iii), s. Rule 2(iv)

Subjects

seniorityquota rulerotational seniorityArticles 14 and 16constitutional validityExecutive Engineerspromotionretrospective legislationCentral Public Works Department

Judgment

I 847

P.S. MAHAL & ORS. A
v.
UNION OF INDIA & ORS.

23rd May, 1°984 B

[P.N. BHAGWATI AND R.S. PATHAK, JJ.]

Executive Engineets, CentrG/ Engineering and Central Electrical Engineering·
Service (Group A) '(Regulation of Seniority) Rules, 1976, brought into force with
retrospective eff~ct from 10th Dec.ember, 1974-Rules 2(ii) and 2.(iv)-Con~
stitutional validiiy of-Whether the· rules viol<;ite the provisions of Arlie/es 14 and
c
16.(i) of the Constitution.
-I
lnter-se Senioriti of Executive Engineers promoted regularly within their
respective quota from and afier 22nd December 1959 but before_ Jlth- December,
1974 .from the posts of Assistaht Executive Eagineers governed by the Central
Engineering Service (Class-I) Recruitment Rules, 1954 and· Assistant Engineers D
governed by Central Engineering Service (Class-II) Recruitment Rulq 1954, as
• re.fixed by the seniority List dated August 14, .. 1975-Whether irreiular and con-
trary to Jhe guidelineS indicated in the decisions reported as A.K. Subraman v.
Union of India [1975] 2 S.C.R. 979"=Qnota rule in Rule 4 of the Centra/.
Engineering Service (Class-I) Rules,.1954 when applicable.

.
In the Central Public Works Department of the Ministry of Works
E
and· Housing, ·Government· of India, the promotions to the posts of
Executive Engineers are made from amongst.Assistant Executive Engineers
.(Class-I ) who have rendered. more than ·fiv~ years of their service
in their grade on the basis of Seniorit~-cum fitness and alio from Assistant
Engineers (Class-II) who haVe rendered more than eight years Of service in
their grade on the basis' Or ni~rit, the selection "being made through a F
dep_artmental pro:notion comffiittee pres.ided over by a member of the Union
Public· Service Commission, since for the latter the· P.P&t of ~ecutive ·
• Engineer is a selection post. For promotion to .the 'giade of Exective
Engine::rs~ for the first time, on,4Sth August, 194·9, a quota in the ratio
o.f 75% to 25% was prescribed by the Central Government. this was con..
tinuCJi right upto the Recruitment Rules 1954 were·~nacted for these two
categories .. From Septenlber 7, 1955~ this quota was altered wjth reti'oseec .. G.
tive effect to 66-2/3% and 33 1 /3% and it was again altered 'with effect
from April I, 1.972 to SO: 5~ for a period of seven years.

However, at the time of promoti.ons not onJy the quota was not
adhered to with the result that Assistant .Baginoers came to be promoted "H
848 SUPREME COURT REPORTS [1984] 3 S.C.R.

A with Executive .Engineers far in excess of th.eir quota, while there was .a
shortfall in the promotions of As~istant 'Elt.ecutive Engineers, sO ra·r as their
quota was concerned, but all of them were treated as officiating E;xecutive
Engineers .

• was no statutofy ·rules _govcro'ine; inter.se seniority of Executive
There
B Engineers pro1J1oted fro~ these two grades. They wer~ th'.!refore, gov0raed
by th,e Memorandum issued by the Home ·Mini-;try .on June 22nd, 1949
which laid down the general principles of seniority applicable to all depart- ~'
ments of the· government. The Memorandum provided that "in respect Of I '
-persons employed in any part"iCu\ar grad~, seniority should, as a general
rule, be determined on thC basis of length of service in th<lt grad~ as well as
service in .ao ·equivaleilt gra4e irrespective whetb:;r the latter was under
c Central or Provincial Governnient in Iildia or Pakistan.'·' The. length of con-
tin'uous officiatiO!J in the- grade was thus take'1 as the yardstick for_ the
purpose of deterniining seniority in all depatt!Il-ents pf the government and
a· fortioraYi, in the grade of ExcctiVe Engineers. On the basis of this
yardstick, Assistarit Engineers .promoted as officiating Exe~utiv¢ Ei1.giaeers
within their quota ·would clearlY. ~e senior to Assistant· ExecutiV-e Engineers
..
promoted Ia_ter as officiating. Executive Engineers. l-
D
RespondentS 1 t_o 3 issued a seniority list on Ist July, 1971 in which·
Executiv~ Engineers promoted. from the grade of Assist<tnt Eng-ineers ia.
r.Cgular manner on the basis of selection made by Departmental Promotion
Committ~e and within their quota were shoW~ as junior to Several Executive
Engineers promoted much later from the ~frade of Assistant Executive
•
Engineers ..Respondents 1 to 3, in making this seniority list proceed~d , on
E
the basis that the quota rule spedfied ia the last par~ of sub-rule ( i) of Rule
4 of the Recruitment Rules nece>Ssatily imi)Iied a system of rotation and it
was required to be strictly applied at the stage of confirmation in the grade
of Executive Engineers. In other wOrds, out of three vacancies in the grade
of Bxecv_five Engineers, unless two reserved for promotion of Assistant
Executive Bilgineer_s were filled up by confirmation of such promo.tees, the
third O_oe for confirmation of ·an AssiStant Enginyer promotr.d as Executive
F
Engineer-could no~ be ti.fled. Consequently, all Assistant Engineers were
treated a3 ad·hoc appointees without ~ny ·claim to seniority until .such
·-time as they were confirmed as Executive Engineers within their quota. The
impact of this decision ·or Respondents Nos. 1 to 3 was disastrous for a large
number of Ex~C.Utive Engineers promoted froi.p the grade of Assistant
Engineers on officiating basis, since many of _them had to. retire ·without ._
G being confirmed and therefore, ~ithout any clRi.m of seniority in the g[ade
of Executive Engineers and tbt? position continues to exist tiJJ date. There-
fore the aggrieved -Assistant Engineers filed a writ petition b~fore the 1"!el~i
High Couft .. The Full Bench of that Court dismissed, the said petitions. In
the ap.J)eals .. by a common judgment reported as A. K. Subraman and Ors.
H 'v. Union of India and Ors.· [1975] 2 S.C.R. 979; the Supreme Court
acCepted the contention of the petifloners that the quota rule was t6 be
applied at the stage of initial promotion ·in officiating capacity, to the grade
of Executive Engineers and not at the stage of cOnfir~ation.and that it' did
not necess<,1.rily imply the ro~ational system aod since the general principles
P. s. MAilAt v. UNION 849

for determining seniority laid down in the· Memorandum dated 22nd June, A
1949 were, on their plain tern1s, applicable, seniority in the grade of
ExecQtive Engine.ers was liable tO be fixed on the b~tsis of length of continuous
officiation ·in that grade as provided iii the Memorandum. The Court allowed
the appeal after. summarising its conclusions i~ the form of folio.wing six
propositions nemely :

• B
(I) When Assist.ut Engineers {Class·Jl) are initially appointed in a
regular manner iri accOrdance with the rules to-. officiate as Executive
Er·gineers, their s~niority ia the service in Grade-I will· count from the date
of their initial officiating appointment in Class I provided., their· initial
o'fliciating appointment as Executive Engineers was within their Quota;

(2) Their seniority will not be reckoned ffom the date of their future c
confirmation in Ciass·I. The above principle is, however, ·subjeC:t l_o one
·reservation, namely, if an Assistant Engineer, 6ef-0re his Confirmation in
Class IC were appointed to officiate in Class I in the grade Or Exe.cutive
Engineer; although within _bis quotii, his seniority will count only from· the
date of bis confirmation 1.n Class II as permanent Assistant.Engineer not-
_withstanding ~is earlier officiating appointme_nt as Executive Engineer;
D
(3) The quota rule will be enforced at the time of i_nitial ·recruitment,
in an officiating capacity to the grade of Executiv~ Eag_ineC:r and not at the
time oj confirmation;

l4) The quota rule will be enforced with reference to vacancies in all E
posts, w·bether permanent or ~emporary including in the sanctioned· Strength
of the cadre (except such vacancies as are purely of a fortuitous or adventi-
tious nature) and th6 operation of the quota rule will depend upon the avai·
]ability or non availabiii~ of Assii;tant Executive Engineels for appointment
0

as Executive Engineers. The non-availability of Assistant Executive Eo gicienrs
for recruitment to the grade of Executive Engineer will not postpone the
regular recruitment ?f the Assistant Executive Engineers within theit quota. F

(5) Once·tbe As.sistant Engineers ai-e reglllarly"·appoiuted to officiate
' ' as Executive Engineers w'ithin their quota tb~y _will b6 entitlei.:I to coaSidera-
tion in their own rights as- Class I officers to fu"rther promotions. Their

. '
"bi.rtb rllarks'' in their earlier service- will ~e of no relevance once they. are
regularly officiating in th~. grade of Executive Engineer within their quota. G

(6) U Assistant Engineers are recruited. as· Executive EQgineers in
excess of thei~ quota in a particular year they wi!l be pushed dowll to later
years for absorption when due within their quota." and directed the' respon·
dents Nos .. I to 3 to amend and revise the" seniority list of 1st July 197; in.
the Ji-ght of the directions give1,1 in.· the judgment and to give effect to the ff
revised seniority list so prePared•
•
•
850 SUPREME COUR')" REPORTS ll 984] 3 s.c.R.

A Respqadents Nos. 1 to 3, ·thereafter, i&sued a seniority list on 14th
·August, 1975·.accompanied by a memon1ndum beadag the same date in which
it was st~ted that the seniority list of Executive ErigiOeers· had been raised
in the light of the judgment of tbe Supreme Court- dated 11th December, •
1974 in acCordanco With the principle set out In the memorandum. Poi the
.purpose of determining the seniority in the grade of ·Executive Ellgineers
from and after 22lld December-, 1959 resp"ondents Neis. 1 to 3 int_roduc-:-d t~e
B carry forwArd principle and applied the r0tationa1 formula. The o'fficers who
bad becD, with thl' concurrence of the Union Public Service CoffinlissiOn,
. officiating as Executive Eogioi::ers prior to 25th August, 1949 ~nd continued
to do so thereafter were shown en blqc.senior to the officers appOinte:d after
25th August, 1949 and so far as the period between 25th August 1949 and
. '
· 21st December, 1959 was conCerned ·thd inter se Senior.ity .of persons promote~··
~ during.that period from the grades of Assistant Engineers and A:;;sistant
c Executive Engineers within- their respective quotas was determined in accor-
dance with the length of their regular continuous service as Executive
Engineers, subject to the q6aHfication that. in case of Assistant Engineers
who were promoted as Executive.Engfoeers·.tbe iength of their regular con-
tinuqlls seryice as Executiv_e Engineers for the· pu~pos"e of determining . ..
·p ..
seniority would· be computed only _from the date when they were confirmed
as-AssSist ant Engineer. ' · .-
,
But with effect from 22nd December 1959, a departure was made by
respondent Nos. 1 to 3 ·from th~ principle of continuous officiation and
~·carry fOrward principle Was applied by prov.'iding that s'6 posts earmarked
for promotiro of Assistant Executive Engineers to the g~ade 'of Exee;utive
·Engineers in accordance with their quota 9uring the period prior tO. 22rl(t
December,· 19.S 9 which hid ·reaia'ine~ unfilled owing to noa.availabhity of ·.
E
Assistant Executive Engineers up to 22nd_ D'ecember 1959 shotJld,be-carried
forward and. 86 Assistant_ Executive Engineers promoted after 22nd Dec~mber;
1959 should be adjusted against these posts and they should be assigned
sCDioiity en-bloc imO'lediately below the last EXecutive Ei:igineer promoted
regularly prior to.22nd December, 1959. The result was that the Assistant
Engineers who had been promoted as Executive Engineers regula~ly wit bin
F thei!' qu"ota subsequent to 2 ?nd _December 19 59 became junior to the ,Ass.is-
tant. EvecutivO Engineers promoted against these 86 carried forward posts, •
even though they migh~ have been: _promoted as Executive Engineers long
prior to tho promotion of such Assistant Executive Engineers. The Assistand
ExecutiVe Engineers promoted and adjusted against these 86 Carried for"'
wa~d posts were given seniority -~bove the ASsi$tant Engineers promQted
rogUlarly within their quota after 220:d. December, 1959 irrespectiVe as to
G w'hen such_ Assistant Executjve Engineers were actuallY promoted. These .
posts were aajusted on the basis of the- order in 'which the vacancies in the
respectiVe quotas of Assistant Executive EngineerS and Assistant Engineers
for promotion· as Executive Engineers were allociited from time to ·time. The
· seoioril)'.' lnter-se of Assistant Executiv·e · Enginee~s. and Assistant Engineers
promoted r.egularly within ~heir respective quotas subsequent to _22nd
December, 19:59 was thus determined by the application of the rotational
H formula based on the quota pfevailing at tho relevant time. But ·since it had
not been P:oS:sib.le ·to .fill all the poJts 'allocated to the Assistant E~ecutive ·
Engineers' qaota and son1~ p6_st~ ~emained unfil~ed, theyJwere shown Us vacilnt

•
•
.
P, S. MAHAL v. UNION 851

in the senio:ity·list prepafed according to the roste• based on'the rotationa.1 A
formula so that as and when .Assistant Exceutive Engineers might be pro.mo ..
ted as Executive Engineers regularly within their quota, they would occupy
the,vaCant ·posts· e8.rmarked. for them in the seniority list. The disastrous·
effect of th~ revised seniority list was that most of the Assistant Engineers
prcunoted as Executive. Engineers r""egularly within their quota subscqµent to •
22nd December, 1959_lost a considerable nurnber of places in seniority and
Wer~ Piaced in a much worse situati.on. than what they were in under the B'
seniority list dltted Ist Jilly,_ ~971 which was quashed at their inst'anCe, in

.
vl
'
writ petitions. A contempt application against respondents Nos, .1 to 3 wus
therefore.moved.but, befofe the Court could hear the objeCtioils agai.nst the
seniority list on merits; the·ftrst respondent issue~ on .8th June, 1976· th~
Executive Engineers, Centfal Engineering and Central Electrical' Engineering
. service (Group A) (Regulation of Seniority)' Rules _1976. These ruies were
'deemed to have cO·me into fotce with effect from 10th December, 197_4, c
that is orie day before the delivery of Judgment., by 'this Court and they
substantially enacted in statutory form the same pririciples which were se~
·out iii the memorandum that aCcompanied the seniority list dated l 4tli ·
AUgust, 197S_aJid on which.that seni~rity list was based. ·

-j
The petitioners, thereupon, filed the present writ petitions contending D
thaf the Rules of 1916 wefe not applicable to the petitioners and other
AsSist~nt Engineers pron1oted as Executive Engineers regularly within t'heir
quota prior to 10th December 1974 and if these Rules were held to be
applicable, they were unconstitutional and 'void. ,Th'e petitioners challenged
the validity of the seniority list d:tted 14th Augusr,·1975 and the Rules of
1976 on t'be following grounds, namely; (_i)' th"t ·it was the case of .the
petitioners and other· Executive Engineers promoted from the gr3-4e ·or E
Assistant Engioeers regularly within their quota frOm · and after
22nd December 1959 but beforC 11th December 1 19$4 ·js covered by the
decision of this Court in A. K. Subraman's. c;se; (ii) that they are
entitled t9 claim seniority, on the basiS· of Ieng.th of conti'nrious officiation,
over. Assistant Executive Engineers promoted as Executive Engineers later in
.Point of tim'e; Gii) that the Assistallt Executive Engineers_ promoted and
adjusted against 86 carried forwarp posts cannot be given seniority ·en bloc F
over Assistant Engine~rs 9i'Ori1oted ·a·s Executive Engin~ers earlier; (iv) th'at
the rotational formula cannot' be applied retrospectively so 'as to deprive
AssiStant. ·Engineers promoted as Executive Engineers of their s~nio.rity on
the basis of_ length of coritinuous officiation lri t)je grade of Executive
., Engineers; (v) that the Rules of 1976 are, 'to that extent, UoconStitutional
and ·void as'. b(:ing outside the p~wer of _the Central Government; (vi) that
since fhe Rules of-1976 have been b~ougbt_intO (orce with effect from 10t.h G
December, 1974, they cannot affect the .Petitioners and· other. Assistant
Engineers , promoted as Executive Engineers regularly within thei_r quota
pti~r to that date and their St'.niority vis-a-vis Assistant Executive Engineers
• promoted as Executive Engineers must _contiriue to be governed by the
prjociple of length Of continued officiation in the- grade of Executive
Engineers; and (vii) that if the Rules of 1976 are applicable for determining
inteT se s~niority of Executive En.gineers promoted rfom 'the grades of H
Assistant Engineers and Assistant ExecutiVe Engineers within their respective
quotas from and after 22nd December, 1959, they are unconstitutional and
•
•

852 Stll'!IEME COURT REPORTS [1984] 3 s.c.lt.

A vOid as offiending Articles 14 a~d 1'6 of the Constitutton, since the::~niority
rules enunciated in tbe H.ules of 1976 being closely. linked with. the quota
rule continued massive departure from the quota rule over a long period of
t.ime must resUlt ·in the break down or the seniority.rules apd to hpply lhe
• seniority 1uh;s in such ·a situation would create gros$ inequality of oppor..
· tunity Of employment violative of Articles 14 and 16·.

B Allowing the petitions~ t~e C0urt,
,
HELD : 1.1 Rule 2(iii) of the Central Engineering and Central
"Electrical Engineering Service Rules, · 1976, i~ so far· as it gives en ~foe
Jeniotity to the AsSiStadt Executive Engineers promoted to the eighty ~ix .
.vacancies carried .forward from the period· prioi;. to 22·12-1959 irrespective
c of the dat.e \Vben theY. were a.Ctually promoted and·· pushed down in seniority
As5istant Er.gineers though' promoted· regularly within their quota prior to ·
the actual promotion.of such Assistant. Executive Engineers, merely pre-
judicially affecting their promotiQnal opportunities is violative of Articles 14
.I.
and 16 of the Constitution. [9068-D]
l-
1.2 Rule 2(iv) of the said Rules· also suffers from the same infirmity
D as it provides for rotational rule of seniority based oa the prevailing quota
for determining inter-se seniority between As~i~tant Engineers and Assistant
Executive Engineers promoted to the grade of Executive Engineers from and
after 2 ~nd December, 1959, subject to an en blac seni.ority being given, to
the Assistant Ex_ccutive Engineers promoted to the eighty six J"'carried
forwa·rd" vacancies as set' ·out in Rule 2(iii). Obvious;ly, if Rule '2{iii) •
providing for en bloc seniority to be given to the Assistant Executive
E Engilleers ·promoted to tlie eighty· six "carried' forward" VacJ.ncie::i is
unconstitutional and void,·Rule 2(iv) is also unconstituti0nal and vOid; when
there has been ·enormous dCviation from· the quota .rU1e ia lht1 p'romotions of
Assistant Execufive Engineers and such deviati~n has continued from year to
year over a period of almost tweaty five· years. [906D-H] '

F J.3 The rotational rule of stniority is inextricably linked up with the
quota rule,. and -if the quota rule is not strictly imPiemented and there is
large d·Cviation from it regularly from year tO year; it would grossly be
indiscriminatory and unjust to givq effect to the rotatienal rllle of seniority.
The rotational ·-rule .of sen'iority must Obviously br<.Jak down when there is ' .
such massive dcPJ..rture from the quota rule regularly from year to year
leading to contiOuOusIY )ncreasiog deficiency in promotions of Assistant
G Executive Engineers and corresponding excess in promotions of Assistant
" Engineers. [908C-D, 909D-E] .
. •.
T. Devdasan v. Union of India, AIR, [1964].S.C. 179; Mervin Contindo
v. The tollector of Customs, Bombay [1966] ·3 SCR. 600; G.D. Kelkar v.
Chief Collector of ~mports mid Exports [1967] 2 SCR 29; V.S. Badami v.
H State of Mysore [!976] I SCR 815; N.K. Chauhan v. State of Gujarat, [1973]
SCR 1037; A. Janardhan v .. Union of India AIR [1983] SC 769; Bishan
Swarup Gupta v. Union of India [1975] ! SCR 104 referred to.
•

P. S. MAHAL v. UNION 853

2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules of 1976, the A
inter se seniOrity between Assistant Engineers.and Assistant Executive Engi-
neers promoted regularly within theiit respective quota uptO 1 ltb December,
1974 must be determinrd on the basis of length of continuous officiation in
the grade of Executive Engineers. subject of course to the length of conti-
nuous offici~ion in the .case of Assistant Engineers being conlputed from
the date of their confirmation as' Assistant Engineers in view of decision o.f ..
the Supreme Couft in Su\>rainan•s case. ID. this view carrYing forward of B
x eighty ·six .posts ·of Executive Engi.neers · a110cable to Assistant Execu:ive
Engineers and giving u_p seniority en bloc to the AssisL nt, Executive
1

' 1
Eogin.eers promoted to the -~carry forward posts".by applying the rotatio1lal
··formula for the purpose of determining seniority amongst Assistant
Engineers and Assistant Executive Engineers promoted to the subsequenc
\'acancies i.s · ineffective quota Assistant Engineers and Assistant Executive
Ertgineers promoted upto·ttth December 1974 and so far as these Assistant C
Engineers'an.d Assistant Executive Engineers ar·e concerned, their i-.ter se
seniority must"be held to be governed by the length of continuous officjation
in the grade of Exe~utive Engineers. [888H, 889A·B]

2.2 Oil a plain reading of the .decision in Subraman's case, it is
obvious· that the direction given by it in regird tO determination of inter se D
seniJrity On thia. basiS·of length of continuous officiation was not limited to
Executive Engineerl.' promoted from the grade .of Assistant ·Engineers.and
Assistant Executive Engineers upto 2 ~nd December, 1959 .but \las on its
plain terms. applicable. tc all Executive Engineers promoted from tht:: .grade
of Assistant Erigineers an'd Assistant Executive Engineers with'in their
respective quota right upto 11th December, 1974 being the date of the
decision of the Court. But the ~evised se'niority list dated 14th. Aug·ust, 19?5 E
issued by the Government Of India was plainly in defiance of this direction
given by the Court. [872A·C, P·G)

~.3 When ,this Court in so many terms laid down that the inter se
seniority of Executive Engineers promoted from the grades of Assistant :
Engineers and Assistant' Executive Engineers upto December 1 J, 1974 must F
' be held to be_governed by the .rule of length of co~tinuous officiatioil and. th~
Government of India has b~en directed by a writ of the Court to amend and
..) . revise the seniority~ the effect cff this decision cannot be set at naught and
the binding character of the writ issued 'a8ainst ·the Government of India c1D.·
be abrogated by the mere prOmulgation of the Rules of · 19i6' with r'etros~
pective effect' from. 10th December 1974. It i• significant to note that the
Explanatory Memorandum whi_ch was in the nature of statement of objects G
and reasons for- the Rules of 1976 did not seek to override- the effect of the
decision in ·subraman's case -but on the cOntrary affir'med that the principles
of seniority set out in.those.rules were laid_down on.the baSis of the said
. decision. Since the R~les of 1976 purports _merely to. carry oUt · the direc ..
·tion given in the said .de.cision they ·cannot have the effect of overriding that..
decision. and absolving the Govt, of India and the Goyernment of India, fnust:
t therefore, amend and revise the seniority list of 1st July~ 1971. bf api)lyiog
the 1ule of seoiority based on length of contlnuous officiation for d6terininiilg
H

•
•

854 SUPREME COURT REPORTS • (1984) 3 S.C.R.

A i11t::r se seniority of Exe_cutive. Engineers prom"oted from thegrades of Assis-
taOt Engineers and Assistant Executive Engineers. tlp'to 11th December, 197 -t.
The relative position of the Executive· Engneers in· ·regard to their inter se
seniority having been crystailised in the ~deciion in Subraman's- case I.ind a ·
\Vrit havillg been isSued-by he ·court directing the inter. se seOiority of the
Executive· Engineers to be fixed on the basis of 1ength of contl.nuous officia-
tion the Executive Engineers pron1oted from .the grade of Assistant . Engineers
B ... were entitled to.enf6rce the writ fo..r 'determining the inter se seniority with
the Executive Engirieers in aCc.ordance with the rule of length of C'ontinuous
officiation:. The right of the Executive Engin_eers · prorr.oied from the-grade
of Assistant Engineers under the ·said decision could not be taken. away by
anYthing contained in the Rules of 1976. The decis"ion in Sahara.man's caSe
Continued to subsist and the GoverQment of_ India· Was. bound to a determine
intet: .re senio.rity amongst Executive Engineers in accordance with the direc-
c tion contained in that decision.: If by reasoo. of retrospective alteration pf
·-the rule of seniority the decision fa rendered erroneous, the· remedy may be
by way of reyiew, but so long as the decision stand~ it. cannot be disregarded
or igno_red <ind it must be .obeyed by the Government of fndia, despite Rule
2(iii) itnd 2(iv) so far as the Executive Engineers p,rornoted from the gr8de of
Assistarit Bogin.eCI'.S and. Assistant Executive Engineers upto 11 t~ December,

D.
1974 are concerned. (8.73E·H, .874B·F, 877A-B]

Further, the rule of seniority sefout in par3.graphs 5(i~) and 6 of the
M_emorandum of the Ministry of Home Affairs dated 22.12-1959 has no
application to the instant case. ·[878E] •
'
M.M. Pathak v. Unio1 of_India and Ors. [1978]. 3 SCR 346 Followed.

·E Shri Pri1hvi Cotton Mills l'd. v. Broach Borough Municipality [1970]
I SCR 388 distinguished ..

Patel Go-,.dhandas Ha,govindas ".· Munic1"pal Com-ni!isioner, Ahmeda·
bad {1964] 2 SCR 608 referred to.

F 3.1 If a vacancy arises on account of an incumbent ·going on leave or·
for' training or on deputajOn for a sbort period, it would be a fortuitous or
adv"eiititiOU<> vacancy and the quota ro'le would n )t be attracted in case of
such a vac.lncy. But where a vacancy. arises o;;,i account of. the incumbent
going on dt'putatiOn. for a l'.eaSonably·long perio:l and there is no reasonable
likelihood of the person promoted -tO )ill su_cb vacancv having to revert; the,.
·vacancy woUld be subject to t~e:quota rule,. Qecau_se it would be a .regular
G vacancy in the post of Executive Engineers and the person _promoted to fif(
the vacancy would' be an officiating Execiltive Engiffeer would contiriue as
sticb without reversion uutil confirmed and bts promotioD. would, therefore,
be by way Or_ recruitment to.the·cadre-of Executive· Engineers. Or
course,
t-he vacancy which attracts the applicability of the quota ru!e,_is the vacancy
in the posi -included i·a the sanctioned strength of the cadre of ·Executive
,Engineers and 'not the vacaDcy in the d.;:putation post. There. may be a
H ~acn.ncy in a deputation post ip. anothe~ department or organisation and an
Executive Engineer holding a pOst included in the sanctioned strength of tbe
cadre of Executive Engineers may be sent to such deputation pOst, but the
•

P. S. MAHAL v. UNION &55

vacancy which Would call ·for the appl~cation of the quot!! rule in such a case A
would be the vncancy arising in the post of Executive Engineer within the
cadre by reason of the incumbent of Ihat post going· to the deputation_ post
and not the vacancy in the deputation post which would be filled up by the
ExeCutive Engineer_ going on. deputation: Therefore, what has to be consi-
de'red for the applicability of the qu<,>ta rule is a vacancy in a poS:t included
in the sanctioned strexigth of the cadre of Executive Engineers and the sa"n-
ctioned strength whicJl. has to· be taken into account, is 'not merely the ll
sanctioned strength of the Cadre ofEXecutive Engineers in the entire Central
Eilgineering Service, Class I. The sanctioned strength of the 'cadre of ·Exe-
cutive Engineers in the 'central Engineering Ser.vice, Ciass. I, maY jncludci
not only.posts ·of Executive Engineers in the Central Publ.ic \Vorks Depart~
rnent ·but also Posts ·or Executive Engineers in "othef·departn1eilt.s and
organisations. [890H, 89!A-G]
·c
5.2 Therefore, ~t cannot be said that promotion to the post of
·E·xecutive Engineer' contemplated. 1:1nder the Rules can be made" only where
there is no lien of any officer on tba:t post because promotion acc:ording. to
the· quota rule "is initial promotion in o·fficiating caPacitYttand not conCerned
with confirmatiOn .. It is true that ·a confirmed ExeCutive Engineer who
goes on deputation may re Vert to the. post 011 which he bas a lien and -so D
also an officiating Executive.Engineer who g_oes on deputation may revert
back on termination of hiS-deputation and theoretically, in· either case, an
Assistant Eiigineer or Assist-ant Executive El'lgineer ~ho is promoted to . flJI
the vacancy arisiiig on account" of deputation .may have to revert, but in
actual practice -and reality, not a single Assistant Engineer or 'Assistant
Executive. -~ngineer promoted to fill a vacancy arising on account of.deput-
ation, bas had to revert, because deputation is a normal feature- in this E
service and 20 to' 25 per cent of the Executive Engineers are conlinuosly on
dePutation. Even, if one Executive Engineer comes back on termination of
his deputation, another has to be sent in'1lis pl~ce and deputations thus go
on rotating with the result that the vacancy in· the post ·of ExecutiVe
Engineer arising on accorint of .deputation does not cease and the Assista:Dt
Engineer of"Assistant Executive Ellgineer promoted as Executive. Ene:in.efil. to
liU the vacancy does not ever have .to revert and consequently the vacancy F
filled by bi.in is really .and truly· a· perµianen.t and long term . vacancy which
has to be filled according to the quota rule, In fact, if the quota rule·
were not to be applied with reference to such a .vacancy°,. the position wo·uld
be that Whenever an Exe.cutive Eogineer· goes od deputation for a· period
whicb·~ay extelld anything· between three :to.fi.ve years, the Central Govern-
ment would be entitled to promote a_n Assistant Engineer i.gaoring the
claims of Assistant Executive_ Engineers and this would totalJy be arbitrary G
in a sit11ation where 20 to.- 25 per -·cent of Executive Engineers are on·
.~eputation. For tbiS purpose the vacancies in tbe pas.ts of Executive
:Engineers arisi11g on account of deputation of Executive Ellgineers to other
departments, organi~ations and public Uiidertakings. for a period of one or
more years were long term vaCancies. and they could not be regarded as
fortu tious or adventitious in·· character . and hence they were subject to the
qqqta role. [8910-H, 89SH, 896A, 897A-F, Gj H
•
•

8,55 SUPREME COURT REPORTS {1984) 3 .s.C.R.

A 3'_ 3 However, the vacancy pro tempore filled irregularly by an Assis..
tant Engineer Would ·continue to beloag· to the quota of-Assistant Executive .
Engineers and it can be filled only by the Assistant Executive Engineer, if
the quota rul~ is to be strictly observed. The death or· retiremept of an ..
,irr~gular promotee to the ·vacancy cannot therefore give rise to a fresh
vacancy : . it -is the same vacancy which continues until properly filled'by
promotion of nn Assi5tant Executive Engineer-at a subsequent date. If in
B such a case the death or retirement cf an irregular appointed ASsistant
·Fngineer were tq be treated as creating a fresh ~acancy; it _would lead to
gross distortion. Simil:1rly while pushing down Executive Engineers
prcmOted from the grade . of Assistant Engineers in eXcess oft heir quota in
a subsequent yCar, the Government must treat them as absorbed from. the
date when a vac·ancy .in that year ari~es in the quota of Assistant Engineers
and not' on a national basis from 1st January of that year.
c . . (900 C-G, 901 C·D]
'
ORIGINAL JuRISDICfION Writ Peiition Nos. 157- I 62 of 1976
· (Under article 32 of the Constitution of India)'

M.C. Bh8ndare; A.K. Ganguli, D.P.-Mukherjee.and Miss. C.K.
D Suchirata for the Petitioners .

.M.M. Abdul Khader, Girish Chandra and Miss A. Subhashini
for Respondent. ·• •
M.!e. Ramamurthi, J. Romamurthi and Mrs. R. Vaigai for
• E Respondent.

Tiie Judgment. of the Court .was delivered by

BHAGWATI, J. This wlit. petition marks yet another round of
:litigation between two groups of Executive Engineers in Central
·Public Works Department of the Ministry of Works and Housing,
Government of India, one group consisting of promotees from the
grade of Assistant Executive Engineers ·.and t)le other. consisting of
promotees. from the grade of Assistant Engineers. The dispute between
these two groups in regard to .seniority has been going on for quite
some time and it has created considerable discord and bitterness
G' between these two groups which must inevitably affect the efficiency
of the Service. It is really a matter of regret that the Central
Government should not have been able to bring these two groups
together and evolve a: commonly agreed formula acceptable to both
sides. We hope that our decision in this writ petition will finally
ring the curtain down on this unfortunate controversy and both
H groups of Executive Engineers wiH accept the decision ungrndgingly
without any rancour pr resentment ~n'd wholeheartedly engage them-
selves in the nation building task entrusted to thero.
•

•
P.$. MAHAL v. UNION (Bhagwati, J.) 857

There is in the Central Public Works Department of Ministry A
of Works and I:Iousing, Government of India a Service known as
Central Engineering Service (Class I). This Service comi;>rises various
grades; the highest gr!(de is that of Engineer-in-Chief and then in
descending· hierarchical order ·are the grndes of Chief Engineer,
Su,ierintending Engineer, Executive Engineer and Assistant Executive
Engineer. The Central Governmenl has. made rules of recruitment B
to this Service known as the Central Engineering Service (Class I) ·
1 Recruitment Rules 1954 (hereinafter .referred to ~s 'Recruitment
Rules') and they are issued undet SRO 1841 d'}.ted 21st May. 19.54.
Part I of the Recruitment Rules contains tlie definition and Clause (c)
of Rule 2 occurring in this Part defines "Service" as Centrnl Engi-
neering Service Class I. Rules 3, 4. and 5 contained in Part II of the
c
Recruitment Rules lay down the modes of recruitment to various
grades in this Service in the following terms : · ·

"3. Recruitment to .the service shall be made by any.of fae
following methods ;-
' D
(a) By competitive examination in India in accordance with
•
Part III of these rules.
(b) By.promotion in accordance with Part IV of these rules.

(c) By transfer in accordance with Part V of these Rules. E

4. (I) All appointments to the service. or to posts· borne upon
• the cadre of the Service shall be made by Go•ernment, ·

(2) Subject to' the provisions of the rule 3 Go~ernment.
sha,ll determine the method or methods of requirement (Sio) F
. (recruit~ent ?) to be employed for. the ·· purpose of filling
any parllcular vacancies in the Service or such vacancies therein
'. as may be . required to be file'd during. any particular period
and the number of candidates to be recruited by each method.

Provided that all recruitment by competitive examination G
.(vide Part III of the rules) shall be to the grade of Assistant
Executive Engineer, Class I only.

S~venty-fi~e per. cent of the vacancies in · the grade of
Executive Engrneer, Clasfl, shall be filled by promotion of
A~sistant Executive Engineers, Class I, the ~est of the vacancies ·H
be!ng filled by promotion and/or by -transfer in accordance
wtth Parts IV aJ]d V of the Rules ~espectively. '
'
858 SUPREME COURT REPORTS (1984] 3 S,C.R.
'
A 5. Appointment to the Service made otherwise than by
promotion will be subject to ordelS issued from time to time
by the Ministry of Home Affairs regarding . special representa-
tion in the Services for specific sections of the people''.

Assistant Executive Engineers bi:long' to the !owes\ grade in this
.. B service and they are recruited.only through a competitive examination
in ·accordance with 'Part III of the Recruitment Rules. On their
.
initial recruitment, Assistant Executive Engineers are required to
'

undergo a period of probation fcfr two. years and they are confirmed
t

in the grade of Assist!lnt · Executive Engineers after successful
completion of the.period of probation. '
c
There is also another · Service in the Central .Public ,Works
Department called . Central Engine~ring Service Class II. This
Service consists only of.the grade of Assistant Engineers. The rules
ofrecruitment to the 'grade of Assistani Engineers are to be found in
the Central Engineering Service Class II R~cruitment Rules. There are
D two modes of recruitment laid down in these Rules; one is by direct
recruitment through the· fame competitive examination which is
held for selection of Assistant Executive Engineers, the candidates
lower down in rank than ihcise selected for the grade of Assistant
Executiv.e Engineers·, being selected for the grade· of Assistant
Engineers and the other is py process of selection from a subordinate
" ' -
Service called Class ·Ill SerVice. · Assistant Engineers . belong to
-·
Class II service, .unlike Assistant Executive Engineers who belong to
Class I Service !tut the posts which they hold are interchangeable,
each of them being in charge of a sub-division aud 'the nature of
work, responsibilities, powers and dutie~ discharged by them all is
F ,.identical. There is only a minor ·difference in the pay scales but.
otherwise for all practical. purposes, there is no· difference between
them so far as their functions 'ppwers and duties are con11erned. '

The next· higher grade ·above that of · Assistant Ei!;ecutive
Engineers is "that of Excecutive Engineers. Recruitment to the grade
G of Executive Engineers is made by .promotion from two sources,
namely Assistant Executive Engineers and Assistant Engineers.
Assistant 'Executive Engineers are eligible . for . promotion to
the 'grade of Executive Engineers after completion of five
years of service and they are promoted on the basis of
seniority-cum-fitness. Assistant Engineers on the other hand are
H eligible for promotion io · the grade of Executive Engineers
only after eight years of Service in their grade and for them, the
post of Executive Engineer is a selection post and ·they are selected
P.S. MAHAL v. UNION (Bhagwati, J.) 859

for promotion on the basis of merit; the selection being made .A
· through a departmental promotion committee presided over by a
member of the Union Public Service Commission. Prior to 25th
August 1949, there was no quota for promotion to the grade of
Executive Engineers from the grades of Assistant .Executive Engineers
and Assistant Engineers but. for the first time on 25th August 1949,
a quota· was. prescribed by the Central Government and i~ was B
provided that the vacancies in the grade of Executive Engineers shall
be filled by promotion from the grades of Assistant Executive
f '
Engineers a~d Assistant Engineers in the ratio of 75% to 25%. ·this
continued right up to the time the Recruitment Rules were enacted
in 1954 and that is why the last part of clause (2) of Rule 4 of the
Recruitment Rules provided that 75% of the vacancies in the grade
c
of Executive Engineers shall be filled by promotion of Assistant
Executive Engineers, the · rest of ·the . vacancies being filled by
promotion and or by transfer in accordance with Parts IV and V of
the R~cruitment Rules. This quota was altered with retrospective
- I effect from 7th September 1955 from 75 and 25 per cent to 66i and D
33! per .cent and it was again altered with effect from !st April 1972
to 50: 50 for a period of seven years.
Itappears that whenever ,Assistant Executive Engineers a·nd
Assistant Engineers were promoted to the grade of Executive
Engineers, they were first appointed on officiating basis. The quota
E
was however, for reas~ns which we shall present.ly discuss not
adhered to at the time of such promotions with the result that
Assistant Engineers· came to ·be promoted as officiating Executive
Engineers far · in excess of their quota while there was a
shortfall in. the promotions of Assistant Executive Engineers
so far as their quota was concerned. Now there were no statutory F
rules governing inter se seniority of Executive Engineers promoted
from the grades of Assistant Executive Engineers and Assistant
Executive Engineers but there was a Memorandum issued by the··
1'fome Ministry on 22nd June 1949 which laid down general principles
' ' of seniority applical;>le to all departments. This Memorandum
provided that "in respect of versons employed in any particular
G
grade, seniority should, as a general rule, be determined on the basis
·of length .of service in that grade as well a~ seJ1Vice in an equivalent
grade irrespective ofwhether·the latter was under Central or Provin- ·
cial Government iu India or Pakistan." The length of continuous,

r
officiation in the grade was thus taken as the yardstick for the
purpose of determining seniority in all departments of the g v _ ·
d a ,r.· .. h oern H
meutan ort1orari; m t e grade of Executive Engineers o th ·
ba~is. of this yardstick, Assistant Engineers promoted as ~ffic~atin:

'
860 SUFREME COURT REPORTS [l 984) 3 S.C.R. I
~
A
'
Executive Engineers within their _quota would
.
clearly be senior to
. '
Assistant Executive Engineers promoted later as officiating Executive
Engineers.

• However, Respondent No. I ·to 3 issued a seniority list on !st
July 1971 in which Executive Engineers promoted from the grade of
B
Assistant Engineers in regular manner on the basis of selection made by
Departmental Promotion Committee and within their quota were
shown as junior to several Executive Engineers promott\d. much
later from the grade of Assistant Engineers. Respondent No. I to
3 in .making ,this seniority list proceeded on the basis that the quota
c rule specified in the last part of sub-rule (2) of Rule 4 of the Recruit-
ment Rules necessarily implied a syst~m of rotation and it was required
to be strictly applied at the stage of confirmation in the grade of
Executive Engineers. In other words, out of three vacancies in the
grade of Executive Engineers," unless two reserved for promo ti op of
Assistant Executive Engineers were filled up . by confirmation of
·n such promotees, the third one for confirmation 'of Assistant \-
Engineer promoted as· Executive Engineer could not .be filled.
Consequently, all Assistant Engin~ers were treated as ad-hoc appoin-
tees without any claim to seniority until such time as they were
confirmed as Executive Engineers within their quota. The impact
of this decision of Respondent No. l to 3 was disastrous for a large
E number of Executive Engineers promoted from the grade of Assistant
Engineers on officiating basis, .. since many of them had to retire
without being confirmed and therefore, without any claim of seniority
.in the grade of Executive Engineers and even tod.ay, according to the
petitioners, there are. hul'ldreds of officiating Executive Engineers
promoted .from the grade of Assistant Engineers who are working
F
.in the Central· Public Works Department for decades without
confirmation and .according to the principle adopted in prnparing the
seniority list of lst July 1971, they would have no claim to seniority
iii the grade of Executive Engineer~ and woul.d become junior even
to recent promotees from the grade of Assistant Executive
G Engineers.

The senioriiy list dated !st July 1971 was preceded by
provisional seniority lists which were prepared annually on the basis
of the same formula and some of the Executive Engineers promoted
from the grade of Assistant Engineers, therefore, without waiting
H for the publication .of .the final seniority Jist dated !st July 1971
preferred writ petitions in the Delhi High Court challenging the
I> alidity of the provisional seniority lists. There writ petitionS" were

• •
P.S. MAHA1. UNION (Bhagwati. J.) 861
•
'
referred to a Full Bench since they involved questions of some A
importance and the Full Bench by a common judgment dated, 20th . ·
M:fy 1971 rejected the contentions of the~p~titioners and concurring
. with the stand adopted by respondent Nos. 1 to 3, held that the
quota rule applied not at the stage of initial promotion on
officiating basis but at the stage of confirmation· and ·rotational
B
formula for the purpose of determining seniority was implicit in the.
quota rule and on this view, the Full Bench upheld the provisional
seniority lists which, as already pointed out above, were on the same

.• lines as the final seniority list dated !st July 1971 and which fixed
seniority in the ·grade of Executive Engineers according to the
rotational formula ·based on the· quota rule. The petitioners in c
th~se writ petitions thereupon preferred Civil Appeal Nos. 1745, 1746
& 1747 of 1974 after obtaining special leave to appeal against the judg-
ment of the Delhi High Court. Some other Executive Engineers·
promoted from the grade of Assistant Engineers also filed a direct
writ petition in this Court being writ petition 489 of 1972, challenging
the seniority list of !st July 1971 on the ground. that the seniority D
worked out ·by applying the quota rule at the stage of confirmation
and adopting the rotational formula was illegal and that the seniority
ought to have been fixed on the basis of length of continuous· officia-
tion in the grade of Executive Engineers. · These three civil appeals
and writ petition were heard together and decided by_ a common judg-
ment of this Court dated 11th December 1974 vidc : A.[(. Subraman E
& Ors. etc. v. Union of India & ors~('). This Court accepted
contention of the petitioners that the quota rule was to be applied at •
the stage of initial promotion in officiating capacity to the 'grade of
Exec11tive Engineers and not at the stage of confirmation and that
it did not necessarily imply the rotational system and since the F
. general principles for determining seniority laid down in the
Memorandum dated 22nd June 1949 were, on their plain terms,
applicable, seniority in the grade of Executive Engineers was liable
. ; to be fixed on the basis of length of continuous officiation in that ·
grade as provided in the Memorandum dated 22nd June 1949. Some
·of the Executive Engineers promoted from the grade of Assistant G
Execu.tive En.gi_neers who were respondents 'in the· writ petition as
also 1~ the civil appeal tried to pieet the contention of the petitioner
by relymg on a subsequent Memorandum dated 22th December 1959
issued by the Ministry of Home Affairs, Government -0r'rndia but the
learned Solicitor General appearing on behalf of the Union of India
1 conceded that t.he said Memorandum had no application to the c
d · 1 ·
an was me evant and this Court also acce!lted the same vie\j'. This
ase
H

(IJ (1975)2 S.C.R. 979
862 SUPREME COURT REPORTS (198~] 3 S.C.R
'
A Court pointed out that since the cadre of. Executive Engineers .
consisted both of permanent as. well as temporary 'posts, the vacancies
referred to in the quota rule comprised vacancies not only in the
permanent posts but also in the temporary posts included in the
sanctioned strength of the cacfre, barring only such vacancies as were
purely of a fortuitous or. adventitious nature and the quota rule
B
applied at the stage ·when Assistant Engineers and Assistant Execu-
tive Engineers were promoted even if it be in an officiating capacity,
irrespective of whether the vacancies .were in permanent posts or in
temporary posts. This Court also observed that for the purpose of
·applying the quota· rule, .the year· must be taken as a unit and the
c quota rule must be applied in relation to the vacancies occuring in
any particular year. This Court also held, relying on the observations
f
in Bishan Swaroop Gupta v. Union of India & Ors('). (hereinafter
referred to as the Ist Bishan Swaroop Gupta case) that the ratio of
promotions in the grade of Executive Engineers in any particular
year was not depend~nt upon whether any persons from one class or
>-
D the other .1ere promoted or not and this was made ch;ar by giving an
Illustration that if there were three vacancies in a particular year, two
would go to Assistant Executive Engineers while one· would go to the
Assistant Engineers and even if there were no eligible Assistant
Executive Engineers who could be promoted to fill in the two.
vacancies belonging to their quota, one vacancy would ·have to
E be filled by promotion of an Assistant Eqgineer. If in such a case,
having regard tcf the exigencies of the situation two vacancies belonging
• to the quota of Assistant Executive Engineers had to be filled in by
Assistant Engineers for want of availability of eligible Assistant Execu-
tive Engineers, the appointment of Assistant Engineers to fill in such
F two vacancies would be irregular because that would be outside t.heir
quota but in that event, .observed the Court; they would have to he
pushed down to later years when their appointment could be regula-
rised as a result· of absorption in their lawful quota for those three
years. These conclusions reached by the court were summarised in
the form of following six proposition·s at the close of the judgment:
G
(I) When Assistant Engineers Class (II) are initially appointed
in a regular manner in accordance with the rules to
officiate as Executive Engineers, their seniority in service
in Grade I will count from the date of their initial
officiating appointment in· Class I provided, their initial
officiating appointment ·as Executive Engineers was withiv
H
their quota. \
(1) (1975) Supp. S.C.R. 491
) h,
P.S. MAHAL v. UNION (Bhagwati, J.)

(2) Their seniority will not be reckoned from the ;late of their A
futur~ confirmation in Class L

The above principle is, however, subject to one reserva-
. tion, namely, if an Assistant Engineer before his confirma-
tion in Class JI were appointed to officiate in Class I in the
grade of Executive Engineer, although within his quota, B
his seniority will count only from the date of his col)firina-
tion in Class II as permanent Assistant Engineer notwith-
standing his earlier officiating appointment ·as Executive
Engineer.

(3) The quota rule will be enforced at the time of initial
c
. recruitment, in an officiating capacity, to the grade of
·Executive Enginter a:nd not at the time of confirmation.

(4) The quota rule will be enforced with reference to.
vacancies in all posts, whether permanent or temporary D
including in the sa.nctioned strength of the cadre (except
such vacancies as are purely of a fortuitous or adventious
nature) and the operation of the quota rule will depend
upon ·the availability or non·availability or Assistant
Executive Engineers for appointment as Executive
Engineers. The non-availability of Assistant Executive· E
Engineers for recruitment to the grade of Executive
Eugineer will not postpone the regular recruitment of the
Assistant Executive Engineers within their quota. ·

(5) On.ce the Assistant Engineers are regularly appointed to
officiate as· Executive Engineers within their quota F
they will.be entitled to consideration in their own rights as
Class I Officers to further promotions. Their "birth matks"
in their earlier servic.e will be .of no relevance once they are
regularly· officiating in the grade of Executive Engineer
within .their quota.
G
(6) Jf Assist;rnt Engineers are recruited as Executive Engineers·
in excess of their quota in a particular year they will be
pushed down to later years for absorption when due within
their quota.
H
This Court accordingly allowed the writ petition and the civil
ap;uals anj directed respondent Nos.·~ to 3 to· a111end a~d revise the
864 SUPREME couRT REPORTS [1984] 3 $.C.R.

A seniority list of !st July 1971 in the light of the directions given' in .
the judgment and to give effect to the .revised seniority list so
prepared.

Though the aforesaid directions were given by ·this Court for
preparation of a revised seniority list as far back as 11th December
B
1974 respondents Nos. · I to 3 delayed implementation of those 1 .
. directions for a· period of over three months and hence the .petitioners
in writ petition No. 489 of 19.72 as. also petitioner No. 3 iri the
; .
present writ petition filed CMP No. 2563/75 on 18th April 1975 for
taking action against respondent Nos. I to 3 for contempt of court.
c Respondent No. I however, instead of complying with the directions
given by this Court and purging itself of the contempt alleged to
have been committed by it, filed CMP No. 3911 of 1975 dated 18th
July 1975 for clarification of the judgment on. the ground that they
felt 'some difficulty in implementing the directions issued by the Court.
This application for clarification was rejected by the Cou'rt on 21st
D July 1975 on the ground that the principles laid down in the judg-
ment dated !I th December 1974 were clear and the Courtt.did not
"see need to clarify them any further," and once again the Court.
ordered the first respondent to prepare and publish a final seniority
\
list in compliance with the directions given on !I th December 1974.
The Court kept th_e application for contempt pending and adjourned
E it to !st.September 1975. Respondent Nos. I to 3 thereafter issued
a revised seniority list on 14th August 1975. This seniority list was
accolnpanied by a Memorandum also dated 14th August 1975 in
t
which it was stated that the seniority list of Executive Engineers had
been revised in the light of the judgment oLthis Court dated I Ith
December 1974 . in acco'rdaoce with the principles set out in that
F
Memorandum. We shall discuss these principles in detail when we
deal with the various arguments advanced on behalf of the parties.
We may, however, point ·Out at this stage that, broadly. speaking,
for the purpose of determining . seniority in the grade of Executive
Engineers from and after 22nd December 1959, ·respondent Nos .•
G I to 3 · introduced the carry forward' principle and applied the
rotational formula. The officers who had been, with the concurrence
of the Union Public Service Commission, officiating as Executive
Engineers prior to 25th August 1949 and continued to do so there-
after were shown en, bloc senior to the officers al\'ointed after 25th
August 1949 and so far as the period between 25th August 1949 and
H 21st December 1959 was concerned, the inter se seniority of persons \ ·,,
promoted during that period from the grades of Assistant'Enginee~s
and Assistant· Btecutive Engineers ·within their respective quotas was
1'.s. MAHAL v.. ONION (Bhagwati, J.) 86S

determined in accordance with the length of their regular continuonus A
service as Executive Engineers, subject' to the qu tlilication that in
case· of Assistant ·Engineeis wl10 wore promoted as Executive
.Engineers prior to their confirmation in the grade of Assistant
Engineers, the length of their regular continuous service as Executive
Engineers for the purpose of determining seniority would .be compu-
ted only from the date when they were confirmed as Assistant B
Engineers. So far there was no dispute raised on behalf of the
petitioners and it was conc~ded that the principle for determining
•eniority applied by respondent Nos. I to 3 for the period upto
· 21st Oecembel' 1959 was valid. The petitioners also conceded that
those Assistant Engineers "who had been promoted in excess of the.ir
quota were rightly pushed dowri and adjusted within their quota in c
subsequent years. Thus, for example, Shri AK. Subraman, the
first petitioner in writ petition No. 489 of I 912, though promoted
in officiating capacity as Executive L1gineer on 27th December 1956.
with the approval of the Departmental Promotion. Committee was
pushed down, since his promotion was not within the quota of D
Assistant Engineers at the time when h~ was promoted and his
promotion was regularised on absorption within his lawful quota 1ll
a subsequent year, But .with effect from 22nd December 1959 a
departure was macte by respondent Nos. l to 3 ~rom the principle of
continuous officiation and carry forward principle wa• applied by
providing that 86 posts· earmarked for promotion of Assistant
Executive Engineers to the grade of Executive Engineers in accor-
dance with, their quota during the period prior to 22nd December
1959 which bad remained unfilled owing to non-availability of Assistant
Executive -Engineers upto 22nd December 1959 should be carded
forward and 86 Assistant Execuiive Engineers promoted after 22nd
December 1959 should be adjusted against these posts and they should F
be assigned seniority en· bloc immediately below the last Executive
Engineer promoted regularly priof' to 22nd ·December 1959. The
result was that the Assistant Engineers who.had beelf promoted as
Executive Engineers regularly within their quota subsequent to 22nd
December 1959 became junior to the Assistan.t .Executive Engineers
G
promoted against these 86 carried forward_ posts, even though they
might have been promoted as Executive Engineers long pr.ior to the
promotion of. such Assistant Executive Engineers. The Assistant
Executive Engineers promoted and adjusted agiinst these 86 carried
forward posts were given seniority above the Assistant E,pgineers
promoted regularly within 'their quota after 22nd December 1959
.
irrespective as to when such Assistant Executive Engineers were
' . H.
actua\ly promoled. After the Assistant Executive. Engineers .promoted
.,

8~6 $UPREME COURT REPpJ.tr$ [1984} 3 S.C.R •
A • as Executive Engineers were adjusted against these 86 carried forward
posts and given seniority en bloc over all Assistant· E~gineers
promoted n;gularly within their quota subsequent to 22nd December
1959, th~ rotatioiful formula was applied in respect of the posts for
the period subsequent to 22nd December 1959 and these posts were
adjusted on the basis of. the order in which the vacancies in. the
B respective quotas of Assistant· Exec'utive Engineers and Assistant
Engineers for promotion as Executive Engineers were allocated from
time (o time. The seniority inter-se of Assistant Executive Engineers
and Assistant Engineers promoted regularly within their respective
.. .

quotas. subsequent to 22nd December 1959 was thus. determined
by the application of the rotational formula based on the quota
c
prevailing at .the relevant time. But since it had not been possible·
to fill all the posts allocated to the Assist.mt Executive Engineers'
quota and some posts remained unfilled, they· were shown as vacant
.l
in the senio_rity list prepared according to· the roster based on the
rotational formula, so that as and when Assistant Executive Engineers \-

D mi~ht be promoted as Executive Engineers regularly within their
· quota, they would occupy the vacant posts earmarked for them in the
seniority list. The disastrous effect of this senip;ity list was that
most· of t~e Assistant Engineers promoted as Executive Engineers
regularly within their quota subsequent to 22nd December 1Y59 lost
a considerable number of places in seniority and were placed in much
E worse situation than what they were in under the seniorty list dated
1st July 1971 which was quashed at their instance in writ pettion
no. 489 of 1972. The petitioners in writ petition no. 489 of 1972
therefore !lied an additional affidavit on 26th Augµst 1975 pointing
out that the seniority list dated 14th August 1975, though purporting
to be iu compliance with the directions given by this court,
F .was. totally in defiance· of such directions and respondent Nos. I to
3 should therefore be committed for contempt of this court. It
seems that some of the Assistant Ex;cutive Engineers promoted as
.Executive Engineers were also dissatisfied with the seniority list ·dated
14th August 1975 since it took into account deputation vacancies in
the grade of Executive Engineers as regular vacancies for the purpose
G
of application of the quota rule and they also therefore filed their
objections to this seniority list. ·The parties filed their respective
affidavits in answer to the objections raised against the seniority. list
and after the record was completed, 'the court was invited io decide
the entire controversy between the parties. on the basis of these
H objections and affidavits. But . before the court could hear the
objections against the seniority list on merits, the first respondent
issued on 8th June, 1976 the Executive Engineers, Central
.t .

P.S. MAHAL v. UNION (Bhagwati, J.) 867
Engineering and Central Electrical Engineering Service (Group A) A
(Regulation of Seniority) Rules 1976 (hereinafter referred to as the
Rules of 1976) in exercise of the power conferred . under the proviso
to Article 309 of the- Constitution. These Rules. were deemed to
have.come into force with effect from 10th December 1974, that is
one day bc;fore the delivery of judgment by this Court in writ petition
• no. 489 of 1972 and . they substantially enacted in statutory form the B
· same principles which were . set out in the Memo,randum that
accompanied the seniority list dated 14th August 1975 and on which
that seniority list was based. Rules ·2(iii) and 2(iv) which are the
material rules provided inter alia as under :

"2(iii) :. The vacancies in the grade of Executive Engineer,
c
which were earmarked for promotion. from the grade
of Assistant Executive Engineer in accordance with
quotas prescribed for them during the period from
25th August, 1949 to 21st December, 1959, but could
not be filled would be carried forward and filled by D
Assistant Executive Engineers promoted ·on or after
22.12.1959. The inter se seniority of such officers will
be determined in the order of their seniority in the
grade of Assist~nt Executive Engineer-those who
were considered unfit for promotion being omitted and.
they will rank immediately below the.last Executive E
~ngineer, promoted prior to (12.12.1959).

(iv) After all the vacancies in the grade of Executive
Engineer, which were earm:rked. for promotion from
the grade of. Assistant Executive Engineer in ·accor- F
dance with the quotas prescribed for them during the
perio·d· from 25th August, 1949 to 21st December,
)959, but could not be filled, are filled by Assistant
Executive Engineers prompted on or after 22. 12.1959
and such officers assigned seniority as indicated in (iii)
above; all subsequent vacancies in the grade of G
Executive Engineer will . be filled by rotation of
vacancies beiween the Assistant. Executive Engineers ·
.and Assistant Engineers on the basis of quotas
prescribe'.! for. them ll:ir promotion as Executive
Engineer from 'time to time. The inter se seniority of H
Assistant Executive Engineers and Assistant Engineers
• so· promoted to . the grade of Executive Engineer,
-{ I
868 SUpREME COURT REpORTS [l 984] 3 s.c.R.
•
A will also be determined on the basis of such rotation
of quotas. For this purpose, .the recruitment roster
shall be drawn as under:-
. (a) When the reservation of the vacancies in the grade
of Executive Engineer for Assistant Executive ·
.B Engineer and· Assistant Engineer is 66-2/3% and
33-1/3% respectively (that is, upto 3i.3.1972)
!st Position ) '
) Asstt. Executive Engineer
2nd Position )
3rd Position Assistant Engineer
c 4th Position ) . ·
) Assistant Executive Engineer
5th Position ) .
6th Position .Assistant Engineer and. so on.
(b) Wherr the reservation of the. vacancies in the grade
of Executive Engineer for Assistant Executive
D
Engineers, ·and Assistant Engineers, is 50% each
• (i.e. from 1.4.1972 and for a period of 7 years:)
!st Position Asst!. Executive Engineers ·
. 2nd Position Asstt. Engineer
3rd Position Asstt. Executive Engineer
E 4th Position
.
Asst!. Engineer and so· on."
The petitioners thereupon filed the present writ petition
contending that the Rules of 1976 were not applicable
to the. petitioners and- other Assistant Engineers .
promoted as Executive Engineers regularly within
F their quota prior to 10th December 1974 and if
these Rules · were held to ,. be applicable then
they were unconstitutional and void. The petitioners,
in the Circumstances, prai ed in th~ writ petition that \. .
the seniority list dated 14th August 1975 should be,
quashed and a new seniority list should· be prepared
G on the basis of length of continuous officiation in the ·
grade of Extcutive Engineers so that Assistant Engi-
neers promoted as ilxecutive Engineers · regularly
• within their quota should have seniority over
Assistant Executive Engineers promoted later
in point of time.. The writ petition . was admitted and
H
rule ·nisi was issued upon it and after affidavits. in
t~ply were flied on behalf of the respondents, the writ
•

)> P.S. MAHAL v. UNION (Bhagwati, J.) 869
petition taken up for 4earing by this Court. - In the A
ctmrse of the hearipg, we made a strenuous effort to
bring about settlement of this long standing dispute
between Assistant Engineer and Assistant Executive
Engineers promoted as Executive Engineers but our
.effort proved futile and
. hence we are now proceeding
deliver our judgment. B
~ ~
The peiitioners challenged the validity of the seniority list dated
' • 14th August 1975 and
. the Rules of 1976 on the following
. grounds:
(A) The case of the petitioners apd other Executive Engineers
promoted from the grade of Assistant Engineers regularly
within their quota from and after 22nd December 1959 but c
before I !th December 1974 is covered by the-decision of
this Court in Writ Petition No. 489 of 1972 and Civil
1 Appeal Nos. 1745 to 1747 of l\74"and hence they' are
•f entitled to claim seniority, on the basis of length of continu-
ous officiation, over Assistant Executive Engineers promoted
as Executive· Engineers later in point of li!J:\e and the Assis- D
tant Executive Engineers promoted and adjusted against 86
carried forward posts cannot be_ given seniotity en bloc
over Assistant Engineers promoted as_ Executive Engineers
earlier nor can the rotational formula be applied retro-
j, - spect1vely so as to deprive Assistant Engineers promoted E
~ Executive Engineers of their seniority on the basis of length
of continuous officiation in the grade of Executive Engi-
• neers and the Rules of 1976 are, tJ that -extent, uncons_ti-
tutional and void as being outside the power Of the Central .
Government.
(B) Since the Rules of 1976. have been brought into force with .F
effect from I 0th December 1'974, they cannot affect the
·-
• JI
petitioners · and other Assistant Eng inters promoted as
Executive Engineers regularly within their quota prior to
that date and their seniority vis-a-vis Assistant Executive '
Engineers promoted as Executive Engineers must continue G
,tq be governed by the principle of length of continuous
officiation in the grade of Executive Engineers.

(C) If the Rules of 1976 are applicable for determining inter
se seniority of Executive Engineers promoted from the
.rf grades of_ A~sistant Engineers and Assistant Executive
H
Engineers within their· respective quotas from and after
22nd December 1959, they are unconstitutional and void
•

870 SUPREME COURT REPORTS [1984] 3 S.C.R.

A as offending Articles 14 and 16 of the ConstitutiQn, since
the seniority rules en1r0ciated in the Rules of 1976 being
closely linked· with the quota rule cor,tiµued maSj!ive
departure from the quota rule over a long period of tirlie
must result in the break down of the seniority rules and to

B
apply the seniority rules in suc!La situation would create
gross inequality of opportunity of employment violative of
Artie,lt:s 14 and 16. '
..
These were the broad grounds of challenge urged on behal( of tire
petitioners and we shall now proceed to deal with them in the order
c in which we have set them out.

RE : GRouN~ (A). This ground i.s based on the .decision
re11dered by this Court in writ Petition No. 489 pf 1972 and Civil.
Appeals Nos. 1745 to 1747 of 1974. It is necessary in order to
D, appreciate this .ground to know wholwere the partfos in writ peti-
tion No. 489 of 1972 and Civil Appeal Nos. 1745 to 1747 of 1974.
• The petitioners in writ pe!ition No. 489/1972 were Assistant
Engineers promoted as Executive Engineers between 27th December
• 1956 and 8th September, 1959 by a properly constituted Depart-
mental Promotion Committee and barring one petitioner: all the
E oihers had been promoted to the grade of Executive Engineers
prior to their confirmation as Assistant •Engineers. The promotion
of each of the petitioners when made was in excess of the quota of
Assistant Engineers and all of them were therefore required. to be
pushed down tp later years for absorption in their lawful quota for
those years and through this process, their promot.ions were regu-
larised on. different dates subsequent to 22nd Decem.ber. 1959.
The petitioners were thus all officiating Executive Engineers promo-
ted fromthe grade of Assistant Engineers regularly .within their
quottrnfter 22nd December 1959.. The contesting respondents Nos.
4 to 66 were Assistant Executive Engineers promoted as Ex..:cutive
G. Engineers within their quota between ! Ith March 1957 and 23rd
February 1966 and obviously therefore some. of them were Assistant
Executive Engineers promoted on dates subsequent to 22nd December
1959. · The contest between the petitioners and. respondent Nos. 4
to 66 was therefore not confined only to those Assistant. Engineers
H and Assistant Executive Engineers who were promoted \IS Execntive
Engineers regularly within their respective qupta prior to 22nd·
December .1959. but it elltended also to Assistant Engineers and
P.S. MAl!A'.L ·v. UNION (Bhagwati, J.,) 871
Assistant Executive Engineers promoted as executive Engine'ers
. subsequent to that date. The sanie position obtained also in regard A
to the contest between the appellants and the respondents in C.A.
Nos. 1745-1747of1974. The appellants in these appeals were all
Assistant Engineers promoted as Executive Engineers, and though
some of them were· promoted prior to 22nd December 1959, they
were.regularised irt their appointment by. absorption wit.hin their B
r • legitimate quota. subsequent to 22nd December 1959, since at the
I time when they were in initially promoted, their promotions were in
exce1?5 of the quota of Assistant Engineers and they were therefore
required to be pushed down to later years for absorption within their
quota. The large majority of the appellants, if uot all, were thus •
Assistant Engineers promoted as Executive Engineer regularly with- c
in thei.r quota after 22nd December 1959 and in C.A. N_os. 1745-47
of 1974 preferredjby them, they claimed seniority over the contesting
respondents who were Assistant Executive Engineers promoted later
in point of time. This claim of the appellants was disputed on be-
half of the contesting respondents who submitted tnat they had been
rightly given seniority over the appellants by adopting the rotational D
formula. This controversy as to seniority between two groups of Execu-
tive Engineers, on the one hand, the petitioners and the appellant!, a
large number of whom w~re promoted within their quota subsequent
to 22nd December 1959 and on the other, the contesting respon-
dents of whom also a sizeable number were promoted as Executive
E
Engineers after 22nd December 1959, was resolved by this Court by
its decision dated 11th December 1974 and it was held that the
quota rule has . to be applied at the. time· of initial recruit- ·
· men! in offiiciating capacities to the gf!ide of Executive Enginerrs·
and if any · Assistant Engineers are promoted Executive Engi-
neers in excess of their quota in a particular year, they would F
have to be pushed down to later. years for absorption when due
withfo their quota and more importantly, when Assistant Engineers
are promoted as officiating Executive Engineers regularly within
their quota, their seniority in the grade of Executive Engineer would
count from the date of their regular promotion within their quota
and op 1he basis of thiiholding, the Uni~n of India was directed to G
·amend and revise the seniority list and to give effect to the seniority
• iists so revised. It is therefore clear and we do not think this position
can admit of any doubt whatsoever, that even in regard to Executive
Engineers promoted from the grades of Assistant Engineers and
Assistant Executive Engineers subsequent to 22nd ·December 1959, H
the direction' given by th' Court was that their seniority inter se
should be determined on the basis of len~th of continuous officiatioq
872 SUPREME COURT REPORTS [1984] 3 s.c.ll.

A in the grade of Executive Engineers counted from the date of their
regular promotion witqin the r-espective quota. It is also obviOus
on a plain reading of the decision of this Court that the direction
given by it in regard• to determination of inter se seniority on the·
basis of length of continuous officiation was not limited to Executive
B Engineers promoted from the grades of Assistant Engineers and
Assistant E'Xecutive Engineers upto 22nd December 1959 but was on
its plain terms applieable to all Executive Engineers promoted
from the grades of Assistant Engineers and Assistant Executive
Engineers within their respective quota right upto !Ith December
• 1974 being the date of the decision of theiCourt. Moreover, it may
c also be noted, and this is .a circumstance of ·considerable weight,
that in any event the seniority list which wasairected to be amen-
ded and revised .by following the rule of seniority based on length
. of .continuous officiation was seniority list of !st July 1971 which
determinei;I inter sc seniority amongst the Executive Engineers
promoted from th~ grades Of Assistant Engineers and Assistant
D Executive Engineers righi up~o June, 1971. It is the inter se senio·
rity amongst these Executive Engineers covered by the seniority ·list
of !st July 1971 that was directed to be amended and revised on
the basis of length of continuous officiation in the. grade of Exe·
cutive Engineers. The Government of India· was therefore bound
to revise the seniority list of Executive Engineers on .the basis that
E
the inter' se seniority of Executive Engineers!drawn from the grades
. of Assistant Engineers and Assistant Executive Engineers should be
determined on the basis oflength of continuous officiation in service
after regular appointment within their respective. quota irrespective
of whether such regular promotiol! within the respective quota was '
F before or after 22nd December 1959. But the revised seniority list
dated 14th August 1975 issued by the Government oflndia was
plainly in defiance 'or this din~ction given by the Court and what
the Government of India did was to adjust the first 86 Assistant
· Executive Engineers promoted after· 22nd December 1959 against
-·
86 carried forward posts and to give them seniority en.bloc over all
G Assistant Engineers promoted as Executive Engineers regujarly
. within 'their quota subsequent io 22nd December 1959 and then to
apply the rotational formula in regard to the other vacancies suJ>.
•
sequent to 22nd December 1959.- The result was that most of the
Assistant Engineers promoted as Executive Engineers . lost a large
H number of places in seniority and were reduced to a position much
worse than that in which they were under the earlier seniority !ist of
!st July 1971. The success which the petitioners and the appellants
P.$. MAHAL v. UNION (Bhagwati, J.) 873

had achieved in writ petition No·. 489 of 1974 and Civil .Appeal A
Nos. 1745-47 cif 1974 was turned into a defeat ano they were badly
mauled in t)le ultimate.result. The question is whether despite the
" direction given by this Court in its decision da(ed 11th December
1974 and in face of it, ihe Government of India was justified in
fixing inter se seniority between .Assistant Engineers ·and Assistant
Executive Engineers promoted regularly within their quota from and B
.r after 22nd Thlcember 1959 on tl)e basis set out in the Memorandum
I • dated 14th August
. 1975 and the Rules of 1976. . ·

The Governmeut oflndia sought to avoid the binding obligation
of the direction given by the Court in its decision dated 1 lth·December c
1974 by making'the Rules of 1976 effective from 10th Decemher 1974,
one day prior _to the date of the decision. The· assumption underly-
ing this menoeuvre on the part of the 'Gove'rnment of India was that
.. ; if the Rules of 1976.were brought into force with effect from a date
prior to the decision of the Court in A.K. Subraman's case (supra)
they would,nullify'that decision and notwithstanding that decision D
recognising and giving effect to a different rule 'of seniority, namely,
the. rule of length of continuous officiation, the Rules of 1976 would
prevail and the inter' sc. seniority between Executive Engineers pro-
moted form the grades of Assistant Engineers and Assistant Exc.cutive
Engineers subsequent to 22nd December 1959 would be governed by .E
those Rules. This assumption, we are afraid, is wholly unfounded
•'• and the argument base.d upon it camrot be sustained. When this
Court has in so many terms'faid.down that the inter se seniority of
Executive Engineers promoted from the grades of Assistant Engineers
and Assistant Executive Engineers upto 11th December 1974 must be
held to be governed by the rule of length of continuous officiation F
and' the Government of India has been. directed by a writ of the
Court to amend and revise, the seniority list of !st July 1971 on
the basis of this rule of seniority, it is difficult to see how the effect
of this decision can be set at naught. and. the binding character
Of the writ issued against the Government of India can be •
abrogated by the mere promulgation of the Rules of1976 with retros-
' pective effect from 19th December 1974. It is significant ~o note that
the Explantory. Memorandum which was in the nature of statement
· of objects and reasons for the Rules of 1976 did not seek to override.
the effect of the decision in A.K. Subraman's case (supra) but on.
th~ contrary affirmed thal the principles of seniority set out in those H
rules were Jaid down on lhe basis of the decision in A,K. Subraman's
case (supra), The Rules of 1976 were in no way intended to set at
874 SUPREME COURT Rlll'ORTS [1984] 3 s.G ....

A- ·naught the decision in" A.K.Sub"raman's case (supra) in so far as it
laid down .the rule of seniority based on length of continuous
. officiation for Executive Engineers promoted ·rrom the grades of .
Assistant Engineers and Assistant Executive Engineers, but it was
ciaimed that they were made with a view to giving effect to the
. direction contained in that .d~cision. That is the reason why we do
B. n"ot find any non-obstante clause giving overriding effect to the rules
of seniority ·enunciated in tpe Rules of 19_76 notwithstanding the
decision in A.K.. Subraman's case (supra). Since the Rules of 1976
•
purport merely tc;> carry out the direction given in the decision irr
A.K. Subraman's case (supra) they cannot have the effect of overrid-'
ing that decision and absolving the Government of India from the
c obli.gation to implement this direction and the Government of India
must'therefore amend and revise the seniority list of !st July 1971 ·
by applying the rule of seniority based on length of contiflnous
officiation for determining inter ·se seniority of Executive Engineers
promoted from the grades of. Assistant · Engineers and Assistant
D Executive Engineers upto 11th .December 1974. The relative
position of the Exe((utive Engineers in regard to their inter se
seniority having been 'Crystallised in the decision in A.K. Subarman's
case (supra) and a writ having been issued by this Court directing
the inter se seniority of the Executive Engineers to be fixed on the
basis of leugth of continuous officiation, the Executive Engineers
E promoted from the gn1d~ of Assistant Engineers were entitled
to enforce the writ for determining their" inter se seniority
with the Executive Engineers promoted from the grade of
Assistant Executive Engineers in accordance with the rule. of length
of continuous officiation. This right of the Executive Engineers .
promoted from the grade of Assistant .Engineers under the decision
F in A.K. Sub.raman's .case (supra) could not be taken away ·by any·
thing contained in th~ Rules of 1976. The decision in A.K. •
Subraman's case (supra) continued to subsist and the Government·
of India was bound to determine inter se seniority amongst the
Executive Engineers in accrodance with the direction contained in
that' decision.
G·
The respondents in answer to this contention of the petitioners·
'
ieaned heavily on tbe decisiop. of this Court in Shri Prithvi Cotton
Mills Ltd. v. Broach Borough Municipality(') and submitted that
whatever might have been the rule of seniority on which the decision
H of this Court in A.K. Subraman' s case (supra) was based, the basis

(1) [1970) I SCRj388.
P.S. MAHAL v. UIBON (Bhagwati, J.) 875

of that decision was fundamentally altered in so far as inter se A
seniority of Executive Engineers promoted from the,-grades of
Assistant Engineers and Assistant Executive Engineers ·subsequent
' to. 22nd Decemeber 1959 was concerned, because Rules 2(iii) and ·
2(iv) of the Rules of 1979 retrospectively'provided for a different rule·
of seniority and that rendere.d the decision ineffective. and not binding
on the parties We have· carefully considered the decision of this B
~ t
Court in Shri Prithvi Cotton Mills case (supra) but we do· not think
. ;. _,." that this decisio!) lays down any such wide proposition .as is conten-
.ded for on behalf of .the respondents. It does not say that when-
ever any actual or legal situation is altered by retrospective legis-
·lation, a judicial decision rendered by a· Court on the basis of such
· factual or legal situation prior to the alteration would straight. away c
without more, cease to be effective an}! binding on the parties. It
is true that there are certain observatio~s in this decision which
seem to suggest that a court. decision may' cease to be binding when
... , i;
the.conditions on which lt based are so fundmentally altered that
the decision could not have been given in the altered circumstances. D
But these observations have to be read in. the light of the
he question which arose for consideration in that case. There, the
validity of the Gujbrat imposition of Taxes by Municipaltities
(Validation) Act, 1963 was assailed on behalf of the petitioners.
The Validation Act had to be enacted because it was held by this
Court in Patel Gordhandas. Hargovindas v. Municipal Commfrsioner, E
Ahmedahad(l) that since section 73 of the Bombay Municipality
Boroughs Act, 1925 allowed the Municipality to levy a 'rate' on ·
buildings or lands and the term 'rate' was confined to an imposition
on the basis of annualetting value, tax levied by the MJJnicipality on
land~ and buildings on the basis of capital value was invalid. Section
3 of the Validation Act provided that notwithstanding any thing F
contained in any judgment, decree or order of a court or tribunal
. or any other, authority, no tax assessed· or purported to have been
r ,, assessed by a municipality on the basis of capital value of a build-
ing or land and imposed, collected or recovered by the municipality
at any time before the commencement of the Validation Act shall G
be deemed to. have 'invalidly assessed, imposed, colle.cted or recover-
ed and the imposition, collected or recovery of the tax so assessd shall
be valid and shall be deemed to have ·-always been valid and' shall
not be called in question merely on the ground that the assessment
of the tax on the basis of capital value of the building or land H '

(I) [1964] 2 S.C.R. 608.
876 SUPREME COURT REPORTS (1984] 3 S.C.R.
A
was not authorised by' 1aw and accordingly any tax so assessed be-
for the com!llencement of the Validation·· Act and leviable for a
·~- '
period prior to such commencement but not collected or recovered
before such commencement may be collected or recovered
in accrodance with the relevant municipal law. .It will be seen that
B
by section 3 of the impugned Act the Legsilature retrospectively
imposed tax oil' building or Ja11d on the basis of capital value and if
the tax was already imposed,. levied and collected on that basis,
made the imposition· levy, collection and recovery of the tax valid,
notwithstanding the declaration by the Com:t that as 'rate', the levy
c was incompetent: This was ~!early permissible to the Legislature be-
cause in .doing so, the· Legislature did not seek to reverse the deci-
sion of this Court on the interpretation of the word 'rate', but
retrospectively amended ·the law by providing for imposition of tax
on land or building on the basis of capital value and validated the
imposition, levy collection and recovery of tax on that•basis. The
D decision of this Court holding the levy of tax to be incompetent on the '""
basis of the unamended law, therefore, became irrelevant and could
not stand in the way of fhe tax be.ing assessed, collected and recover·
ed on the basis of capital value under the law as retro,speciively
amended. That is why this Court held that the Validation Act was
E effective to validate imposition, levy, collection and recov~ry of tax
on land or building on the basis of capital value. It is difficult to
· see how this decision given in the context of a validating statute can
1~
, be of any help to the respondens. Here the decision in A.K.
Subraman's case (supra) which is relied upon by the petitioners is
F not a ·mere declaratory judgment holding an impost or tax to be
invalid, so that a validation statute. can remove the defect pointing
out by that judgment and validate such impost or tax. )3ut it is a
. decision giving effect to the right of the Executiue Engineers
promoted from the grade of Assistant -En"gineers.to have their inter
se seniority with Executive Engineers promoted from the grade of
Assistant Executive Engineers determined on the basis of rule oflength
of continuous officiation by issue of a writ directing th.e Government
of India to amend and revise the seniority list in accordance wirh
such rule of seniority. Rules 2(iii) and 2(iv) seek to substitute with •
retrospective effect a totally different rule. of seniority in place of •
that recognised and given effect by the decision in A.K. Subraman's
H
case (supra). That o~viously cannot be done. Rules 2(iii) and 2(iv) ·
cannot by retrospective alter ation of the rule of seniority nullify
the decision in A.K. Subraman's case which has recognised and
. given effect to an existing' rule of seniority and issue\I a writ against .
I ~
'
P.S. MAHAL v. UNION (Bhagwati, J) 877

the Government of lndia'on·that basis. If by reason of retrospeetive A ..
' .alteration of.the rule of seniority the decision is rendered erroneous,
the remedy may be by way of review, but so long as the decision
stands, it cannot be disregarded or ignored and "it must be obeyed by
·the Government of India despite Rules 2(iii) and 2(iv) so far as the
,.. ~ Executive "Engineers promoted from the grades of Assistant Engineers
} and Assistant Executive Engineers;upto 11th December 1974·are con- B
cerned. This view taken by us finds coq1plete snpport from the judg-
ment of one of us namely Bhagwati, J. in M.M. Pathak v .. Union of
India & Ors .(1) •

The respondents also relied heavily on 'the decision of this
Court in Bishan Sarup Gupta v. Union'~{ India<.') (hereinafter referred
to .as ihe 2nd Bishan Sar11p Gupta caJe). It was contended on be-
,.. ' half of the respondents that in the 2nd Bishan Sarup Gupta case,
this Co.urt upheld the rotaticinal rule of seniority which determines ·
seniority according to a roster of 1:1 amongst direct recruits and D
promotees in the Income-Tax Officer& (Class I) Service in the-circums-
tances closely resembling the present case and Rules 2(iii) and 2(iv)
· of the Rules of 1976 in so far as they gave sen~rity en bloc to the
. Assistant Executive Engineers promoted to the 86 carried forward
posts of Executive Engineers and applied the rotational formula for
the purpose of determining seniority amongst Assistant Engineers
and. Assistant Executive Engineers · promoted to the subsequent
vacancies in the grade of Executive Engineers, must, therefore, be
upheld by us on analogi·cal reasoning. This contention, plausible
though it may seem, is, in our opinion, withouf force and must be,
rejected. The situation in the 2nd Bishan Sarup G~pta case was
F
fundamentally oiffe"rent from that in the present case. The Court,
in the Jst Bishan Sarup Gupta case, . came to the conclusion that on
16th January, 1959 the quota rule for filling up vacancies amongst"
I nco!!Je-Tax Officers (Class I) collapsll!! by reason of upgrading of
100 Class II posts and with!that'also went. the seniority rule set out
in Rule 1 (0 (iii), .because this'rule of seniority could be upheld as
constitutionally valid only ifthe'rquota rule was strictly observed,
with only minor deviations permitting, and the question, therefore,
arose that "if the seniority_ rule 1 (fl (iii) ceased to be operative from
16th January, 1959' how. is the.inter-se seniority between the.direct
recruits and the promotees to be fixed thereafter ?" There was no
H
(I) [1978] 3 SCR 346,
(2) [!975) I SCR J04.
87!f SUPREME COURT REPORTS [1984) 3 S.C.R·
A
specific seniority rule to determine inter·s.e seniority between the
direct recruits and the proinotces appointed regularly within their
respective quota from and after 16th January, 1959 and though, in
the absence of any specific seniority rule, the Court could 'have
B applied the' residuary rule based on length of continuous officiation,
the Court did not do so.because it felt that since the old seniority
. Jiad ceased to operate by reason of the .Infringement if the
. rule
guota rule, it would be for the Government to devise "a Just and
fair seniority rule as between the direct recruits and the promotees
• for being given effect to from 16th January, 1959." It was pur-
c suant to this direction given by the Court that the rotational rule. of
seniority impugned in the 2nd. Bishan Sarup Gupta case was made
the Government and this seniority rule did not seek to undo the ·
effect of that decision. Now, in the present case also,· by reason )-
of clause 3 of the Memorandum dated 22nd December, 1959,' the
rule of seniority based on length of continuous officiation enun·
D
ciated in the Memorandum dated 22nd June, 1949 came to ·an end
and the(eafter until the Rules of 1976, were formulated, .there was
no specific rule of seniority which governed inter-se seniority bet·
ween Assistant Engileers arid Assistant Executive Engineers promo·

.E
te.d as Executive Engineers regularly within their respective quota
subsequent to 22nd Decemb!!r, 1959. The Memorandum dated
22nd December, 1959 was undoubtedly in force, but for reasons
•
which we shall ·presently state, neither Paragraph 5(ii) relied on by
the petitioners nor paragraph 6 relied on by the respondents had
any application for determining inter-s_e seniority in the grade of
F Executjve Engineers. The Court could h~ve, therefore, followed
the same course as in the I st Bishim Sarup Gupta case · and in the .
absence of a spcific rule of seniority to determine icter se seniority
amongst Assistant Engineers and Assistant ExecJ!tive Engineers
· promoted to the grade of Executive Engineers from and . after 22nd
December, 1959, the Court could have directed the Governmeq.\ of
G In.dia to evo\~e a new rule of seniority. But the"'Court instead
chbse to adopt the rule of seniority based on length of continuous
officiation and directed inter se seniority amongst Assistant
Engineers and Assistant Executive Engineers prom_oted to the grade
of Executive Engineers regularly within their re speetive quota upto
the date of its decision, to be determined on the· ,application· of
H this rule of seniority based on length of continuous officiation. This
course, the Court was clearly entiled to adopt, because, as we shall
presently point out, when there is no specific rule governing deter- .
. mination of seniority in a grade, the norll!al rule applfoable would be
p .s MAHAL •. UNION (Bhagwati, J.) ~
879

to determine seniority on the basis of length of continuous officia- A
tion in the grade and the Court could certainly adopt this residuary
rule and direct inter se seniority in the 'grade to be fu\ed on the
application of this seniority rule. It will .thus be seen that while in.
Jst Bishan Sarup Gupta case, the Court left it to the Government
to decide what rule of seniority should be dev.\sed for determining B ..
inter se seniority .between !he· direct recruits and. the promotees
appointed from and after 16th January, 1959, the Court in the pre-
sent case did not 'leave .it to the Government to evolve a riew Rule
of seniority for determining inter se seniority amongst Assistant
Engineers and Assistant-Executive Engineers promoted as Executive c
Engineers from and after .22nd December, 1959 but itself laid
down that su,ch inter se se11iority shall be determined on the appli-
cation of the rule of seniority based on length of continuous offi-
ciation. This constituted a 'vital difference between the I st .Bishan

.. ;
Swarup Gupta case and the present case and the government was
not .entitled, as in the case .of Bishan Swamp Gupta and other
Income-Tax Officers;to evolve a new rule of seniority different
·D

from that recognised and given efftct to by the Court in A.K.
Subraman's decision for determining. seniority amongst Assistant·
Engineers and Assistant Executive Engineers promoted as Executive
Engineers regularly with in their respective quota from and after E
22nd December, 1959. To permit the Government to do so would
be in plain defiance· of the direction given by the Court in A:K.
Subraman's case.
•
The petitioners reiled strongly on paragraph 5 (ii) of the F
Memorandum dated 22nd December, 1.959 and contended that the
seniority rule laid down in th.is· Paragraph governed the determi-
nation of seniority amongest f:xecutive Engineers promoted from
the Grades of Assistant Engineers and Assistant Executive Engi-
neers from and after 22nd December, 1959 and if this rule of G
'
seniority ~as applied, the Assistant Engineers promoted regularly
within their quota after selection by the Departmental promotion ,
Committee in any year would rank higher .than the Assistant
Executive Engineers promoted;in the subsequent years and in that
view, the seniority list dated 14th August, 1975 and the Rµles of
1976 in so far as they give seniority en bloc to the .Assistant Exe- •
cutive EngineeI.s. promoted to the 86 carried forward posts of
Executive Engineers and apply the rotational formula for the pur- II
' pose of determining seniority · amongst Assistant Engineers and
Assistant Executive Engineers promoted to the subsequent vacau...

•
..
SUPREMi COURT REPORTS [1984] 3 s.c ..R.

cies in the Grade of Executive Engineers, would clearly be uncons-
A titutional and void as retrospectively affecting the seniority o·f the
Executive Engineers promoted .from the Grades of Assistant
Engineers and Assistant Executive Engineers within their respective
• qyota from and after 22nd December, 1959. This contention was
urged before us with a certain degree of plausibility but 0:1 close
B
scrutiny we find th-at it is not well founded. There are two formi-
dable answers to this contention and. each answer is sufficient to
warrant rejection of this contention.
• '
·o In the first place, it may be pointed out that this contention i~
no longer open to the petitioners in view of the decision 1n · AK
Subraman's case where the Court applied the rule of s~iority based
on len.gth of continuous officiation for determining inter-se seniority
amongst· Assistant' Engineers and Assistant Executive Engineers
D promoted as Executive Engineers regularly within their respective
quota upto 11th December, 1974, being the date of the decision and
directed such inter•se seniority to· be determined on the application
of this· seniority rule. · Even if the rule of seniority. set out in
Paragraph S(ii) were otherwise applicability must stand negatived by
the decision in A.K. Subraman's case which is binding on 'the
E parties. Moreover; it may noted that in A.K. Subraman's case it was
conceded on behalf of respondents Nos. 1 and 2 that ·this Memo-
randum was not relevant to the question of determination of )...
• seniority between the petitioners and the respondents. In that cas~
though the promotion of some of the petitipners was regularised by
F absorption in their lawful quota subsequent to 22nd December, 1959
and some of the respondents were also promoted as officiating
Executive Engineers within the - their quota after that date, the
learned counsel appearing on b.ehalf of the petitioners did not
contend that Paragraph 5(ii) of the Memorandum dated 22nd
G December, 1959 was applicable to determine inter·se seniority
amongst such of the petitioners and respondents as were promoted
after 22nd December, 1959 and agreed with the concession made on
behalf of fespondents Nos. 1 and 2 that the Memorandum dated
22nd December 1959 was irrelevant :and likewise no discordant
notewas struck also by the learned counsel appearing ·on behalf of the
e respondent Assistant Executive Engineers and it ,was not contended on
their behalf that so far as the petitioners and the respondent Assistant
· Executive EIJtineers promoted rcguh1rly within iheir lawful quc:ie
subsequent to 22nd December, 195919Cre concerned, their senioriyt
' . .

•
,

P.s. MAHAL v. UN(ON (8hagwati, J.) 881

was governed by- Paragraph 5(ii) or any other paragragh of the A
Memorandum dated 22nd December, 1959. Therefore, it was the
common case of all the parties including the Assistant Engineers
. and the Assistant Executive Engineers promoted as Executive
Enginee~s that neither the rule of seniority set out in paragraph 5{ii)
nor the seniority rule set out in any other paragraph of the Menw-
randum dated 22nd December, 1959 ivas applicable. B
I
But; since the case has been argued fully before us we would
·consider the applicablity of Paragraph 5(ii) of the Memorandum
dated 22nd December, 1959 on merits. There can be no doubt that
the contention of the petitioners 'based on Paragraph 5(ii) would c
have had great force if on a true interpretatiol) of that paragraph,
the rule of seniority set out in that provision could be held to govern
, the. determination of seniority amongst the Executive Engineers

..
·-'I
'
promoted from the. Grades of A sistant E'ngineers and Assistant
Executive Engineers from and after 22nd December, 1959 being th~
date when this rule of seniority came into force. But we are of the D
view that' the rule of seniority set out in ·Paragraph 5(ii) of the
Memorandum dated 22nd December, 1959 could have no application
in case of promotio~s made to the Grade of Executive Engineers
from the Grades of Assistant Engineers and Assistant Executive
Engineers. Paragraph 5(ii) of the Memorandum dated 22nd
.Deceinber, 1959·read.as follows: E

"5(ii) : . Where promotions to a grade are .made from more
than one grade, the eligible persons shall be arranged in sep·
erate lists in the order of their relative seniority in their resp-
ective grades. Thereafter, the Departmental Promotion Com- F
mittee shall select persons for promotion from each list
upto.the prescribed quota and arrange .all the candidates
selected from diffe~ent lists in a consolidated order of
merit which will determine the seniority of the persons on
promotion to the higher grade."
G
and the rule of seniority set out in this provision was explained by
the folfowin g illustration given in an Explanatory Note attached to
the Memorandum dated 22nd Decemb~r, 1959 ;

"Note : ·If separate qu.otas for proµiotion have not
already been prescribed in the relevant ·recruitment rules, H
. the Ministries/Oepartments .may do so, now in consultation
with.the Oommission wherever necesssary."
'
882 . SUPREME COURT REPORTS (1984) 3 S.C.R.
•
This rule of seniority, on the plain terms of Paragraph S(ii)
applied only in a situation "where promotions to a Grnde are made
from more than one .Grade" and the .argument of respondents
Nos. 4 to 190 was that when this provision spoke of promotions to
a Grade from more than one Grade,' it referred to promoiions with-
in the same service, that is, where the grades from which promotions
are made as also the grades of promotion are all grades .within the
B same service, but where one of the grades. from which promotions
ar~ made belongs to a lower service than the grade of promotion
and the promotion is therefore from a lower service to a higher
servic~, the rule of seniority set out in this provision could have no
application. Respondents Nos. 4 to 190 in the circumstances sub-
(J mitted tliat since the grade of Assistant Engineers was in Class II
Service while the grade of E:xecutive Engi_neers was in Class I
Service, the rule of seniority laid down in this provision was not
applicable for determining seniority in the grade of Executive
Engineers. We do not think this argument advanced on behalf of. •••
tespondents Nos. 4 to 190 is well.founded. The postulate for the
D applicability of the rule of seniority set out in this provision simply
_reads : "Where promotions to a Grade are made from more than
one Grade" and· it. does not introduce any requirement that the
grades from which the promotions are made should belong to the
s.ame service as the gaade of promotion. ·It.is no _doubt true that
E . the illustration given in the Explanatory Note refers to promotions.
from the grades of Upper Division Clerks and store keepers
to the grade of. Head Clerk and all these grades beloug to
Class III Service but it would not ·be right to limit the appli-
cability of the seniority i:ule set out in this provision. by reading
into it a limitation which is not there, merely because .an illustration
of the applicability of the seniority rule given in the Explanatory
Note relates to a case where the grades are all in the same service.
If the interpretation contended,for on behalf of respondents Nos, 4
to 190 were correct, the rule of seniority set out in this provision
would not be applicable where both the grades, from which the
promotions are made, belong to a lower service while the grade of
G promotion belongs to a higher service and for such a case, there
would be no rule of seniority laid down in the Memorandum date
22nd December, 1959 which would be applicable. We are clearly
of the view that the rule of seniority set out in Paragraph S(ii) would .
be attracted in all c~ses where promotions to a grade are made from
II
more than one grade, irresp.ective as to whether these grades all
belong to the same service or not and, therefore, the applicability of
of this rule of seniority could not be repelled in the present case on
l'.S. MAHAL v. UNION (Bhagwati, J.) 883

the ground that the grade of Assistant Engineers belongs to Class II A
Service while the grade of Executive Engineers belongs to Class I
Setvice.

But, there is a more fundmental rea$on why the rule of senio-
rity ~et out in paragraph S(li) of the Memorandum. dated 22nd
December, 1959 must be held to be inapplicable in the case of • B
promotion to the grade of Executive ·Engineers. The promotion
from the grade of Assistant Executive Engineers was by selection on
merit while the promotion from the grade of Assistant Engineers
was on the basis of senior.ity-cum-fitncss. Then; was no element of
selection on merit in the case of Assistant Engineers as in the case c
of Assistant Executive Engineers and .the entire basis of promotion
from the two grades was different. Moreover, this provision postu·
lated the existence of one single Departmental Promotion Committee
for the selecting persons the promotion · from the grades of
Assistant Engineers and Assistant Eicecutive Engineers and it was this
single Departmental. Promotion Committee, which was to "arrange
all the candidates selected from ·different lists in a consolidated
order of merit which wilt determine the seniority of persons on pro-
motion" to the grade of Executive Engineers. Now, there was some
controversy between the parties whether in the case of promotions
to the grade of Executive Engineers, there was one single Depart-
. mental Promotion Committee for selecting person from the grades E
of Assistant Engineers and Assistant Executive .Engineers or there
were separate Departmental Promotion Committees-one for selec-
tion from the grade of Assistant Engineers and '.the other for -selec-
tion from the grade of Assistant Executive Engineers. Respondents
Nos. 1 and 2 in the counter affidavit filed by S.R. Roy Choudhury F
asserted that in case of selectionifrom the grade of Assistant
Engineers; the Union PubliciService Commission was associated with .
the Departmental ·Promotion Committee~while in case of selection
•from the grade of Assistant Executive Engineers, the Union Public.
Service Commission was not so associated and a combined grouping
of the persons sought to be promoted from the two groups was, G
therefore, not possible. The first petitioner however, jn the rejoinder
affidavit filed by him on behalf of the petitioners disputed the
correctness of this avernment made on. behalf of respondents Nos. I
· and 2 and submitted that it was wrong to suggest "that the UPSC is
not associated with the DPC because in all the selections concerned· H
with the petitioners and the respondents, a Member of the UPSC

•
884 SUPREME COURT REPORTS (1984] 3 S.C.R.

was on both the DPCS" and in this. connection he relied on rule 4
of Section 7 of Chapter Vat page 48 of the CPWD Manual, Volume
I (1970 Edition). It is not necessary for the purpose of determining
A t,he applicability of the rule of seniority in Paragraph. 5(ii) of the
· Memoranrlum. dated 22nd December, 1959 to d·ecide whether a
. Member of the Union Public Service Commission was associated
with the Departmentar Promotion Committee for selection of
AssistantExecutive Engineers or not. It is implicit in the statement
B of the first .petitioner in his rejoinder affidavit that there were two
• •
different Depar.mental Promotion Committees for selecting persons
for promotion from the grades of Assistant Engineers and Assistant
. Executive Engineers. The composition of the Departmental pro-,
motion Committees being different and the criteria for promotion to
·!lie grade of Executive Engineers z.lso being different in the case of
c Assistant Engineers and Assistant Executive Engineers, it is difficult
· to conceive how combined merit rating on the persons sought to be
promoted from the two groups could . possibly be made as envisaged
in paragraph 5(ii) of the Memorandum dated 22nd December, 1959.
It was suggested that a comparative assessment of the merits· of the
D
persons chosen from two groups could made on the basis of still
be as to which Departmental Promotion Committee would their
confidential reports, bnt the. question would still be as to which
Departmental Promotion Committee would make the comparative
assessment and eyen if the Departmental Promotion Committee
fo~ seleciion of persons to be promoted from the two groups was the
E same, it is difficult to appreciate how and comparative assessment
of the merits .could be made on the basis bf ~onfidential reports.
The confidential reports of the officers from the two groups would · ~·

not be written by the same officer or even by officers of equivalent
rank, because in the case of Assistant Engineers promoted as officia-
. ting Execµtive E.ngineers in excess of their quota and c~nsecjuently
ff pushed down ·for being absorbed within their quota in fater years,
their confidential reports for the preceding three years would be writ~
ten in respect of their performance as officiating Executive Engineers
G. by the Superintending Engineers, while in the case of Assistant
Executive Engineers, their confidential reports for the preceding
three years would be wrirten in respect of their performance as
Assistant Executive Engineers by the Executive Engineers. Thus at
the point of time when in any particular year, the officers of the
F. two streams meet for their ·seniority in _the grade of Executive
Engi.neers, their confidential reports would not be by the same
•
officers or eve.n by officers of equivalent rank and it would be .almos 't
P.S. MAHAL v. UNION (Bhagwati, J.) 885
impossible to arrive at a comparative .assesment of their respective A
merits for the ptlrpose of working out the seniority rule.in Paragraph
5(ii) of the Memorandum dated 22nd December, 1959: Moreover,
in fact tliis seniority rul~ was never regarded as applicable in case of
promotions to the grade of Executive Engineers and the procedure
set ont there was not followed at any time while making promotions
from the ·grades of Assistant Executive Engineers and Assistant
B
Engineers to the grade of Executive Engineers. It is, therefore,
clear that the seniority rule set out in Paragrah 5(ii) of Memorandum
dated 22nd December, 1959 could not be invoked for determining
interse seniority between Executive Engineers promoted from the
grades of Assistant Engineers and Assistant Executive , Engineers
and' the petitioners could not legistimately found any argument c
upon thaf seniority rule for the purpose of invalidating the seniority .
list dated 14th August, 1975 and the Rules of 1976.

It is interesting to note that while the petitioners relied on
Paragraph 5(ii) of the Memorandum dated 22nd December 1959, res-
pondent Nos. 4 to 190 rested their argument on Paragraph .6 of this. .D
Memorandum. They contended that the rotational formula adopted
for determining seniority a: ongst Assistant Engineers and Assistant
Executive Engineers promc <ed to the grade of Executive Engineers
from and after 22nd December, 1959, 'Subject to precedence being
given ;n bloc to Assistant Execeutive Engineers promoted to fill in
E
86 carried forward posts of Executive Engineers, was in consonance
with Paragraph 6 of the Memoranduni dated 22nd December, 1959
and did not in any way affect retrospectively the inter se seniority of
the Executive Engineers promoted from the grades of Assistant
Engineers and· Assistant Executive Engineers. We are afraid this
contention is not open to respondent Nos. 4 to 190 in view of the F
decision of this Court in AK. Subraman's case and moreover as
already pointed out by us while rejecting the contention of ·the
petitioners based on Paragraph S(ii), it was the· common case of all
the parties including the Assistant Engineers and the Assistant
Executive Engineers promoted a~' Executive Engineers that the
Memorandum d~ted 22nd December, 1959 was irrelevant for the G
purpose of determining the inter se seniority amongst the Assistant
Engineers and Assistant .Executive Engineers promoted fr()m and
after 22nd December 1959 and .neither the.seniority rule set out
Jn Paragraph 5(ii) nor that set out .in Paragraph 6 wa~ applicable.
But eyen so since full arguments have been advanced before us, we H
propose to consider the applicability of Paragraph 6 on merits. It
is necessary. in order to appreciate the contention raised on behalf .
886 SUPREME COURT REPORTS ' . (1984] 3 S.C.R
A
of respondent Nos. 4 to 190 to examine t])e scope and ambit of
Paragraph 6 of the Memorandum dated 22nd December, 1959 which
reads as follows :

· "6. Relative seniority or Direct Recruits and Promotees:
B
The relative seniority of Direct recruits and of pro-.
motees shall b!J determined according to the rotation of
vacancies between direct recurits and promotees which shall
be based on the quotas of vacancies reserved for direct
recruitment and promotion r~spectively in the Recruitment
Rules." ·

This paragraph on its plain. terms laid down a rule for deier-
mining the r.elative seniority of direct recruits and promotees in a
grade to which appointments were required to be' made by direct
'o. reeruitment and promotion according to a certain fixed quota.·
This rule of seniority obviously could have no application for deter- •
mining inter se seniority in the grade of Executive Engineers, since
both Assistant Engin>ers'and Assistant Executive Engineers were in-
ducted ill the grade of Executive Engineers hy. promotion and Assis-
tant Executive Engineers apointed in the grade of Executive Engineers
did not bear the character of direct rec.ruits. It is, of course, true that
· Assi~tant Executive Engineers wete initialy taken up as direct recruits
in the grade· of Assistant Executive· Engineers in fact that was only
method of entry into the grade of Assistant Executive Engineers-
but when they. entered the grade of Executive Engineers, they did
so by way of promotion just like the Assistant Engineers. There .
F was, therefore, in the present case, no question of determining
relative seniority· between direct recruits and promotees. Both the
Assistant Engineers as well as the Assistant Executive Engineers
were promotees to the grade of Executive Engineers and Paragn1ph ..
6 of the Memorandum dated 22nd December, 1959 had, therefore,
no application for determining inter se seniority between thell) in
·G the grade of Executive Engineers.

We have considered the applicability of Paragraphs. 5(ii) and
6 of the Memorandum dated 22nd December, 1959 ·on merits and
come~ the conclusion that the rule ol'seniority set' out in neither .
H ofthese two .t>aragraphs could have any application. in the present
case. But at the same time, we cannot escape the conclusion that
by reason of clause 3 of the Memorandum dated 22nd December,
P.S. MAHAL v. UNION .(Bhagwati, J.) 887
A.
1959, the rule of seniority prescribed in the Memorandum dated
22nd June, '1949 stood repealed, except in regard to .determination
of seni)lri~ of persons appointed to the grade of Executive
Engineers 'prior to 22nd December, 1959. There was, therefore, no
rule of seniority )aid down either statutorily or by any executive
order or instruction for determining seniority amongst Executive · B
Engineers promoted from the grades of Assistant Engineers .and
Assistant Executive Engineers regularly· within their respective
quota from and after 22nd December, 1959. But it is now well-
settled as a result of several decisions of this Court that in the
·absence of any statutory rule or ·executive memorandum or order
laying down a rule for determining seniority in a grade, the n·ormaJ c
rule applicable would be to determine seniority on the basis of ·
length of continuous officiation in service.. Vid'e the observations
of Palekar J. in -B.S. Gupta v. Union of India.(1) To the some
·effect we find the observations Krishna Iyer, 1., speaking on behalf
of the Court in Chauhan v. Stale of Gujarat(•) where the learned
D
Judge said at page 1057 of the report :

''Seniority, normally, is measured by length of con ti-
nnous officiating service-The actual'!s easily accepted as
the legal."
.
Chandracl\ud, J., as he then was, also . reiterated the same.
E

principle when he ·said in S.B. Patwardhan v. State of Maharashtra(•)
that "all other factors· being equal, continuous officiation .in a non.
fortuitous vacancy ought to receive due recognition in determining
rules of. seniority as between persons recruited from different
· sources, so Jong as they be long to the same cadre, dircharge similar F
functions and bear similar responsibilities." 'The inter se senfority
of Executive Engineers promoted from the grades of Assistant
~
, _1 Engineers and Assistant Executive Engineers regulariy within their
• respective quota from and after 22nd December, 1959 was, therefore,
determinable on the basis of !ength of continuous officiation in the
grade of Executive Engineers and the Court· was, in the circums-
G ,
tances, justified in A.K. Subraman's case in holding in. paragraph
1 of the summary of its co11clusions that "when Assistant Engineers
(Class II) are initially appointed in a regular manner in accor-
danee with the rules to officiate as Executive Engineer, their seriio.

(I) [1975] I s.C.R. 104 at 113.
(2) [1977) l S.CR. 1037.
(3) (1977] 3 S.C.R. ·775 at P•J• 800,
88& SUPRllME COURT REPORTS [1984] 3 s.c.R •.

rity in service in Gr.ade I will counHrom the date of their initial
officiating appointment as Executive· Engineers was within their
quota." It is undonbtedly irue that in reaching this conclusi~n the
:Court proceeded on the assumption that ''the Memorandum dated
22nd June 1949 was clearly applicable" and equally jt must be con-
B ceded that this assumption was erroneous· in so far as inter se
seniority between Assistant Engineers and Assistant Executive •.
Engineerrs promoted from and after 22nd December, 1959 .was
copcerned, sin~e the ruJe. of seniority based on length of conti·
nuous officiation enunciated in the Memorandum dated 22nd June,
1949. was repealed by the Memorandum dated 2~nd December,
1959. But it can hardly be disputed that the conclusion reached by
the Court was correct in law, because in the absence of any specifi¢
rule of seniority governing determination of inte[-se seniority bet
ween Assistant Engineers and . Assistant Executive Engineers pro·
moted fro'm and after 22nd December 1959 · their inter~se seniority ·
' '
was clearily governed by the rule of seniority based ·on length of
D
Continuous officiation. We do not think it ivould be right to
assnme that .the Court in A.K. Subraman's case overlooked that
·the rule ofseniority laid down in the Memorandum dated 22nd
.June, 1949 was ·repealed by the Memorandom dated 22nd
December, 1959 and it is, therefore, quite possible that when the
E Court said that "the Memorandum of June 22, 1949 will clearly
apply", whafthe Court meant was that the rule of seniority based
on lengih of continuous officiation would clearly apply for deter·
mination of inter-se seniority between ·Assistant Engineers and
Assistant Executive .Engineers promoted to the grade of Executive
-Engineers. We 'may point out that in any event. the decision in
F A.K. Subhrama11,'s case holding that the inter-se seniority bet·
ween Assistant Engineers. and · Assistant Executive Engineers
prornoted as Executive Engineers should be governed by the rule
of seniority based on length of contin~ous offici~tion and that their
inter-se seniority should be determined on the application of thi~
G rule of seniority, must be regarded as binding on the parties and it ·
is not open to the petitioners or .to the respondents to rai-se any con-
tention contrary to. this conclusion reached by the Court; This
conclusion, we may repeat, was not limited to Assistant Engineers
and Assistant Executive Engineers promoted as Executive Engineers
prior to 22nd December, 1959 but also covered Assistant E:ngineers
and Assistant Executive Engineers promoted. subsequent to that
date. right upto the date of the decision of the Court. We must,
therefore, hold that, notwithstanding Rules :i(iii) (Ind 2(iv) of the ·
P.S. MAHAL v. UNION (Bhagwati, J.) 889'

Rules of 1976, the inter-se seniority between Assistant Engineers A
and Assistant Executive Engineers promoted regularly within their
respective quota upto ilth December, 1974 must be determined on
the basis of length of continous officiation in the grade of Executive
Engineers, subject of course to the length of continuous officiation
in the case of Assistant Engil)ecrs being computed from the date· of
their confirmation as Assistant Engineers. . 11

Before we proceed to consider grounds B and C- it would be
conventions at this ·stage to ·deal with some of the contentions
advanced by respondent Nos. 4 to 190 on behalf of the Assistant
Executive Engineers promoted as Executive Engi~eers against the c
va!ldity of the seniority list dated 14th August 1975 ;·n .so far as
ce.rtain. aspects of ·that seniority list are concerned. Though the
seniority list dated 14th August, 1975 was substantially in .favour of
Assistant .Executive Engineers promoted as Executive Engineers,
they were not wholly satisfied with ifand they attacked it in three
respects. They urged that respondent Nos. l to 3 had egregiously D
erred in formulating the seniority list ·dated 14th August, 1975 in as
much as (I) respondents Nos. t to 3 had treated vacancies ari.sing
on account of deputation of Executive Engineers to other organisa-
tion or departments as vacancies to be filled up in accordance with
the· quota and so also where an Assistant Engineer or Assistant
Executive Engineer .was, promoted for being sent on deputation as·'
Executive Engineer in another organisation or· department, respon·
dent Nos·. 1 to 3 had treated such promotion as filling up of vacan-
cy subject (o the quota rule:; (2) ·respondent Nos. l to 3 had inclu·
ded, for the purpose of allocation of quota, also those· vacancies
which arose on account of death or retirement of Executive Engine- F
ers who were promoted from the grade of Assistant Engineers in
excess ·of their quota and whose promotions were not regularised
within their quota prior to their death or retirement, as if those
vacancies were· fresh vacancies· governed by the quota rule and (3)
while pushipg down Executive Engineers who were promoted from
G
the grade of Ass.istant Engineers in excess. of their quota and adjus-
ting them within their quota in a subsequent year, respondent Nos.
1 to 3 had treated them as absorbeb not from the date when the
•
vacancy arose in their quota but from .Ist January of that year.
This three-fold grlevaoce .made on behalf of respondent Nos. 4 to
H
190 cannot be said to be wholly unjustified, We find that_ the seco-
nd and third 'heads of grievance are well-founded while the nrst is not.
Our reasops for saving so a~e. as fo1!ows,
890 . SUPREME COURT REPORTS [1984] 3 s.c.R •

A So far as the first head of the grievance. of respondent Nos.
4 to 190 is concerned, their argument was that on a true interpreta·
tion of the judgment of this Court in A. K. Subraman's case, the
quota i:ule was applicable only to permanent vacancies in t!ie posts,.
whether permanent or temporary, included in the sanctioned stren·
gth ·m the cadre of Executive Engineers "except sucjl vac~ncies as
B
were purely of a fortuitors or adventitious character" llnd since the
vacancies arising on account oT depu.tation of Executive Engineers
to other organisations or department could not be regarded as per·
- manent vacancies but were vacancies -of fortuitous or adventitious
character, they were not subject to the .quota rule and could not be
c t.11ke1;1 into account for applicability of the quota rule. This argu-
ment, plausilile though it may seem at first sight, cannot be su.stained.
It is, first of all, necessary to clear the ground by pointing out that
according to the judgment of this cQurt in A.K. Subraman's case,
the qnota rule was to be applied· not with reference to the posts in
the cadre of Executive Engineers but with reference to vacancies. in . •
D such posts·. There might he more than one vacancy in a post in the
course of a year or any other unit o(time aJJ.d it was with reference
to each such vacancy that the quota rule had to be applied. Now a
vacancy may arise in a post on account of death, retirement or
resignation of the incumbent of the post or it may arise on account
E of ·bis dismissal, discharge a reversion from the post or promotion
to a higher post oi: by reason of his deputation to a11other depart-
ment or organisation. Whenever, therefore, a vacancy arises in a
post, whatever he the reason by which the vacancy is caused, it
would have to be filled up by promotion of an Assistant Engineer or
·av Assistant Executive Engineer and the quota. rule would apply so.
F long as the vacancy is· a permanent vacancy, that is to say, in the
words of Palekar J. in the 1st Bishan SarupGupta's case, a .acancy
which is not "for a few days or a few months" or otherwise adventi·
tious". We have in these words of Palekar, J., adopted wholly and
completely in A.K. Subraman's case, a negative definition of what
may be regarded as a permanent vac~ncy for the purpose of. appli·
G cation of the quota rule a~d it clearly shows that a vacancy which is
• of a short duration arising on acc·ount of fortuitous or advel\,litous
circumstances would not be regarded as permanent vacancy and in
such a case, by reason of the very nature of the va<:ancy, there would
be no question of making recruitment to the cadre as to attract the
•.
.H applicability of the quota rule. It is therefore obvious that if a
vacancy arises on account of an incumbent going on leave or for
•.
training or on deputation for a short period, it would be a fortui-
>
P.S. MAHAL v. UNION (Bhagwati. J.) 891

tous Qr adventitious vacancy and tlie quota rule would not be attrac-
A
ted in case of such a vacancy. But wher~ a vacancy arises on account
of the incumbent going on deputation for a reasonably long period
and there is no reasonable likelihood of the person promoted to fill
such vacancy liaving to revert, the vacancy would be subject to the
quota rule, because. it would be a regular vacancy in tlfe post of B
Executive Engineer (\nd the person promoted to fill the vacancy
would be. an officiating Executive .Engineer who would continue as
such without reversion until confirmed and his promotion would, ·
therefore, be by way of recruitment lo the cadre of Executive Engi-
neers. Of course, it should be made clear .that the vaclmcy which .
·. attracts the applicability of the quota rule, is the vacancy in the post
included in the sanctioned strength of tlie cadre of Executive Engi-
''\ neers and not the vacancy in the deputation post. There may be a
vacancy in a deputation post in another department or ori;anisation
and an Executive Engineer holding a post included in the sanctioned
strength of the cadre of Ex,ecutive Engineers may lie .sent to such
deputation post, but the vacancy which would call for the application D
bf the quota rule in such a case would be the vacancy arising in the·
pest of Executive Engineer within the cadre by reason of the incum-
bent of that post going to the deputation post and not the vacancy
in the deputation post which would be filled up by the Executive
Engineer going on deputation" It is,. therefore; apparent that what E
bas tq be considetec! for the applicability of the quota rule is a
vacancy in a post included in the sanctioned ·strength of the cadre
of.Executive Engineers ~nd the sanctioned strength; which. has to be
taken into account, is· not merely the sanctioned strength of . the
cadre of Executive Engineers in the Central Public Works Depart-
ment btit the sanctioned strength of the cadre of Executive Engi- F
neers in the entire Central Engineering Service, Class I. The
sanctioned strength of the cadre of Executive Engineers in the
Centr~l Engineering Service, Class I, may include not only posts of
Executive Engineers in the Central Public Wor'ks Department but
also posts of Executive· Engilleers in other departments and organi-
·sations. · G

Now, so far as the Central
~ .
Engineering- Service, . Class
. I, is
concerned, the deputation of officers in various grades including the·
grade of Executive Engineers is a normal feature. of the 'Service.
The Central Public Works Department is an agency 9f the Centr~J H
.. · Government operating .throghout Country. for construction, main-
tenance and repair of all works .and buildings· financed from Civil
892 SUPREME COURT REPORTS (1984] 3.s.C.tl.

A Works Budget except for certain. departments which bad their
own engineering units or which may get their Civil works executed
through private agencies. The ofilr.ers borne ou the cadres of Chief
Engineers, Superintending Engineers .and Executive Engineers in the ·
Central Engineering Ser;vice, Class· I, are therefore sent on deputation
. to various departments and organisations and some of them are
B
also on deputation with the Government of Bhutan, Delhi Municipal
Corporation, New Delhi Municipal Committee and various. other·
public undertakings. · The normal duration. of such deputation is
one to three years and it may even be extended beyond three years.
The record shows that the ni)mber of Cl1ief Engineers, Superintend·
0 il,lg Enginee;s and Exec11tive. Engineers on deputation to various ·
departments, organisations.· and public sector undertakings has
·always been substantial and by way of illustration, it may be
)
pointed· out that· there were as on !st January, 1975, 90 out of
~pproxin:iately 360 Executiv~ Engineers, 33 out of 80 Superin.tetiding
Engineers and S out of 20 Chief Engineers on deputaiion. On an .
.. D average, about 25 to 40% of the Executive Engineers are on deputa· ·
tion to various organisations, departments and public sector under-,
takings and whenever any such Executive Engineers· are sent .on
deputation and the vacancies in.the posts arising on account of such
deputation are filled up by Assistant Engineers or Assistant Execu-
·E tive Engineers regularly se\ected through Departmental Promotion
Committee,. such promotees have never bad .to .revert, because the
deputations are for a minimum period of one year and in most ·
cases for three years·and they go on rotating. The vacancies arising
in the posts of Executive Engineers orr account of deputation to
F other departments, organisations and public sector undertakings ai:e,
therefore, .Jong term .vacancies and cannot be characterised as
vacancies of fortuitous or adventitious character and, consequently,
according to the judgment in A.K. Subraman:s case, the quota rule
must be held to be applicable with reference to such vacancies. ·~
This has always b.een ·the view taken by the Government ·of Ind.ia,
G aSis clear from ihe letter-dated 19th qctober, .1971 addressed by
the Ministry of Works and Housing, Government of India to the
· Secretary,. Union Public j/;ervice Commission; where, we fihd the
following observation :

"Jn accordance with the recruitment rules the posts
H at' the level of ·Executive Engineers are to be filled by
promotion of Assistant Executive Engineers and Assistant
En~ineers iii the ratio of 2: I, ·. This ratio is ~pplic~ble tq
~. ~. "
P._S. MAHAL v. UNION (Bltagwati, J.) ~93

both permanent and· temp~rary .V~c!incies including the ·
deputation. vacancies". (Emphasis supplied) · ·

.It is significant to.note that the view that deputation vacancies
being long term vacancies should be regarded as . permanent vacan-·
~ ci;s for ·the a~pl~cability of the quota '. rule prevailed with' the .
~.oven1ment of India as . far back as 19th October 1971 long before
B
the present c~ntroversy arose between the parties and even· prior to
the decisions. in Bishan Sarup Gupta's case~ and A.K. Subraman.'s
case~ . · We find that this view was reaffirmed by the _Government of
India in the Office Memorandum dated 30th December. 1976 issued
by the ·Department of Personnel and Administrative Reforqis, Cabinet .
c
Se.cretariat \Yher'e it has been stated as foJlows under the heading
"~etermination of Regular V~c·ancies":- .

". ' . ciu j~· essential that the number of vaca~cies . in
respect ·of which a pan.el. is to be pr~parfd _by a o:P.C. .
- D
. should be estimated a~ accurately a.s possible. For this
purpose the vacan.ties to be taken into account should be
t.be clear vacancies arising in post/ grade/scfrvice due 'to
· death, retirement, resignation, regular long term · promo·
tion, of incumbents of one. post/grade to higher. post/
.-.. 'grade and vacancies arising from creation of additional E
'po~ts ' on a long term ba~is and th~se arising:out of depu·
tation.' As . regards vacancies· arising ·out of deputation
it is clarified that for . the. purpose of drawing up a
. s~lect list. for promotion, vacancies arising· out of deprita-
p
tio~ for periods more than one year should be taken into
account~ due note however. ~eing kept also o.f the number
of the dt:putationists likely to return ·to· the cadr"e and who
, gave to. be · provide'd for. Purely short term .vacancies
• arising. as a resu)t of officers proceeding on lea_ve, on
I . .deputation for a shorter period, training etc., should not
G
. . be taken into account for the purpose o~ -preparation. of
( 1
. a panel":

The same ·stand .has been consiste~tly taken. by th~ Governme~t
l of India.in the various affidavits fiied on
its behalf' in these proceed-
~gg · as ".also in the · miscellaneous proceedjngs arising in A.K.
'!;ubi:amap's case. W_e may usefully reproduce the following para· ff
graphs from the Counter-Affidavit 'filed on behalf of the Government
oflndia in C.M.P.No. 6689 of 197S'in· A..K.. Subraman's case:.

I-
{
894 SUPREME COURT REPORTS [1984] 3 S.C.R.

"8. With reference to paragraph 2(a),J submit that
this Hon 'ble Court, no doubt, stated that all the vacancies
except fortuitous and adventitious ones in the· sanctioned
strength in the cadre have to be taken in.to account. So far
as the deputation vacancies are concerned, the position is
B that the post of.the borrowing a.uthority tow. hich a deputa- "'!' tll
. tion is made is certainly outside the cadre of the Central. . .
Engineering _and Electrical Engineering.._ Service, but the
consequential vacancies which arise because of the deputa· .
tioil are certainly vacancies in the cadre. The deputations
are generally for a periocl of a year and more and the con-
c . sequential vacancies are also long term vacaru::ies, which
cannot be ~aUed for.tuitions or adventitious". "15. With
reference to paragraph 4 (8) (I) (a); I say that the post in the ''
borrowing department is certainly a post outside .the sane- . ,
.tioned strength of the C.P.W.D. However, deputatiol)
of an officer belonging .to the C.P.W.D. to fill such a post
D
causes a vacancy in the C.P.W.D ..•It is this vacancy which
h~s been added and not then post on tlfe borrower's estab.
lishment. This has been done because in our case, the
quota allocation is linked to vacancies and not to post ; of
course, the' vacancies must be in posts in the cadre". . , . •
.E
So also the Union of India reiterated the same view .in . the
Counter Affidavit filed on its be.halfin C.M.P. No. 2663 of 1975 in
A.K. Subraman's case :
· "Vacancies : The quota system, based on w\llch
F the date of commencement of the regular appointment of
eithdr side' had· to be fixed,, in accordance with the direc-
tives of the Hon'ble Court, had been introduced by the-~
Central Engineering Service (and Central Electrical Engin" -
· eering Service) Recruitment·• Rules promulgated on
25 ..8.1949... Hence the vacancies had to be identified right
G from this date.
Vacancies in ihe grade of Executive Engineers had
occurre!l not only due to death, retirement, resignation etc.
• ill the grade· but. also be.cause of promotion (to higher >-- ,
grade) dismissal from this or higher grades, reversion to · .,
H lower grades and degutation to other ·organisations like the
Delhi Development Authority; undertaking, he retains his
lien · on the post in th.e parent department and he has !I
P.S. MAHAt v. UNION (Bhagwati, J.) 895
>-.
right to come back to that post which he can exercise at
any time .and hence the vacancy caused by his deputation
cannot be regarded as a p~rmanent vacancy. liable to be •
filled by regular . recruiment to the cadre of Executive
.Engineers. It was urged that so long as an Executive
Engineer who has "gone on .deputation retain~ his lien on
the post in the parent department, that post canno.t be filled B
by promotion of· another Assistant Engineer or Assistant
Executive' Engineer by way of substantive recruitment to
·.the cadre of Executive Engineers, because two officers
cannot hold a )ien on the same post simultaneously. We
do not ' think this argument is well·founded. There is
here no question of violation of the ba&ic principle of ser-
vice jurisprudence that two officers· cannot simultaneously
have a· lien on the .same post. .It is·signifipant t,o note, and
·this was common ground b;.tween the parties, that the·
vacancy which atrracts the applicability of the quota rule is
not {)nly a vacancy in a permanent post but also a vacancy D
iii a temporary post and obviously no Executive Engineer
c:i.n haye a lien on a temporary post and therefore, exting-
urshment of a lien on a post is not ne"cessary in .order that
there should be .an available vacancy for the. applicability
of quota rule. It is now settled·as a result of the decision E
A.K. Subraman's case that the quota rule is to be applied
at the time of initial other Central or State Government
undertakings or Departments, UN assignments etc. none
of which could be called fortuitous or adventitious be-
cause they were all long term· appointments covering a .
period of one to two years or. more.· F

Calculafions of all such vacancies with reference to
the ca so and .circumstances as called out from the original
papers right from 25.9.1949" was a herculean task and it
was difficult to he sure · that there had been no errors ~r .
G
omissions. Hence, to· be sure, the answering respondents
decided to treat each long term promotion to the grade of
Executive ·Engineer, for whatever reasons, as a vacancy,
oli the assumplion that such a promotion could not have
been made without the existence o~ a vacancy" .. . "

- -< It is thus clear that the vacancies in the posts of Executive
'Engineers arising on accounf·Of deputation of Executiv1; Engineers
896 SUPREME COURT REPORTS [1984] 3 s.c:r •

A to other·. departments~ organisations and public undertakings for a
period of one. or more years were long term vacancies and they
.could not be regarded as· fortutitous or adventitious iu character and
.
·hence
.
they were subject to the quota rule. .

But the answer sought. to be given on behalf of respondents
B Nos. 4 to 19.0 to repel this conclusion was that when an . Executive
Engineers goes on deputation to another department, organisatiQ.11 .;
or .public sector recruitm.ent in an officiating capacity to the cadre<.
of Executive Engineers and not at the time of confirmation. It' is,
therefore, not necessary ~hat the lien of an officer on a ·post of
Executive Engineer must be extinguished before any promotion to
•that post can be made jn accordance with the quota rule, Even
where a confirmed. Executive Engineer is · promoted to the. po~t of
Superintending Engineer but continuous to have his lien on the
post of Executive Engineer, a yacancy wollld undoubtedly arise in
. the post of Executive Engineer by reason of his promotion and such
vacancy would clearly be a permanent vacancy liable to b.e filled
D
according to the quota rule. So also a vacancy attracting ihe
applicability of the 11uota rule. would· arise where an Assistant
Engineer or Assistant Executive Engineer regularly promoted with·
in his lawfui quota dies or retires before confirmation .. The occur-
rence of a vacancy in the.post of Executive Engineer inviting the
E application•of the quota rule has, therefore, nothing to do With the
· extinguishment of lien on the. post; The argument of respondenf+
Nos. 4 to 190 proceeds on the assumption that ·promotion to the'
post of Executive Engineer contemplated under the recruitment
rules can be· made only when there is no liep of any other officer
on that post,· for otherwise there will be two. officers having lien on
. fl the same post. But this assumption is . wholly fallacious, because
promotion ·according to the quota rule envisaged in the R~cruit
ment Rules is, as pointed out in A.Ko Subraman's case, initial
promotion in an offici~ting capacity and has nothing ta do w~h
confirmation. The contention of respondents Nos. 4 to 190 woillc!l.
G have had considerableforce·if promotion to the cadre of Executive
Engineers were dependent' on confirmation and the quota rule
were applicable at the stage of confirmation. But this position
stands compietely negatived by the decision. in A.K. Subraman's.
case. Therefwe, Whenever there is a permanent vacancy, that is·
· t~ say; a long1erm vacancy in a post of Executive Engmeer, it .
II
would have to b~ filled according to the· quota rule irrespective .of ,
the fact whet.her there is any. officer having a lien on that post,. It ,
p .s. MAHAL y. UNION (Blzagwati, J.) .891

is true that a confirmed Executive Engineer who goes on deputa- A
tion may revert to the post .on which he has a lien and so also an
·officiating Executive 'Engineer who goes on deputation may revert
back on termination of his deputation and theoreticaUy, i11 either
case, an Assistant Engineer or Assistant Executive Engineer who
is promoted to fill the vacancy arising on account of deputation 8
may have to revert, but in actual practice and rt'ality,. not a single
Assistant Engineer or Assi.stant Executive Engineer promoted as
Executive Engineer to fill a vacancy arising ~n account of dep~ta

. '
tion, has had to revert, because· deputation is a normal feature in
this service and 20 to 25 per cent of the Execvtive Engin.eers are
continuously on deputation. Even if one · Executive ,Engineer c
com.es back on termination of his deputation, another has to be·
sent in his place and .the deputatio11s thus go on rotating wi,th
the re.suit thai the vacancy in· the post of Execvtive Engineer arising
on account of deputation does not cease and the .Assistant Engineer
or Assistant Executive Engineer promoted as Executive Engineer
to fill tlie vacancy does not ever have to revert and. consequently,
Q
the vacancy filled by him is ·really and truly· a permanent or long
term vacancy which has to be filled according. to the quota ;ule.
In fact, if the quota-rule were l)ot to be ,applied with reference to
such a vacancy, the position would be that w]lenever an Executive
Engineer goes on deputation for a period· .which may extend to E
.anything between three . to five years, the Central Government
would be entitled to ijromote an Assistant Engineer ignoring the
claims of Assistant Executive Engineers· and this would· be. totally
arbitrary in a situation, where, as mentioned above, 20 to 25 per
cent of Executive.Engineers are on deputatiou.
F

But then it was contended on behalf of respondents Nos. 4 to
190 that even if a vaca.ncy arising by reason of an. Executive
Engineer going on deputation were regarded as ·.a permanent
").-•
vacancy attracting the applicability of the quota rule, the position
.would be .different where an Assistant· Engineer or Assistant G
Executive Engineer Was promoted for being. posted as Executive
Engineer in· a deputation post. To such a promotion, it was urged,
the quota ~ule' would not arPlY• because the promotion in' sq.ch a
case would not be to fill a po;t in the sanctioned strength of the
. cadre of Exepµtive Engineers but would be to fill a deputation post
of Executive. Engineer in an:Qther department,. organisation or H
public. sector imdertaking. This argument; plausible though it may
seem at first sight, is in our opinion not sustainable. When a
898 SVPREME COURT REl>ORTS [1984] 3 s.c.R..

department, organisation or public sector undertaking. requests the
C~ntral Public Works Department to make available the services
· of an Executive Engineer on deputation, The Central Public Works
. Department has two options available to it : either to send an
Executive Engineer . who ·is occupying a post in the cadre of
B Executive Engineers, whether confirmed or on officiating basis or to
promote an Assistant Engine~r or .Assistant Executsve Engineer as
Executive Engineer and straightaway send hi111 outside to the depu:
talion post. Now if the former mode of proceeding· could lead to
a vacancy attracting the applicability of the quota, it is difficult to <
•
appreciate how the latter mode of proceeding should not lead .to a •
c similar result. In both cases, the ultimate result would be pro· ·
· motion of an Assistant· Engineer or Assistant Executive Engineer
as Exe~utive Engineer against demand for . deputation. Where an
Assistant Engineer or Assistant Executive Engineer is promoted as
· Execqtiv'e Engineer and immediately sent t6 a deputation· post ii)
another department, organisation or public sector undertaking,
D whaf really happens is that in the eye of law, a pµst is temporary
created in the cadre of Executive Engineers to which the Assistant
Engineer or Assistant Executive Engineer is promoted and then
sent on deputation. Obviously, an Assistant Engineer or. Assistant
·Executive Engineer cannot be promoted . directly to the post 0f
Executive Engineer in another departi;ient, organisation or public
sector undertaking : he can be promoted only to a post of
dxecutive Engineer In Centrai Engineering Service Class I and then
asked to go on deputation .. Of co11rse, an As~istant Engineer ·Or
Assistant Executive Engineer can be directly sent on deputatiort .to
the post of Executive Engineer in another department, organisation
or public sector undertaking without being promoted. as Executive
Engineer in his own department and in such a case there will be
no question of filling a vacancy according to the- quota rule. ·The
·Assistant Engineer or Assistant Executive Engineer who goes . on
deputation as Executive Engineer fo another department, organi· ,,1
sation or public sector undertaking would in such a case continue
G· to remain an Assistant Engineer or Assistant Executive Engineer
in his own department, but would be merely occupying the post. of
Executive Engineer in the other department, organisation or public
sector undertaking as a deputationist and on the termination of his
deputation, he wo<uld revert. as Assistant Enginee.r or Assistant'
H Ex.ecutive Engineer in .his own depa~tment. Such a deputation
cannot be regarded as filling Of a vacancy in the post of Executive
. :Engineer in the Central Engineering Service Class I so as to attract
P.S. MAHAL v. u.NION (Bhagwati, J.) 899.
> the applicability of the quota . rule. But .when· an Assistant A
Engineer or Assistant Executive Engineer is promoted as Execut.ive
Engineer in his own department .and simultaneously With such
promotion, he is sent on deputation to another department, orga·
nisation ·or public .septor undertaking, he goes on such deputation
as Executiv~ Engineer, so that if for any reason his deputation
comes to an end, he reverts to his own department as Executive B
Engineer and not as Assistant .Engineer or Assistant Executive
Engineer. The petitioner filed before us several orders of pro·
.• motion of Assistant Engineers as Executive Engineers for being sent
on deputation to other departments or organisations and these
orders clearly showed that the Assi.stant Engineers in. respect of
whom these orders were passed, were promoted· as Executive c
Engineers and then, simultaneously, under the. same orders, sent
on deputation to other departments or organisations. Obviously,
in cases of this kind, the promotion of the Assistant Engineer or
Assistant Executive Engineer would be to a post in the cadre of
Executive Engineers and it would be subject to the quota rule. The
D.
present contention of respondents Nos. 4 to 19_0 seeking exclusion
of deputation -:acancies.from. the applicability of the quota rule must,
therefore, be rejected, provided bf cour.ge the promotion of the
As.sistant Engineer or Assistant Executive Engineer to .a deputation
vacancy is a regular promotion, that is, after selection by the
Departmental Promotion Committee and. is· not an ad hoc .E
promotion.

Respondent Nos. 4 to 190 are however on firmer ground. in
regard to the .second head of complaint urged by them against the
validity of the seniority list dated 14th August, 1975 It is true that
F.
in preparing the seniority list dated 14th August, 1975 respondent ·
Nos. 1 to 3 included, for the purpose of allocation of quota, ·also
those vacancies which arose on ·account of death or retirement of
Executive Engineers who were promoted from the grade of Assistant
Engh,eers· in eitcess of their quota and.whose· promotions were not
regularised by absorption within their quota prior to their death di' G
as
retirement and treated these vacancies if they were fresh vacan· .
cies · governed by the quota rule. This was clearly an error on the
part of respondent Nos. 1 to 3. It is difficult to see how a vacancy in
the post of Executive Engineer which, according to the quota rule, is
aliocable to an Assistant Executive Engineer but which is filled up H
by irregular appointment of an Assistant Engineer c~n be treated as ·
a fresh vacancy when .
. the Assistant Engineer irregularly promoted

•
900 . SUPREME COURt REPORts (!984] 3 S.C.!L

A dies. or retires fro1n ser.vice before regularisation of. his promotion by
absorption within his .quota. So long as the quota rule is binding and
enforceable, the Assistant E.ngineer·who·is irregularly promoted to·
fill in a vacancy which belongs ti> the qu.ota of Assistant Executive
Engineers is an illegal oc.cupant of the· vacancy. and the vacancy
;continues to be &vacancy belonging to the. quota of Assistant Execu-
B' ti'{e Engineers and liable to be filled by promotion of an Assistant
Execu.tive Engineer. In fact, the promotion of an Assistant Engineer
to the vacancy would be invalid as being· contrary to .the quota rule, •
but in .the 1st Bishart Sarup Gupta case, the Court, in order to .
obviate undue:Jiardship, evolved the theory of temporary invalidity
of the promotion by holding that the promotion would only be irre-
c gular and it could be regularised by absorption within the quota in
· later years. The vacancy though pro tempore filled irregularly by an.
Ass.istant Engineer would continue to belong to- the quota of Assis-
tant · Executive Engineers and it can be filled only by an Assissant
Executive Engineer if the quota rule is to be strictly. observed. The
·.death or retirement of an irregular promotee to the vacancy.cannot
therefore give-Tise to a fresh vacancy : it is the .sanic vacancy which
continues until properly filled by promotion of an Assistant .Execu-
tive Engineer at a subsequent date. If in .such a case the death or
retirement of an irregularly appointed Assistant Engineer were to be
treated as creating a fresh vacancy, if would lead to gross disto~tion.
E Let us take· a hypothetical case where in a particular year· say 1956,
there are 12 vacancies ·in the posts of Executive Engineers out of
which 8. vacancies belong to the quqta of Assfstant ·Executive
Engineer and 4 vacancies belong to the quota of Assistant Engin er.
but only 2 Assistant Executive Engineers .are available with the
result that 6 Assistant .Engineers are irregularly appointed !o fill
•F the remain,ing 6 vaca.ncies allocable·tb 'the ·Assjstant Executive Engi-
neers. Now suppose in the next year 1957 there are no new allocable
vacancies but 6· Assistant . E)lgineers irregularly appointed in the
earlier year 1956 die or retire, If the so·called vacancies arising by
reason of the death or retirement of these 6 irregularly appointed
G. . Assistant E.ngineers were to be treated a's fresh vacancies 4 out of
them would go to Assistant Executive Engineers while 2.would go to ·
Assistant Engineers The result would be that the Assistant Engineers
would get 2 . ~ore · vacancies which they would not have

H
·•

' .
..
P.s. MAHAL v. UNION (Bhagwati, J.) 901

got if all the 8 vacancies allocable to Assistant Exe.cutive
Engineers i~ the year 1956 \Jad been filled by promotion of :Assistant
Executive Engineers and there had been no irregular promotion of 6
Assistant Engineers. Thus the Assistant Engineers would gain two·
more vacancies within their quota.by reason of irregular appointment
of 6 Assista.nt Executive Engineers. That would be allowing Assistant
· Engineers to profit from· irregular :appointments which result can
neverbe countenanced. We must; therefore, accept the contention
of respondent Nos. 4 to 190 under the. second head ofcomplaint. •
•
The third head of complaint urged on behalf of respondent
Nos. 4 to 190 must also likewise be held to be well-founded. Respon-
dent Nos. 4 to 190 are right in contending that while pushing down
Executive Engineers promoted from the grade of Assistant Engineers
in ·excess of their quota and adjusting them within their ·quota in .a
subsequent year, respondent Nos. !. to 3 must treat them as absorbed
from ti)e date ·when a vacancy in t):lat year arises in the quota of
,\ssistant Engineers and not on a notional basis from !st 'January of .
that year. What the decision in A.K. Subraman 's case requires is
that Assistant Engineers promoted as Executive Engineers in excess
of their quota must be pushed down and their promotion must be
regularised by absorption when tl\le within their quota in a subse-
quent year and therefore they can be adjusted only in a vacancy
which arises in that year and is allocable to the quota of Assistant
Engineers. There is nothing in the decision in A.K. Subraman~ case
which warrants that when Assistant Engineers promoted in excess of
their quota are pushed dowh and absoroed within their quota i.n a
subsequent year, their absorption should be reckoned nationally from
1st January of that year. What respondent N'os. 1 to 3 have done is
that all Assistant Engil)eers who had been promoted in excess of
their quota and who having been pushed down were entitled to be·.
abs<)rbed within their quota in a particular year, are treated as ·
absorbed from !st January of that year and placed en hloc senior to
the Assistant Executive Engineers promoted tn that year within their
quota. The.re can be no doubt that respondent Nos. I to 3 were not
entitled to determine seniority on this basis. This Assista~t Engineers
promoted in excess· of their quota and· therefore pushed down· for
· absorption within their quota in a subsequent year could be absorbed
. only in a vacancy arising in that year and allofable to the quota of
Assistant Engineers. ·

' '
I .

SUPREME COURT REPORTS (1984] 3 S C.R.

· Re : Ground B

This ground of challenge i.s clearly qnsustainabJe lmd must be
rejected. It is true that the Rules of 1976 have been brought into
force with effect from 10th December, 1974'.bui in rules 2(iii) and
2 (iv) they lay down a rule of seniority. affecting Assistant Engi-
. neers and Assistant Executive Engineers . promoted as Executive
Engineers reguhrly within their respective quota from and after
• 22nd December, 1959. It iS therefore not possible to say as a matter
of plaih grammatical construction that the Rules. ~f 1976 cannot
affect. tlie ·petitioners and other Assis Lant Engineers promoted
·.regularly within there quota prior to 10th December, 1974. The
question ·1;vould however remain whether Rules 2 (iii) and 2 (iv) of
the Rules of 1976 in s6 far as they lay down a rufo of senior;ty
· different from the .rule of length of continuous offiiciation.for Exe-
cutive Engineers promoted fro:n and after 22nd D~cember, '1959,
are constitutionally valid. This is the question which we shall
proceed to consider under Ground C.

Re : Ground C.

We have already pointed out that though the Rules ofl976
havo been broug1t into force with· effect from. IPth D~cem'Jer 1974,
th•y do notlhve the effect of over-riding the d~cision in A.K.
Subraman's case directing th' Government to amend and revise the
Syniority list. so. as to fix int.er se seniority between. Assistant Engi-
neers and. Assistant Executive Engineers promoted regularly within·
iheir Nspective quota up to 11th Docember 1974, by applying the
rule of seniority based on length of continuous officiation. On this
view, Rules 2(iii) aq,d 2(iv) of the Rules of 1976, in so far as they
provide for seniority being given en bloc to the Assistant Executive
Engineers promoted to the 86 . carried forward posts of Ex,ecutive ·
. Engineers and apply the rotat;onal formula for the pmp~se of deter-
mining seniority amongst .Assistant Engineers and Assistant .Executive
Engineers promoted to the ~ubsequent vacancies, must be held to be
ineffective "qua Assistant Engineers & Assistant .Executive Engineers
promoted up to 11th December, 1974 and so far as these Assistant
Engineers and Assistant Executive Engin•ers are concerned, their
i1lter se seniority must be held to be governed by the length of.conti·
· nuous officiation in the grade o( Executive Engineers. But the ' .
q\lestion wou_ld still survive whether inter se seniority be.tween
Assistant Engineers and Assistant Executive Engineers ·promoted
subsequent to 11th December, 1974 would have to: be determined
in a~cordance with th~ rotational rule of seniority.· set out in Rule
•
•
• •

P. s, MAHAL V· UNION (Bhagwati, J.) ..

2(iv) or this rotational rule of senirioty is unconstitutional and void
as offending Articles 14 and 16 of the Costitution, It may also be
considered in the alternative, on the assumption that Rules 2{iii)
and 2(iv) of the Rules of 1976 govern the determination of inter se
seniority between Assistant Engineers and Assistant Executive
Engineers promoted from and after 22nd December, I 959 despite
the decision in A.-K. Subraman case, whether tnese rules can success-
fully meetthe challenge of Article I 4 and 16 or they would be liable
to be. condemned as constitutionally invalid

We may firill consider the constitutional validity of Rules
2(iii) and 2(iv) of the rules of 1976 in. so far as they affect the inter se
seniority of Assistant Engineers and Assistant Executive Engi,-
neers promoted regul~rly within their respective quota from
and after 22nd December, 1959. Now the position which obtai-
ned on 22nd December 1959 was that there were 86 _Assistant.
Engineers who had been promoted m excess of their quota and
correspondingly there was short-fall of: 86 in pre-motions of
Assistant Executive Engin'eers. W~ are no1 sure whether in the
light of what we have said . above, the excess in promotions of.
Assistant Engineers and the deficiency in promotions of Assistant .
Executive Engineers would stand redu~ed, but that would not make
any difference so far as the present question' is concerned and· we
" ' shall therefore proceed on the• footing that the excess in"promotions
of Assistant Engineers and the short-fall in' promotions of Assistant
Executive Engineer s was 86. The question. 'is whether, consistently
with the constitutional requirement, of Articles 14 and 16, en·
bloc seniority could be given to the Assistant Executive Engine~rs
promoted to fil,l the 86 vacancies allocable to the qu9ta of Assistant
Executive Engineers and remaining unfilled by them up to 22nd
December 1959. These 86 vacancies were under Rule 2(iii) directed
to be carried forward and filled by Assistant Executive Engineers
promoted on or after 22nd December 1959 and the Assistant Exe-
cutive Engineers no promoted were"given seniority en bloc. The
petitioners objected to this movision in Rule 2(iii) for carry forward
of these 86 vacancies and contended thatthere could be no carry
forward of any vacancies which were not filled by Assistant Exe-
cutive Engineer~ and so promotions of Assistant Executive Engineers
could be made to fill such vacancies as from the- date when they
· arose in any particular year. This objection raised on behalf of the
petitfoners is partly sustainable and partly. not. Where the quota
rule is a statutory rule which h,as to be scrupulously observed, the
vacancy which according to the quota rqle is allocable to promotees
•
•

SUPREME COURT REPORTS (198 4] 3 s.c'R ..

from one source cannot be fllled by a promo tee from· another source .
and if, notwithstanding the quota rule, the. vacancy is filled by a
promotee from that other source, such promotion would be irregular
and as pointed out above·, the vacancy would continue to remain a
vacancy, Hable to be filled. by a promotee from the first mentioned
source.· Ii would not be strictly accurate to say that in such a case
· the vacancy is carried forward in the sense in which. that exepression
has been used in T. Devda!an v. Union of India(1). llt was pointed ·
out by this Court in Mervin Cou/inhs v. The Co/lee tor of Customs,
Bomb.ay (2) : " ...... in the case of the carry forward ruk certain
·quota is fixed annually for a certain ~lass of persons and it is carried
. forward from· year to year. This is.very different ,from a case where
· a service· is qivided into.two parts and there are. two sources of
recruitment, one of promotion and the othe.r ·by direct recruitment.
In such a case the whole cadre .of a particular service is ·divided into
two parts· and· there is no question of carrying. anything forward
. from year.to year in (he matter of annual intake". These observa-
tions were quoted with approval by a Bench of Five Judges of this
·Court in G.D. Kelkar v: Chief Collector of Imports and Exports(a) .
. What therefore happens in such a case is that the . vacancy which is
~ro temporc irregularly occupied by a promotee f:om another source
· remains available for being filled by a protnotee from the source to .
·which the vacancy belongs'and in that sense,.it may loosely be said
that the vacancy i.s·carried forward from the year in which it arose
to a subseqifent year in which it is properly filled by a promotee
.from the right source. This is precisely what Ray, C.J. speaking on .
behalf of the Court in V. S. Badami v. State of Mysore('> said at
page 823 of the Report :

" ...... if promotions are made·tcJ vacancies m excess of
the promotional ·quota, the promotions. may no.t ·be total
illegal ·but would be irregular. The promotees cannot claim
any right to hold the promotionafposts unless the vacancies '_..,_--.:
fall within their quofa. Ifpromotees occupy any vacancies. ·
"which are within the qu"1a of direct recruits when direct
recrui.tme:tit takes place the direct .recruit will occupy the
vacancies within their quota. · Promotees who were occupy·:
'
ing the. vacancies· .
wirhin
.
the quota of direct recruits will

(I) AIR [1964) S.C. 179.
(2). [1966] 3 SCR 600.
(3) Jt 967] 2 SCR 29. ·
(4) .[1976] 1 SCR 815 .. •
'.

P. s. MAHAL v. UNION (Bhagwati, J.) 905

either be reverted or they will be absorbed in the vacancies A

. '
.
within their quota in the facts
.
and circumstances of a case."

We must therefore hold. that Respondent Nos. 1 to 3 were
right in proceeding on the basi~ that 86 vacancies allocable· to. the
· quota of Assistant Executive Engineers remained unfilled as on 22nd B
- +. December, 1959 and were available for being filled by Assistant
Executive Engfoeers subsequent.to that date.

But the question arises whether the Assistant Executive Engi-
neers promoted to fill these 86 vacancies which were, to use the
expression in Rule 2(iiil, carried forward from the period prior to c
22nd December 1959 could be deeme.d to have been promoted from

-
the dates whert tnese 86 vacancies arose or they could. be said t9 have
been promoted only from the· date.s of their actual appointment.
Now obviously there ·could not be any appointment of Assistant
Executive· Engineers to these 86 vacancies with retrospective effect
and they must be taken to have been promoted to these 1l6 vacancies D
only from.the dates of their actual appointment and from no earlier
dates. Tf that be. so, it is difficult to appreciate how, consistently
with the mandate of Articles 14 and 16 of the Constitution, an
Assistant Executive Engineer appointed io one of these 86 vacancies
could under
. Rule 2(iii) be. given seniorit:,; as if he were promoted to
that vacancy.on 22nd December 1959, though he might in fact have , E
been promoted years later and on this basis given precedence over
Assistant Engineers promoted regularly within their quota long
prior to theactual.proril.otiol). ofsuch Assistant Executive Engineer.
The consequence of giving effect to Rule. 2(iii) providing en bloc
seniority to the Assistant Executive Engineers promoted to fill these
86 vacancies . would be that a lar-ge number of Assistant Engineers
though promoted regularly within their quota years before the actual
promotion of such Assistant Executive Engineers would become
· junior to ·such Assistant Executive Engineers and their promotional
opportunities would be seriously prejudiced .. In fact, they would
. have to wait until the Assistant ·Executive Engineers promoted to G
these 86 vacancies were promoted further as Superintending Engi-
• neers and then only they would have a chance of being considered
fot further promotion and .even such chance would recede and be
reduced to almost nil.if the rotational rule of seniority were to be
applied irt respect of promotions to subsequent vacancies as set out
in Rule 2(iv}. This would become amply clear ·if we look at the H
chart Annexure I to the writ petition which reproduces the seniority
list d:ited 14th August 1975 along with other particulars relating
906 SUPREME COURT REPORTS • [1984] 3 s.c.R.

A
.
to the Assistant Engineers and Assistant. Eitecutivc Engineers
promoted as Executive Engineers. The .Assistant Execµtive Engi-
neers promoted to these ,86 'carried forward' vacancies figure in the
seniority list dated 14th Augusn975 at Sr. Nos. 100 to 185 and the
particulars given in regard to them 'in the chart Ex. I show that
though the Assistant Executive Engineers at Sr. Nos. 122 to 185
B were promoted (IS Executive Engineers after 1962, they were placed
higher h seniority than petitioner· No. 1 who was as Assistant
Engineer promoted as Executive Engineer and absorbed within his
legitimate . quota in .1962 and so also the Ass.istant Executive
Engineers at Sr. Nos. 173 to 185 though promoted after 1966 were
c given seniqrity above petitioner No. 2 who was an Assistant Engi-
neer promoted as Executive Engineer and absorbed within his
·•
lawful quota in 1966, . Rule 2(iii) · in ·so far as it gives en bloc
seniority to the Assistant Executive Engineers promoted to these
86 vacancies irrespective of the date when they were actually promot-
ed and pushes down in seniority Assistant Engineers· though
..
)

D p'romoted regularly within their quota prior to the- actual promotion
of such Asstt. Executive Engineers, thereby prejudicially affecting
their · promotional opportunities, must therefore be held to be
violative of Articles .14 and 16 of the Constitution.

We find that rule 2(i'1) also suffers from.the same infirmity,
E It provides for rotational rule of seniority based on. the prevailing ,¥

· quota for determining inter se seniority between Assist.ant Engineers
. and Assistant Executive Engineers promoted to the grade of Exe·
· cutive Engineers from and after 22n~ ·December 1959 subject to
en bloc seniority being given to the. Assistant Executive En$ineers
• promoted'- to the 86 'carded forward' vacancies as set out in Rule
·F 2(iii). Obviously, if Rule 2(iii) providing for en bloc seniority to be
given to the Assistant Executive Engineers promoted to the 86
'carried forward' vacancies is unconstitutional and void as held by
us in the .preceding paragraph of this judgment, it mu;t follow that·
the inter se seniority between Assistant Engineers and A;sistant
.. Executive Engi;,eers promoted from.and after 22nd December 1959
G · would be governed wholly by ·the rotational. rtile of seniority set out
· in Rule 2(iv). Now there can be· no doubt that a rule of seniority .
based . on rotation of vacancies according fo the quota prevailing at
the time. would be constitutfonally acceptable· if the qu~ta nik were
strictly implemented, barring minor deviation.s. It is well settled as
Hl a result of. several decision of this Cou{t that there· is nothing
. inherently wrong in working out the quota rule. by adopting .the
••
· rotational · rule of seniority. But, as pointed out by this Court in
P. s. MAHAL v. UN!ON (Bhagwati, J.) 907

N.K. Chauhan v. State of Gujarat (supra) quota is not 'so inter-locked A
with rota that where the former is expressly prescribed, the latter
is impliedly inscribed". The quota rule does not inevitably invoke
the appfoation of the rotational rule of seniority. Even where a
quota is prc~cribed for recruitment from different sources, there may
t
be different modes prescribed for determining seniority of officers on
B
entry into the cadre. In fact, right from 25th August, 1949 when
the quota rule was introduced upto 22nd December, 1959, the
seniority amongst Assistant Engineers and Assistant Executive
Engineers promoted as Executive Engineers was governed not by the
rotational rule by but the length of continuous officiation. It is there-
fore obvious that even where there is a quota rule governing c.
recruitment to a cadre from differ~nt sources it is not necessary that
there should be any particular rule of seniority. The Government
·may in its wisdom adopt an appropriate rule of seniority which may
be base'!! on length of continuous officiation or may follow a roster
arranged in conformity with the quota rule so that seniority may be
determined according to the rotation of vacancies under the quota D
rule. Th·'re may also be any other appropriate rule for determining
seniority in a cadre. Iiideed, a• pointed out by Krishna Iyer, J.
in N.K. Chauhan's case, myriad ways can be conceived "for deter-
mining seniority of officers on .entry into a cadre." But whatever
may be the rule of seniority adopted by the Goverrncnt, it is well
E
settled that it must satisfy the best of equality enshrined in Articles
14 and 16 of the Constitution. The question in each case would
be whether on the facts and circumstances of the case, the rule of
senioritv prescribed by the Government meets the challenge of the
constitutional provision enacted in Articles 14 and 16.
F
We have already pointed out thattlierc is no inherent vice in
the quota rule being operated through the rotational rule ofseniority.
Where the rotational rule of seniority is adopted, the relative senio-
rity of promotees from different sources has to be determined on the
basis of a roster maintained in accordance with the quota rule, so
that when promotion of an officer is regularly made wi.thin his quota, G
he is fitted into the vacancy'reservd for promotees from his sowce
and his seniority is reckoned from the date when such vacancy
arose. But this rotational rule of seniority can work only if the
quota rule is strictly implemented from year to year. Some slight
deviations from the quota rule may not be material but as pointed
ll
out by Palekar, J. in the Bishan Swarup Gupta's case, "if there is
enormous deviltion, other considerations· may arise". If the rota-
908 SUPREME COURT REPORTS (1984] 3 S.C.R.

A tional rule of seniority is to be applied for determining seniority
amongst officers promoted from different sources, the quota rule
must be observed. The application of the rotational rule of senio-
rity when the~e is large deviation from the quota rule in making
promotions is bound to create hardship and injustice and result in
impermissible discrimination. That is why this court pointed out
B in A. K. Subarmans's case that "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 violate Article 14 or Article 16 of the Constitution
,;, ......... It is the unreasonable implementation of the same which
c may, in a given case, attract the frown of the equality clause." The
rotational rule of seniority is inextricably linked up with the quota
rule and if the quota rule is not strictly implemented and there is
large deviation from it regularly from year to year, it would"be
grossly discriminatory and unjust to give effect to the rotational rule
D of seniority. We agree wholly with the observation of D.A. Desai,
J. in A. Janardhan v. Union of India(!) that "the quota rule is linked
with the seniority rule; if the first breaks down or is illegally not
adhered to, giving effect to the second would. be unjust, inequitous
and improper". This was precisely the reason why the Court in the
first Bishan Sarup Gupta's case held that with the collapse of the ..
E quota rule, the rule of seniority set out in Rule l(f) (iii) also went.

Now in the present case the record shows that there has been
enormous deviation from the quota rule in the promotions of ,
Assistant ExecutiveEngineers and such deviation has continued from
year to year over a period of almost 25 years. We have in an ear-
lier part of this judgment adverted to the fact that as on 22nd
December, 1959 there was a short fall in the promotions of Assistant
Executive Engineers to the extent of 86, because the quota rule had
not been properly implemented from 1953 up to 22nd December,
1959 and promotions of Assistant Executive Engineers had not been
effected according to the quota applicable to tl)em. It is interesting
to note that even after 22nd December, 1959, the quota was consis-
tently breached from year to year except for four or :five years and
G there was massive under recruitment of Assistant Executive Engi-
neers, with the result that as on 31st July, J975, the cumulative
shortfall in promotiom of Assistant Executive Engineers was 206
while there was corresponding excess in promotions of Assistant
H
(I) Cl\ No. ~~O of 1980 decided on 26t~ i\wil· IQ/!~
f

P. s. MAlfAL v. UNION (Bhagwati, J.)
;
Engineers to the extent of the same number. Though there was A
such large deficiency in promotions of Assistant Executive Engineers
and corresponding excess in promotions of Asstt. Engineers npto
31st July, 1975, no attempt was made by the Government to set
right this imbalance by stepping up the recruitment of Assistant
Executive Engineers in the subs•quent years so as to restore the B'
balance in the composition of tho cadre of Executive Engineers. On
the co'trary, the under recruitment of Assistant Executive Engineers
continued uninterrupted and by the end of f981 the short-fall in the
promotions of Assistant Executive Engineers increased to 247 with
corresponding excess in the promotions of Assistant Engineers.
This enormous deviation from the quota rule on account of massive c
under recruitment of Assistant Executive Engineers has led to grave
distortion and it is difficult to see how, in this situation, the rota-
tional rule of seniority can be applied consistently with the mandate
of equality enshrined in Articles 14 and 16. The rotational rule, of
seniority must obviously break down when there is such massive
departure from the quota rule regularly from year to year leading D
to continuously increasing deficiency in promotions of Assistant
Executive Engineers and corresponding exces~ in promotions of
Assistant Engineers.

••'· It is obvious that by reason of under-recruitment of Assistant
E
Executive Engineers and over-recruitment of Assistant Engineers in
breach of the quota rule over a period of almost 25 years, most of
the Assistant Engineers having been promoted in excess of their
quota would have to be pushed down to subsequent years when they
could be absorbed within their lawful quota aud many of them would
have to wait for 7 to 12 years on an average before their promotions
F
could be regularised by absorption within their quota. But, despite
regularisation of their promotions after a wait of seven to twelve
, years, they would not be entitled to claim seniority over Assistant
Executive Engineers promoted later in point of time because by
reason of the application of the rotational rule of seniority based on
the roster maintained in accor~ance with the quota rule, the Assistant G
Executive Engineers though promoted subsequently would be entitled
to have their seniority reckoned from the date when the vacancy
.allocable to their quota arose. The Assistant Executive Engineers
though promoted long after the regularisation of the promotion of
the Assistant Engineers would gain seniority over such Assistant
Engineers, be~ause they would be fitted into the vacancies kept H
reserved for them and artificial seniority would be given to them on
910 SUPREME COURT REPORTS (1984] j S.C.R.

A the fictional hypothesis that such vacancies were filled by them at
the time when they arose. The result would be that Assistant Executive
Engineers who were promoted years after the regularisation of the
promotions of Assistant Engineers by absorption within their quota
·which regularisation also would have taken place after they had been

• working as Executive Engineers for a period of about 7 to 12 years
·would become senior to such Assistant Engineers even thOugh at the
time when they were promoted, such Assistant Engineers would have
already been functioning as Executive Er.gineers for a number of
years. The Assistant Executive Engineers promoted later in polnt of
time would shoot up in seniority irrespective of the length of their
c service in the grade of Executive Engineers, by reason of the rota·
tional rule of,seniority based on the roster ma.intained in accordance
with the quota rule. It is obvious that giving such artificial se11iority
to Assi.stant Executive Engineers promoted years after the regular
promotions of Assistant Engineers would completely blight the
promotional opportunities of such Assistant Engineers, because for
D promotion to the higher grade of Superintending Engineers, they
would have to wait for consideration of their case until the Assistant
Executive Engineers who are given artificial seniority oyer them arc
promote~. even though they would have put in a much longer period
of service as Executive Engineers than such Assistant Executive
Engineers. The point we are making would become obvious if we
E consider a few illustrative instances.. Take, for example, the case of ••
petitioner No. I. He was promoted as Executive Engineers on !st
October, 1956 but since his promotion was out side the quota of
Assistant Engineers, he had to be pushed down and he was ultimately
absorbed within his lawful quota in 1962 and though he became a
regular promotee within his quota since 1962, he was placed at serial
F
No. 273 in the seniority list dated 14th August 1975 'While many
Assistant Executive Engineers promoted much later in point of time
than 1962 were placed higher than him in seniority. The result was •
that he never got a ehance for being considered for promotion as
Superintending Engineer and he ultimately retired as Executive
Engineer on 31st January, 1978. The case of petitioner No. 1 may
G
now be contrasted with that of J.P. Singhal, who was recruited as
Assistant Executive Engineer on !st Februarv, 1967 and who was
promoted as Executive Engineer on 14th Janu"y, 1972. Though J.P.
Singhal was not even in service at 'the date when petitioner No. 1
became a regular promotee Executive E:agineer in 1962 and he was
H promoted as Executive Engineer almost ten years after the regular
promotion of petitioner No. 1 by absorption within his quota, JP.
Singhal was placed in seniority at Sr. No. 113 while, as pointed out
P. s. MAHAL )'. UNION (E!wgwuti, J.) .9tl

above, petitioner No. l was placed at Sr. No. 273 in the seniority A
list dated 14th August 1975, with the result that J.P. Singhal came
to be promoted as Superintending Engineer on 15th February 1979
while petitioner No. I did not even have a chance of being consi-
dered for such promotion. Similarly we may also contract tj,J.e case
of pcUioner No. 2 with that of R.A. Armugam. Petitioner No. 2
B
was promoted as Executive Engineer on 7th April, 1959 but since his
ptomotion was not wjtbin the quota of Assistant Engineer, he had to
be pushed down and he was ullimately absorbed within his quota in
1966 and though he was regularly promoted as Executive Engineer
within his quota since 1966, he was placed at serial No. 396 in the
seniority list dated 14th August, 1975 while R.A. Armugam who was c
recruited for the first time as Assistant Executive Engineer on 20th
JanuJry .1971 and promoted as Executive Engineer only on 14th
April, 1975 .was placed higher in soniority at serial No. 260. Thus,
the result- of the application of the rotational rule of seniority was
that R.A. Armugam who was not even in service at the date when
petitioner No. 2 became a r,gularly promoted Executive Engineer D
and who was promoted as Executive Engineer 9 years after petitioner
No. 2, acquired several places above petitioner l'/o. 2 in seniority. It
is not necessary for us to multiply instances where Assistant Execu-
tive Engineers promoted years after the regular promotion of Assis-
tant Engineers have sh.ot up in seniority above such Assistant
Engineers by reason of the applicability of the rotational rulo of E
seniority, with devastating effect on the promotional chances of
.. such Assistant Engineers. Such instances are legion and, in fact,
Q!most every Assistant Engineer has in the process suffered loss of
seniority vis-a-vis Assistant Executive Engineers promoted years
later in point of time. The application of the rotational rule of
seniortty h1S thus resulted in gross discrimination against Asstt. r
Engineers promoted as Executive Engineers, in so far as their
opportunities for promotion to the higher grades are concerned.
Th~ seed of discrimination attracting the frown of the equality clause
h'8 germinated from the fact of reg-liar undue deviation in actual
.. implemenation of the quota rule and obviously the deviation from G
tho quota rula, the greater and more intense 1s the discrimination.
We. have already pointed out the enormity of the deviation from the
deviation from the quota rule in the present case and this deviation
continued from year to year for a period of over 25 years has
consid•crab Y aggravated the discrimination against the Assistant H
Engineers.
912 SUPREME COURT REPORTS (1985] 3 s.c.R.

A Now it is obvious that if Assistant Executive Engineers
recruited at a young age are given artifical seniority several years above
the Assistant Engineers who have already been pushed down 7 to
12 years bdore absorption within their lawful quota, they would get
chances of promotion much earlier than the Assistant Engineers and
once promoted, they being young in age would occupy the posts in
B the higher grades for a much longer period and that to a large extent
block the chances of promotion of Assistant Engineers even when
their turn comes for consideration though at a much belated point of
time. If officers from two sources are promoted according to quota,
then officers from both so,1rces get promotion to posis in the higher
grade on the basis of continuous officiating service in the grade,
c reckoned from the initial date of appointment subject, of course, to
merit and this process goes on continuously due to progressive
retirement of officers in the higher grades, such officers being of an
appropriate higher age group. But if, as in the present case, rela-
tively younger officers drawn from one source are given artificial
seniority over older offiicers promoted from the other source, such
D younger officers would, by the reason of the artificial seniority given
to them progressively occupy most of the posts i~ the higher grades
and because they belong to a younger age group, they would block
the promotional avenues open to the officers drawn from the other
source. This disastrous situation has occurred here because of the
rotational rule of seniority and the result is that, as at the end of
E
1981, out of 101 Superintending Engineers 93 were fro!ll the source of
Assistant Executive Engineers and so far as the higher cadre of Chief
EngiJieers is concerned, all the 19th Chief· Engineers were from the
, .
same source, namely, Assistant Executive Engineers, though in the
grade of Executive Engineers, out of a total of 384 Executive
F Engineers, 103 only were from the source of Assistant Executive
Engineers while 281 were from the source of Assistant Engineers.
These statistics clearly highlight how discriminatory and unjust has
been the application of the rotational rule of seniority to the Assis-
tant Engineers.

G It was c.ontended on behalf of respondent Nos. 4 to \90 that
the under recrnitment of Assistant Executive Engineers during the
period from 1949 to 31st July, 1975 was due to the fact that the
Government took the view, which of course was found erronebus by
the court in A.K. Subraman's case that the quota rule wa; to be
H applied only at the stage of conflrmation and it was because a
differe.nt view was taken in A.K. Subraman's case, namely, that the

\
!>. s. MAHAL v, UNION (Bh;gwatf, J,) 91~

quota, rule was applicable at the stage of initial promotion in an A
officiating capacity to the grade of Executive Engineers and not at
the time of confirmation that this imbalance in seniority took place.
This contention is clearly unfounded but even if it were not so, it is
entirely immaterial, because the constitutional validity of the rota-
tional rule of seniority cannot depend upon what the government
thought to be the correct position in regard to the applicability of B
the quota rule. The question whether the rotational rule of seniority
is constitutionally valid or not has got to be determined in the light
of the interpretation placed on the application of the quota rule by
the decision in A.K. Subraman's case, because that must be accepted
as the correct interpretation and in the context of that interpretation,
the constitutional validity of the rotational rule of seniority must be c
judged. But, as pointed out above, we do not thi.Jk this contention
urged on benalf of respondent Nos. 4 to 190 is correct. We are not
inclined to accept the submission of re;pondent Nos. 4 to 190 that
under-recruttment of Assistant Executive Engineers took place
because the government thought that the quota rule was to be
D
applied only at the stage of confirmation. There is considerable
material placed before the court to show that the government rightly
understood the quota rule to be applicable at the stage of initial
promotion but failed to strictly implement it Paragraph 4 of the
minutes of the meeting held on 14th May, 1968 in the office room of
Shri B.R. Patel, Secretary, Ministry of Works and Supply, clearly E
emphasii:<:s this position by stating that "the intake of Assistant
Executive Engineers should be increased by considering 2/3rd of all
- '
the temporary and deputation posts in the grade of Executive
Engineers and above in the departmeat as permanent ones for the
purpose of working out th« strength at the junior scale." So also we
find a categorical statement to the same effect in the letter dated 19th
October, 1971 addressed by Shri Kartar Singh, Joint Secretary to the
Government of India, Ministry of Works and Housing-a letter to
which we have already referred earlier. The Government also took

...,.
up a positive stand in the affidavit in reply filed by P.B. Kulkarni in
A.K. Subraman's case where it was stated: "I submit that the quota
rule is to be applied as and when vacanqies in the grade of Executive G
Engineers are required to be filled but as already stated earlier, it
ha5 not bee\) possible to apply this quota rule rigidly at the time of
officiating promotions as promotions from the grade of Assistant
Engineers have been in excess of t!J.eir quota." (Emphasis supplied).
It will thus be seen that the government was under no illusion in
regard to the true position relating to the applicability of the quota.
rule. But the government deliberately resorted to the policy of under·
914 SUPREME COURT REPORTS !1984] 3 s.C R.

A recruitment of Assistant· Executive Engineers because, as set out in
the Note regarding Cadre Review of the Central Engineers Service
Class I, prepared and submitted to the Government in June, J978 it
was felt that "it is not po;sible to recruit enough officers in Clas; I
junior scale to fill up lhe quota at Executive Engineers level as it
would worsen the promotion prospects of direct recruits to <ilass I
B and· make the service totally unattractive". The Note regarding
Cadre Review also pointed out:·

"A. perusal of form VI would indicate that in the next
ft ve years the annual • recruitment would be of the order of
80 and in the subsequent five years it would be of the order
c of 40. According to the existing Rules, the vacancies in the
grade of Executive Engineers are to be filled up by the
promotion of Asstt. Executive Engineers (Group A) and
Asstt. Engineers (GroupB) in the ratio of 1 : I Sine<: the
annual intake of Asstt. Executive Engin~ers is to be co-
D related with the vacaacies that would be available in the
grade of Executive Engineers, the .,innual intake of Asstt.
Executive Engineers (CES GROUP A) would be 40 in the
next ftve years arid 20 in the subsequ~nt five y'earn. It has
been already explained in para 2 : 3 : 6 that when the annual
recruitment was less than I 0, the direct recruits were able
E to reach the Junior Administrative grade in 10 to 11 years.
When this was subsequently increased to 20 per annum the
period taken for promotion has increased to 14 years which
is likely to increase further if the annual intake is main·
tained at the same level. For this reason, it is not considered
desirable to appoint direct recruits to C.E.S. Group A in
F large number. In the Indian Railways Service of Engineers,
the recruitment to the Junior Scale in Group 'A' is related
to the number of posts at the level of Chief Engineer and
above and the annual intake has generally been less than
the number of posts of Chief Engineers. In the CPWD we
have only 12 posts of Chief Engineers and it is, therefore,
G recommended that the annual intake to Junior Scale Class
I through UPSC compotitive Examination should ~e rest-
ricted to 10 only." · ·

There can be no doubt that the failure to recruit Assitant Exe·
cutivc Engineers in sufficient numbers, so that when vacancies in the
H grade of Executive Engineers allocable to the quota of Asst!. Exe·
cutivc Engineers arose from year to year, there would be Asst!. r
P. s. MAHAL v. UNION (Bhagwati, J.) .915
,,
Executive Engineers available for promotion to fill such vacan• A
cies, was responsible for the gross distortion which took place in the
cadre of Executive Engineers over the years.

We must in the circumstances hold that Rules 2(iii) and 2(iv)
of the Rules of 1976 are violative of Articles 14 and 16 of the
B
Constitution and they must be declared to be unconstitutional and
void. It that be so, then obviously the seniority between Assistant
Engineers and Assistant Executive Engineers regularly promoted
within their respective quota mmt be determined by the length of
continuous officiation in service in the grade of Executive Engineers,
subject to the qualification that in case of Assistant Engineers the c
length of continuous officiation shall b~ reckoned from the date
when their promotion is regularised by absorption within their lawful
quota.

We would therefore allow the writ petition and quash and set
aside the Memorandum and the seniority list dated 14th August D
1975 and the Rules of 1976. We would direct the government to
prepare a new seniority list of ExecJtive Engineers in the light of the
observations contained in this judgment. The Govern!llcnt will
prepare such seniority list within a period of two months from
today. When th~ seniority in the grade of Executive Engineers is E
rearranged in accordance with the directions given in the judgment,
the cases of Assistant Engineers who would have been due for
• considaration for promotion as Superintending Engineers and there-
after as Chief Engineers on the basis of their revised seniority, will
be considered by a duly constituted Departmental Promotion Com-
F
n.ittee as on the dates on which they would have been due for such
consideration if the correct seniority had been given to them, and if
on the basis of their performance and record as on those dates they
would have been selected for promotion, they must be given promo-
tion with retrospective effect from such dates and if necessary,
supernumerary posts in the grades of Superintending Engineers and G
Chief Engineers shall be created for the purpose of accommodating
them and all arrears of salary and allowances shall he paid to them
on the basis of such retr.>spective promotions. We may make it clear
that those Assistant Executive Engineers who have been promoted
as Superintending Engineers or Chief Engineers upto the date of this
judgment shall not, on account of revised seniority in the grade of H
Executive Engineers, be disturbed from the positions which they are
occupying at present but their seniority in sachJ!igher grades will
916 StlPRllME COURT REPORTS . (1984] 3 s c.l.

A have to be ~earranged on the basis of the . directions given in the.
judgment.

We hope and trust that this judgment will put a quictous to .
the Jong ranging controversy between Assistant Engineers and Assis-
tant Executive Engineers. The writ petition will stand disposed of in
B
the above terms with no order as to costs.

S.R. Petitions allowed.

•