Full Judgement
P.S.Mahal & Ors Vs. Union of India & Ors [1984] INSC 112 (23 May 1984)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
CITATION: 1984 AIR 1291 1984 SCR (3) 847 1984 SCC (4) 545 1984 SCALE (1)949
CITATOR INFO :
E 1984 SC1527 (12) D 1985 SC 781 (13) F 1985 SC1019 (19) R 1985 SC1558 (28) RF 1985 SC1605 (16) R 1986 SC 638 (12,24) F 1987 SC 424 (24) E 1987 SC2359 (16) D 1990 SC1607 (26) D 1991 SC 958 (13) RF 1991 SC1202 (31)
ACT:
Executive Engineers, Central Engineering and Central Electrical Engineering Service (Group A) (Regulation of Seniority) Rules, 1976, brought into force with retrospective effect from 10th December, 1974-Rules 2(ii) and 2(iv) -Constitutional validity of-Whether the rules violate the provisions of Articles 14 and 16(i) of the Constitution.
Inter-se Seniority of Executive Engineers promoted regularly within their respective quota from and after 22nd December 1959 but before 11th December, 1974 from the posts of Assistant Executive Engineers governed by the Central Engineering Service (Class-I) Recruitment Rules, 1954 and Assistant Engineers governed by Central Engineering Service (Class-II) Recruitment Rules 1954, as refixed by the Seniority List dated August 14, 1975-Whether irregular and contrary to the guidelines indicated in the decisions reported as A.K. Subraman v. Union of India [1975] 2 S.C.R. 979=Quota rule in Rule 4 of the Central Engineering Service (Class-I) Rules, 1954 when applicable.
HEADNOTE:
In the Central Public Works Department of the Ministry of Works 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 five years of their service in their grade on the basis of seniority-cum fitness and also from Assistant Engineers (Class-II) who have rendered more than eight years of service in their grade on the basis of merit, the selection being made through a departmental promotion committee presided over by a member of the Union Public Service Commission, since for the latter the post of Executive Engineer is a selection post. Promotion to the grade of Executive Engineers, for the first time, on 25th August, 1949, a quota in the ratio of 75% to 25% was prescribed by the Central Government. This was continued right upto the Recruitment Rules 1954 were enacted for these two categories. From September 7,1955, this quota was altered with retrospective effect to 66-2/3% and 33-1/3% and it was again altered with effect from April 1, 1972 to 50 :
50 for a period of seven years.
However, at the time of promotions not only the quota was not adhered to with the result that Assistant Engineers came to be promoted 848 with 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, but all of them were treated as officiating Executive Engineers.
There was no statutory rules governing inter-se seniority of Executive Engineers promoted from these two grades. They were therefore, governed by the Memorandum issued by the Home Ministry on June 22nd, 1949 which laid down the general principles of seniority applicable to all departments of the government. The Memorandum provided that "in respect of persons employed in any particular grade, seniority should, as a general rule, be determined on the basis of length of service in that grade as well as service in an equivalent grade irrespective whether the latter was under Central or Provincial Government in India or Pakistan." The length of continuous officiation in the grade was thus taken as the yardstick for the purpose of determining seniority in all departments of the government and a fortiorari, in the grade of Executive Engineers. On the basis of this yardstick, Assistant Engineers promoted as officiating Executive Engineers within their quota would clearly be senior to Assistant Executive Engineers promoted later as officiating Executive Engineers.
Respondents 1 to 3 issued a seniority list on 1st July, 1971 in which Executive Engineers promoted from the grade of 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 promoted much later from the grade of Assistant Executive Engineers. Respondents 1 to 3, in making this seniority list proceeded on the basis that the quota rule specified in the last part of sub-rule (2) of Rule 4 of the Recruitment Rules necessarily implied 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 Executive Engineers, unless two reserved for promotion of Assistant Executive Engineers were filled up by confirmation of such promotees, the third one for confirmation of an Assistant Engineer promoted as Executive Engineer could not be filled.
Consequently, all Assistant Engineers were treated as ad-hoc appointees without any claim to seniority until such time as they were confirmed as Executive Engineers within their quota. The impact of this decision of Respondents Nos. 1 to 3 was disastrous for a large 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 the position continues to exist till date. Therefore the aggrieved Assistant Engineers filed a writ petition before the Delhi High Court. The Full Bench of that Court dismissed, the said petitions. In the appeals, by a common judgment reported A. K. Subraman and Ors. v. Union of India and Ors. [1975] 2 S.C.R. 979; the Supreme Court accepted the 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 Executive Engineers and not at the stage of confirmation and that it did not necessarily imply the rotational system and since the general principles 849 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. The Court allowed the appeal after summarising its conclusions in the form of following six propositions namely:
(1) 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 the 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 within their quota;
(2) Their seniority will not be reckoned from the date of their future confirmation in Class-I. The above principle is, however, subject to one reservation, namely, if an Assistant Engineer, before his confirmation in Class II were appointed to officiate in Class I in the grade of Executive Engineer, although within his quota, his seniority will count only from the date of his confirmation in Class II as permanent Assistant Engineer notwithstanding his earlier officiating appointment as Executive Engineer;
(3) The quota rule will be enforced at the time of initial recruitment, in an officiating capacity to the grade of Executive Engineer and not at the time of confirmation;
(4) The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary including in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and the operation of the quota rule will depend upon the availability or non availability of Assistant Executive Engineers for appointment as Executive Engineers. The non- availability of Assistant Executive Engineers for recruitment to the grade of Executive Engineer will not postpone the regular recruitment of the Assistant Executive Engineers within their quota.
(5) Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I officers to further promotions. Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota.
(6) If Assistant 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." and directed the respondents Nos. 1 to 3 to amend and revise the seniority list of 1st July 1971 in the light of the directions given in the judgment and to give effect to the revised seniority list so prepared.
850 Respondents Nos. 1 to 3, thereafter, issued a seniority list on 14th August, 1975 accompanied by a memorandum bearing the same date in which it was stated that the seniority list of Executive Engineers had been raised in the light of the judgment of the Supreme Court dated 11th December, 1974 in accordance with the principle set out in the memorandum. For the purpose of determining the seniority in the grade of Executive Engineers from and after 22nd December, 1959 respondents Nos. 1 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 thereafter were shown en bloc senior to the officers appointed after 25th August, 1949 and so far as the period between 25th August 1949 and 21st December, 1959 was concerned the inter se seniority of persons promoted during that period from the grades of Assistant Engineers and Assistant Executive Engineers within their respective quotas was determined in accordance with the length of their regular continuous service as Executive Engineers, subject to the qualification that in case of Assistant Engineers who were promoted as Executive Engineers the length of their regular continuous service as Executive Engineers for the purpose of determining seniority would be computed only from the date when they were confirmed as Assistant Engineer.
But with effect from 22nd December 1959, a departure was made by respondent Nos. 1 to 3 from the principle of continuous officiation and "carry forward principle was applied by providing that 86 posts earmarked for promotion of Assistant Executive Engineers to the grade of Executive Engineers in accordance with their quota during the period prior to 22nd December, 1959 which had remained unfilled owing to non-availability of Assistant Executive Engineers upto 22nd December 1959 should be carried forward and 86 Assistant Executive Engineers promoted after 22nd December, 1959 should be adjusted against these posts and they should be assigned seniority en bloc immediately below the last Executive Engineer promoted regularly prior to 22nd December, 1959. The result was that the Assistant Engineers who had been promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1959 became junior to the Assistant Executive Engineers promoted against these 86 carried forward posts, even though they might have been promoted as Executive Engineers long prior to the promotion of such Assistant Executive Engineers. The Assistant Executive Engineers promoted and adjusted against these 86 carried forward posts, were given seniority above the Assistant Engineers promoted regularly within their quota after 22nd December, 1959 irrespective as to when such Assistant Executive Engineers were actually promoted. These posts were adjusted 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 allocated from time to 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 rotation formula based on the quota prevailing at the relevant time. But since it had not been possible to fill all the posts allocated to the Assistant Executive Engineers' quota and some posts remained unfilled, they were shown as vacant 851 in the seniority list prepared according to the roster based on the rotational formula so that as and when Assistant Executive Engineers might 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 the revised seniority list was that most of the Assistant Engineers promoted as Executive Engineers regularly within their quota subsequent to 22nd December, 1959 lost a considerable number of places in seniority and were placed in a much worse situation than what they were in under the seniority list dated 1st July, 1971 which was quashed at their instance, in writ petitions.
A contempt application against respondents Nos. 1 to 3 was therefore moved 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 Engineering and Central Electrical Engineering Service (Group A) (Regulation of Seniority) Rules 1976.
These rules were deemed to have come into force with effect from 10th December, 1974, that is one day before the delivery of Judgment by this Court and they substantially enacted in statutory form the same principles which were set out in the memorandum that accompanied the seniority list dated 14th August, 1975 and on which that seniority list was based.
The petitioners, thereupon, filed the present writ petitions contending that the Rules of 1976 were not applicable to the petitioners and other Assistant Engineers promoted as Executive Engineers regularly within their quota prior to 10th December 1974 and if these Rules were held to be applicable, they were unconstitutional and void. The petitioners challenged the validity of the seniority list dated 14th August, 1975 and the Rules of 1976 on the following grounds, namely; (i) that it was the case of the petitioners and other Executive Engineers promoted from the grade of Assistant Engineers regularly within their quota from and after 22nd December 1959 but before 11th December, 1954 is covered by the decision of this Court in A. K. Subraman's case; (ii) that they are entitled to claim seniority, on the basis of length of continuous officiating, over Assistant Executive Engineers promoted as Executive Engineers later in point of time; (iii) that the Assistant Executive Engineers promoted and adjusted against 86 carried forward posts cannot be given seniority en bloc over Assistant Engineers promoted as Executive Engineers earlier;
(iv) that the rotational formula cannot be applied retrospectively so as to deprive Assistant Engineers promoted as Executive Engineers of their seniority on the basis of length of continuous officiation in the grade of Executive Engineers; (v) that the Rules of 1976 are, to that extent, unconstitutional and void as being outside the power of the Central Government; (vi) that since the Rules of 1976 have been brought into force with effect from 10th December, 1974, they cannot affect the petitioners and other Assistant Engineers 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 to be governed by the principle of length of continued officiation in the grade of Executive Engineers; and (vii) that if the Rules of 1976 are applicable for determining inter se seniority of Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers within their respective quotas from and after 22nd December, 1959, they are unconstitutional and 852 void as offending Articles 14 and 16 of the Constitution, since the seniority rules enunciated in the Rules of 1976 being closely linked with the quota rule continued massive departure from the quota rule over a long period of time must result in the breakdown of the seniority rules and to apply the seniority rules in such a situation would create gross inequality of opportunity of employment violative of Articles 14 and 16.
Allowing the petitions, the Court,
HELD: 1.1 Rule 2(iii) of the Central Engineering and Central Electrical Engineering Service Rules, 1976, in so far as it gives en bloc seniority to the Assistant Executive Engineers promoted to the eighty six vacancies carried forward from the period prior to 22-12-1959 irrespective of the date when they were actually promoted and pushed down in seniority Assistant Engineers though promoted regularly within their quota prior to the actual promotion of such Assistant Executive Engineers, merely prejudicially affecting their promotional opportunities is violative of Articles 14 and 16 of the Constitution. [906B-D]
1.2 Rule 2(iv) of the said Rules also suffers from the same infirmity as it provides for rotational rule of seniority based on the prevailing quota for determining inter-se seniority between Assistant Engineers and Assistant Executive Engineers promoted to the grade of Executive Engineers from and after 2nd December, 1959, subject to an bloc seniority being given to the Assistant Executive Engineers promoted to the eighty six "carried forward" vacancies as set out in Rule 2(iii). Obviously, if Rule 2(iii) providing for en bloc seniority to be given to the Assistant Executive Engineers promoted to the eighty six "carried forward" vacancies is unconstitutional and void, Rule 2(iv) is also unconstitutional and void, when there has been enormous deviation from the quota rule in the promotions of Assistant Executive Engineers and such deviation has continued from year to year over a period of almost twenty five years. [906D-H]
1.3 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 grossly be indiscriminatory and unjust to give effect to the rotational rule of seniority. 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 to continuously increasing deficiency in promotions of Assistant 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 Collector of Customs, Bombay [1966] 3 SCR 600; G.D. Kelkar v. Chief Collector of Imports and Exports [1967] 2 SCR 29; V.S. Badami v. State of Mysore [1976] 1 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] 1 SCR 104 referred to.
2.1 Notwithstanding Rules 2(iii) and 2(iv) of the Rules of 1976, the inter se seniority between Assistant Engineers and Assistant Executive Engineers promoted regularly within their respective quota upto 11th December, 1974 must be determined on the basis of length of continuous officiation in the grade of Executive Engineers, subject of course to the length of continuous officiation in the case of Assistant Engineers being computed from the date of their confirmation as Assistant Engineers in view of decision of the Supreme Court in Subraman's case. In this view carrying forward of eighty six posts of Executive Engineers allocable to Assistant Executive Engineers and giving up seniority en bloc to the Assistant Executive Engineers promoted to the 'carry forward posts' by applying the rotational formula for the purpose of determining seniority amongst Assistant Engineers and Assistant Executive Engineers promoted to the subsequent vacancies is ineffective quota Assistant Engineers and Assistant Executive Engineers promoted upto 11th December 1974 and so far as these Assistant Engineers and Assistant Executive Engineers are concerned, their it seniority must be held to be governed by the length of continuous officiation in the grade of Executive Engineers.
[888H, 889A-B]
2.2 On a plain reading of the decision in Subraman's case, it is obvious 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 Engineers promoted from the grade of Assistant Engineers and Assistant Executive Engineers up to 2nd December, 1959 but was on its plain terms applicable to all Executive Engineers promoted from the grade of Assistant Engineers and Assistant Executive Engineers within their respective quota right up to 11th December, 1974 being the date of the decision of the Court. But the revised seniority list dated 14th August, 1975 issued by the Government of India was plainly in defiance of this direction given by the Court. [872A-C, F-G]
2.3 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 11, 1974 must be held to be governed by the rule of length of continuous officiation and the Government of India has been directed by a writ of the Court to amend and revise the seniority, the effect of this decision cannot 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 of 1976 with retrospective effect from 10th December 1974. It is significant to note that the Explanatory 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 Subramn's case but on the contrary affirmed that the principles of seniority set out in those rules were laid down on the basis of the said decision. Since the Rules of 1976 purports merely to carry out the direction given in the said decision they cannot have the effect of overriding that decision and absolving the Govt. of India and the Government of India, must, therefore, amend and revise the seniority list of 1st July, 1971 by applying the rule of seniority based on length of continuous officiation for determining 854 inter seniority of Executive Engineers promoted from the grades of Assistant Engineers and Assistant Executive Engineers up to 11th December, 1974. The relative position of the Executive Engineers in regard to their inter se seniority having been crystalised in the decision in Subramn's case and a writ having been issued by he Court directing the inter se seniority of the Executive Engineers to be fixed on the basis of length of continuous officiation the Executive Engineers promoted from the grade of Assistant Engineers were entitled to enforce the writ for determining the inter se seniority with the Executive Engineers in accordance with the rule of length of continuous officiation. The right of the Executive Engineers promoted from the grade of Assistant Engineers under the said decision could not be taken away by anything contained in the Rules of 1976. The decision in Subaraman's case continued to subsist and the Government of India was bound to a determine inter se seniority amongst Executive Engineers in accordance with the direction contained in that decision. If by reason of retrospective 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 Rule 2(iii) and 2(iv) so far as the Executive Engineers promoted from the grade of Assistant Engineers and Assistant Executive Engineers Executive Engineers upto 11th December, 1974 are concerned. [873E H, 874B-F,877A-B] Further, the rule of seniority set out in paragraphs 5(ii) and 6 of the Memorandum of the Ministry of Home Affairs dated 22.12.1959 has no application to the instant case. [878E] M.M. Pathak v. Union of India and Ors. [1978] 3 SCR 346 followed.
Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [1970] 1 SCR 388 distinguished.
Patel Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad [1964] 2 SCR 608 referred to.
3.1 If a vacancy arises on account of an incumbent going on leave or for training on deputation for a short period, it would be a fortuitous or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy. But where 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 having to revert, the vacancy would be subject to the quota rule, because it would be a regular vacancy in the post of Executive Engineers and the person promoted to fill the vacancy would be an officiating Executive Engineer would continue as such without reversion until confirmed and his promotion would, therefore, be by way of recruitment to the cadre of Executive Engineers. Of course, the vacancy which attracts the applicability of the quota rule, is the vacancy in the post included in the sanctioned strength of the cadre of Executive Engineers and not the vacancy in the deputation post. There may be a vacancy in a deputation post in another department or organisation and an Executive Engineer holding a post included in the sanctioned strength of the cadre of Executive Engineers may be sent to such deputation post, but the 855 vacancy which would call for the application of the quota rule in such a case would be the vacancy arising in the post of Executive Engineer within the cadre by reason of the incumbent 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. Therefore, what has to be considered for the applicability of the quota rule is a vacancy in a post included in the sanctioned strength of the cadre of Executive Engineers and the sanctioned strength which has to be taken into account, is not merely the sanctioned strength of the cadre of Executive Engineers in the entire Central Engineering Service, Class I. The sanctioned strength of the cadre of Executive Engineers in the Central Engineering Service, Class I, may include not only posts of Executive Engineers in the Central Public Works Department but also posts of Executive Engineers in other departments and organisations. [890H, 891A-G]
3.2 Therefore, it cannot be said that promotion to the post of Executive Engineer contemplated under the Rules can be made only where there is no lien of any officer on that post because promotion according to the quota rule is initial promotion in officiating capacity and not concerned with confirmation. It is true that a confirmed Executive Engineer who goes on deputation 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 theoretically, in either case, an Assistant Engineer or Assistant Executive Engineer who is promoted to fill the vacancy arising on account of deputation may have to revert, but in actual practice and reality, not a single Assistant Engineer or Assistant Executive Engineer who is promoted to fill the vacancy arising on account of deputation, has had to revert, because deputation is a normal feature in this service and 20 to 25 per cent of the Executive Engineers are continuously on deputation. Even, if one Executive Engineer comes back on termination of his deputation, another has to be sent in his place and deputations thus go on rotating with the result that the vacancy in the post of Executive Engineer arising on account of deputation does not cease and the Assistant Engineer or Assistant Executive Engineer promoted as Executive Engineer to fill the vacancy does not ever have to revert and consequently the vacancy filled by him is really and truly a permanent 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 would be that whenever an Executive Engineer goes on deputation for a period which may extend anything between three to five years, the Central Government would be entitled to promote an Assistant Engineer ignoring the claims of Assistant Executive Engineers and this would totally be arbitrary in a situation where 20 to 25 per cent of Executive Engineers are on deputation. For this purpose the vacancies in the posts of Executive Engineers arising on account of deputation of Executive Engineers 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 fortutious or adventitious in character and hence they were subject to the quota rule.
[891G-H, 895H, 896A, 897-F, 856
3.3 However, the vacancy pro tempore filled irregularly by an Assistant Engineers would continue to belong to the quota of Assistant Executive Engineers and it can be filled only by the Assistant 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 rise to a fresh vacancy: it is the same vacancy which continues until properly filled by promotion of an Assistant Executive Engineer at a subsequent date. If in such a case the death or retirement of an irregular appointed Assistant Engineer were to be treated as creating a fresh vacancy, it would lead to gross distortion. Similarly while pushing down Executive Engineers promoted from the grade of Assistant Engineers in excess of their quota in a subsequent year, the Government must treat them as absorbed from the date when a vacancy in that year arises in the quota of Assistant Engineers and not on a national basis from 1st January of that year.
[900C-G, 901 C-D]
ORIGINAL JURISDICTION Writ Petition Nos. 157-162 of 1976 (Under article 32 of the Constitution of India) M.C. Bhandare, A.K. Ganguli, D.P. Mukherjee and Miss C.K. Suchirata for the Petitioners.
M.M. Abdul Khader, Girish Chandra and Miss A.
Subhashini for Respondent.
M.K. Ramamurthi, J. Romamurthi and Mrs. R. Vaigai for Respondent.
The Judgment of the Court was delivered by BHAGWATI, J. This writ 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 the 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 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 groups of Executive Engineers will accept the decision ungrudgingly without any rancour or resentment and wholeheartedly engage themselves in the nation building task entrusted to them.
857 There is in the Central Public Works Department of Ministry of Works and Housing, Government of India a Service known as Central Engineering Service (Class I). This Service comprises various grades; the highest grade is that of Engineer-in-Chief and then in descending hierarchical order are the grades of Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Executive Engineer. The Central Government has made rules of recruitment to this Service known as the Central Engineering Service (Class I) Recruitment Rules 1954 (hereinafter referred to as 'Recruitment Rules') and they are issued under SRO 1841 dated 21st May 1954. Part I of the Recruitment Rules contains the definition and Clause (c) of Rule 2 occurring in this Part defines "Service" as Central Engineering Service Class I. Rules 3, 4 and 5 contained in Part II of the 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 the following methods:- (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.
4. (1) All appointments to the service or to posts borne upon the cadre of the Service shall be made by Government.
(2) Subject to the provisions of the rule 3 Government shall determine the method or methods of requirement (Sic) (recruitment ?) to be employed for the purpose of filling any particular vacancies in the Service or such vacancies therein as may be required to be filed during any particular period and the number of candidates to be recruited by each method.
Provided that all recruitment by competitive examination (vide Part III of the rules) shall be to the grade of Assistant Executive Engineer, Class I only.
Seventy-five per cent of the vacancies in the grade of Executive Engineer, Class I, shall be filled by promotion of Assistant Executive Engineers, Class I, the rest of the vacancies being filled by promotion and/or by transfer in accordance with Parts IV and V of the Rules respectively.
5. Appointment to the Service made otherwise than by promotion will be subject to orders issued from time to time by the Ministry of Home Affairs regarding special representation in the Services for specific sections of the people".
Assistant Executive Engineers belong to the lowest grade in this 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 for two years and they are confirmed in the grade of Assistant Executive Engineers after successful completion of the period of probation.
There is also another Service in the Central Public Works Department called Central Engineering Service Class II. This Service consists only of the grade of Assistant Engineers. The rules of recruitment to the grade of Assistant Engineers are to be found in the Central Engineering Service Class II Recruitment Rules. There are two modes of recruitment laid down in these Rules; one is by direct recruitment through the same competitive examination which is held for selection of Assistant Executive Engineers, the candidates lower down in rank than those selected for the grade of Assistant Executive Engineers being selected for the grade of Assistant Engineers and the other is by process of selection from a subordinate Service called Class III Service. Assistant Engineers belong to Class II service, unlike Assistant Executive Engineers who belong to Class II service but the posts which they hold are interchangeable, each of them being in charge of a sub- division and the nature of work, responsibilities, powers and duties discharged by them all is 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 powers and duties are concerned.
The next higher grade above that of Assistant Executive Engineers is that of Executive Engineers Recruitment to the grade 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 eligible for promotion to 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 859 for promotion on the basis of merit; the selection being made 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 it was provided that the vacancies in the grade of Executive Engineers shall be filled by promotion from the grades of Assistant Executive Engineers and 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 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 Recruitment Rules. This quota was altered with retrospective effect from 7th September 1955 from 75 and 25 per cent to 66 2/3 and 33 1/3 per cent and it was again altered with effect from 1st April 1972 to 50:50 for a period of seven years.
It appears that whenever Assistant Executive Engineers and Assistant Engineers were promoted to the grade of Executive Engineers, they were first appointed on officiating basis. The quota was however, for reasons which we shall presently 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 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 Home Ministry on 22nd June 1949 which laid down general principles of seniority applicable to all departments. This Memorandum provided that "in respect of persons employed in any particular grade, seniority should, as a general rule, be determined on the basis of length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under Central or Provincial Government in India or Pakistan." The length of continuous officiation in the grade was thus taken as the yardstick for the purpose of determining seniority in all departments of the government and a fortiorari, in the grade of Executive Engineers. On the basis of this yardstick, Assistant Engineers promoted as officiating 860 Executive Engineers within their quota would clearly be senior to Assistant Executive Engineers promoted later as officiating Executive Engineers.
However, Respondent No. 1 to 3 issued a seniority list on 1st July 1971 in which Executive Engineers promoted from the grade of 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 promoted much later from the grade of Assistant Engineers. Respondent No. 1 to 3 in making this seniority list proceeded on the basis that the quota rule specified in the last part of sub-rule (2) of Rule 4 of the Recruitment Rules necessarily implied 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 Executive Engineers, unless two reserved for promotion of Assistant Executive Engineers were filled up by confirmation of such promotees, the third one for confirmation of Assistant Engineer promoted as Executive Engineer could not be filled.
Consequently, all Assistant Engineers were treated as ad-hoc appointees 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. 1 to 3 was disastrous for a large 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 today, according to the petitioners, there are hundreds of officiating Executive Engineers promoted from the grade of Assistant Engineers who are working in the Central Public Works Department for decades without confirmation and according to the principle adopted in preparing the seniority list of 1st July 1971, they would have no claim to seniority in the grade of Executive Engineers and would become junior even to recent promotees from the grade of Assistant Executive Engineers.
The seniority list dated 1st 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 for the publication of the final seniority list dated 1st July 1971 preferred writ petitions in the Delhi High Court challenging the validity of the provisional seniority lists. There writ petitions were 861 referred to a Full Bench since they involved questions of some importance and the Full Bench by a common judgment dated 20th May 1971 rejected the contentions of the petitioners 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 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 1st 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 these writ petitions thereupon preferred Civil Appeal Nos. 1745, 1746 & 1747 of 1974 after obtaining special leave to appeal against the judgment 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 1st July 1971 on the ground that the seniority 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 officiation in the grade of Executive Engineers.
These three civil appeals and writ petition were heard together and decided by a common judgment of this Court dated 11th December 1974 vide: A.K. Subraman & 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 Executive Engineers and not at the stage of confirmation and that it did not necessarily imply the rotational system and since the 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 Executive Engineers who were respondents in the writ petition as also in the civil appeal tried to meet the contention of the petitioner by relying on a subsequent Memorandum dated 22th December 1959 issued by the Ministry of Home Affairs, Government of India but the learned Solicitor General appearing on behalf of the Union of India conceded that the said Memorandum had no application to the case and was irrelevant and this Court also accepted the same view. This 862 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 cadre, barring only such vacancies as were purely of a fortuitous or adventitious nature and the quota rule applied at the stage when Assistant Engineers and Assistant Executive 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 quota rule must be applied in relation to the vacancies occuring in any particular year. This Court also held, relying on the observations in Bishan Swaroop Gupta v. Union of India & Ors. (hereinafter referred to as the 1st Bishan Swaroop Gupta case) that the ratio of promotions in the grade of Executive Engineers in any particular year was not dependent upon whether any persons from one class or the other were promoted or not and this was made clear 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 be filled by promotion of an Assistant Engineer. If in such a case, having regard to 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 Executive Engineers, the appointment of Assistant Engineers to fill in such two vacancies would be irregular because that would be outside their quota but in that event, observed the Court, they would have to be pushed down to later years when their appointment could be regularised 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 propositions at the close of the judgment:
(1) 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 within their quota.
863 (2) Their seniority will not be reckoned from the date of their future confirmation in Class 1.
The above principle is, however, subject to one reservation, namely, if an Assistant Engineer before his confirmation in Class ll were appointed to officiate in Class I in the grade of Executive Engineer, although within his quota, his seniority will count only from the date of his confirmation in Class II as permanent Assistant Engineer not with standing his earlier officiating appointment as Executive Engineer.
(3) The quota rule will be enforced at the time of initial recruitment, in an officiating capacity, to the grade of Executive Engineer and not at the time of confirmation.
(4) The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary including in the sanctioned 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 Engineers for recruitment to the grade of Executive Engineer will not postpone the regular recruitment of the Assistant Executive Engineers within their quota.
(5) Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I officers to further promotions. Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota.
(6) If Assistant 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.
This Court accordingly allowed the writ petition and the civil appeals and directed respondent Nos. 1 to 3 to amend and revise the 864 seniority list of 1st 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 1974 respondents Nos. I to 3 delayed implementation of those directions for a period of over three months and hence the petitioners in writ petition No.489 of 1972 as also petitioner No. 3 in the present writ petition filed CMP No. 2563/75 on 18th April 1975 for taking action against respondent Nos. 1 to 3 for contempt of court.
Respondent No. 1 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 Court on 21st July 1975 on the ground that the principles laid down in the judgment dated 11th December 1974 were clear and the Court 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 11th December 1974. The Court kept the application for contempt pending and adjourned it to 1st September 1975. Respondent Nos. 1 to 3 thereafter issued a revised seniority list on 14th August 1975. This seniority list was accompanied by a Memorandum also dated 14th August 1975 in which it was stated that the seniority list of Executive Engineers had been revised in the light of the judgment of this Court dated 11th December 1974 in accordance with the principles set out in that 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. 1 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 appointed after 25th August 1949 and so far as the period between 25th August 1949 and 21st December 1959 was concerned, the inter se seniority of persons promoted during that period from the grades of Assistant Engineers and Assistant Executive Engineers within their respective quotas was 865 determined in accordance with the length of their regular continuous service as Executive Engineers, subject to the qualification that in case of Assistant Engineers who were 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 computed only from the date when they were confirmed as Assistant Engineers. So far there was no dispute raised on behalf of the petitioners and it was conceded that the principle for determining seniority applied by respondent Nos. I to 3 for the period up to 21st December 1959 was valid. The petitioners also conceded that those Assistant Engineers who had been promoted in excess of their quota were rightly pushed down and adjusted within their quota in subsequent years. Thus, for example, Shri A.K. Subraman, the first petitioner in writ petition No. 489 of 1972, though promoted in officiating capacity as Executive Engineer on 27th December 1956 with the approval of the Departmental Promotion Committee was pushed down, since his promotion was not within the quota of Assistant Engineers at the time when he was promoted and his promotion was regularised on absorption within his lawful quota in a subsequent year. But with effect from 22nd December 1959 a departure was made by respondent Nos. 1 to 3 from the principle of continuous officiation and carry forward principle was applied by providing that 86 posts earmarked for promotion of Assistant Executive Engineers to the grade of Executive Engineers in accordance with their quota during the period prior to 22nd December 1959 which had remained unfilled owing to non- availability of Assistant Executive Engineers upto 22nd December 1959 should be carried forward and 86 Assistant Executive Engineers promoted after 22nd December 1959 should be adjusted against these posts and they should be assigned seniority en bloc immediately below the last Executive Engineer promoted regularly prior to 22nd December 1959. The result was that the Assistant Engineers who had been promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1959 became junior to the Assistant Executive Engineers promoted against these 86 carried forward posts, even though they might have been promoted as Executive Engineers long prior to the promotion of such Assistant Executive Engineers. The Assistant Executive Engineers promoted and adjusted against these 86 carried forward posts were given seniority above the Assistant Engineers promoted regularly within their quota after 22nd December, 1959, irrespective as to when such Assistant Executive Engineers were actually promoted. After the Assistant Executive Engineers promoted 866 as Executive Engineers were adjusted against these 86 carried forward posts and given seniority en bloc over all Assistant Engineers promoted regularly within their quota subsequent to 22nd December 1959, the rotational 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 respective quotas of Assistant Executive Engineers and Assistant Engineers for promotion as Executive Engineers were allocated from time to 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 prevailing at the relevant time. But since it had not been possible to fill all the posts allocated to the Assistant Executive Engineers' quota and some posts remained unfilled, they were shown as vacant in the seniority list prepared according to the roster based on the rotational formula, so that as and when Assistant Executive Engineers might 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 seniority list was that most of the Assistant Engineers promoted as Executive Engineers regularly within their quota subsequent to 22nd December 1959 lost a considerable number of places in seniority and were placed in much worse situation than what they were in under the seniority list dated 1st July 1971 which was quashed at their instance in writ petition no. 489 of 1972. The petitioners in writ petition no. 489 of 1972 therefore filed an additional affidavit on 26th August 1975 pointing out that the seniority list dated 14th August 1975, though purporting to be in compliance with the directions given by this court, was totally in defiance of such directions and respondent Nos. l to 3 should therefore be committed for contempt of this court. It seems that some of the Assistant Executive 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 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 to decide the entire controversy between the parties on the basis of these 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 867 Engineering and Central Electrical Engineering Service (Group 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 before the delivery of judgment by this Court in writ petition no. 489 of 1972 and they substantially enacted in statutory form the same principles which were set out in the Memorandum 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, 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 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 Assistant Executive Engineer-those who were considered unfit for promotion being omitted and they will rank immediately below the last Executive Engineer, promoted prior to (22.12.1959).
(iv) After all the vacancies in the grade of Executive Engineer, which were earmarked for promotion from the grade of Assistant Executive Engineer in accordance with the quotas prescribed for them during the period from 25th August, 1949 to 21st December, 1959, but could not be filled, are filled by Assistant Executive Engineers promoted on or after 22.12.1959 and such officers assigned seniority as indicated in (iii) above, all subsequent vacancies in the grade of Executive Engineer will be filled by rotation of vacancies between the Assistant. Executive Engineers and Assistant Engineers on the basis of quotas prescribed for them for promotion as Executive Engineer from time to time. The inter se seniority of Assistant Executive Engineers and Assistant Engineers so promoted to the grade of Executive Engineer, 868 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 Engineer and Assistant Engineer is 66-2/3% and 33- 1/3% respectively (that is, up to 31.3.1972) 1st Position ) ) Asstt. Executive Engineer 2nd Position ) 3rd Position Assistant Engineer 4th Position ) ) Asstt. Executive Engineer 5th Position ) 6th Position Assistant Engineer and so on.
(b) When the reservation of the vacancies in the grade of Executive Engineer for Assistant Executive Engineers, and Assistant Engineers, is 50% each (i.e. from 1.4.1972 and for a period of 7 years.) 1st Position Asstt. Executive Engineers 2nd Position Asstt. Engineer 3rd Position Asstt. Executive Engineer 4th Position Asstt. 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 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, prayed in the writ petition that the seniority list dated 14th August 1975 should be quashed and a new seniority list should be prepared on the basis of length of continuous officiation in the grade of Executive Engineers so that Assistant Engineers promoted as executive Engineers regularly within their quota should have seniority over Assistant Executive Engineers promoted later in point of time. The writ petition was admitted and rule nisi was issued upon it and after affidavits in reply were filed on behalf of the respondents, the writ 869 petition taken up for hearing by this Court. In the course of the hearing, 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.
The petitioners 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 and other Executive Engineers promoted from the grade of Assistant Engineers regularly within their quota from and after 22nd December 1959 but before 11th December 1974 is covered by the decision of this Court in Writ Petition No. 489 of 1972 and Civil Appeal Nos. 1745 to 1747 of 1974 and hence they are entitled to claim seniority, on the basis of length of continuous officiation, over Assistant Executive Engineers promoted as Executive Engineers later in point of time and the Assistant Executive Engineers promoted and adjusted against 86 carried forward posts cannot be given seniority en bloc over Assistant Engineers promoted as Executive Engineers earlier nor can the rotational formula be applied retrospectively so as to deprive Assistant Engineers promoted Executive Engineers of their seniority on the basis of length of continuous officiation in the grade of Executive Engineers and the Rules of 1976 are, to that extent, unconstitutional and void as being outside the power of the Centra
