JUDGEMENT
Sharma, J. -
(1.)The perpetual rivalry for seniority in service between the direct recruit and the promotees has once more engaged the attention of this Court for several days. The dispute which was brought to Court by S. B. Patwardhan in 1972 by a writ petition in the Bombay High Court and which was supposed to have been finally settled by the judgment of this Court reported in (1977) 3 SCR 775 has been kept alive by some direct recruits till this date. The events relevant for the case are spread over a long period and the issues joined by the parties have been described in the earlier judgments as involving ticklish and complicated questions of unrivalled complexity with no earlier case comparable. The position as now stands is that the field of controversy on legal questions has been considerably narrowed down by the earlier decisions of this Court, but the relevant facts and the issues to be settled have multiplied by further events and subsequent rules framed under the Proviso to Art. 309 of the Constitution.
(2.)For appreciating the controversy which has to be resolved, a brief survey of several sets of rules is necessary. The parties are Engineers in the employment of the State of Maharashtra excepting the petitioners in W.P. Nos. 3947-48 of 1983 who are in Gujarat service. Avoiding the details, the position may be briefly stated by dividing the entire period into 4 sub-periods and mentioning the scope of such of the provisions of the rules which have direct bearing, on the questions involved in the present cases. By a resolution of the year 1937 of the Government of Bombay, two new Provincial Engineering Services described as the Bombay Engineering Service Class I consisting of posts of Chief Engineer,Superintending Engineers, Executive Engineers and Assistant Engineers Class I, and the Bombay Engineering Service Class II, having officers designated as Deputy Engineers, were created. All the posts were permanent. In 1939, Rules were made for regulating the methods of recruitment to the said Services which directed the recruitment to be made either by nomination from amongst the students of the College of Engineering, Pune or by promotion of officers holding inferior posts. The next Rules to which the parties in the present cases have made reference were those made by the resolution dated 2l-1l- 1941 for determination of the seniority of the direct recruits and the promoted officers, containing only two rules out of which R. 1 admittedly is not relevant for the present purpose. R. 2 said that in case of officers promoted to substantive vacancies, the seniority would be determined with reference to the date of their promotion to the substantive vacancies. In 1960, detailed rules for recruitment to Class I and Class II Services were framed by a Government resolution dated 29-4-1960. Learned counsel for the parties have referred to these Rules as the 1960 Rules and have made elaborate arguments with reference to some of the provisions. In place of nomination from the successful students of College of Engineering, Pune as direct recruits, these Rules prescribed for a competitive examination to be held by the Public Service Commission, and introduced a quota system by fixing 4 ratio of appointments of direct recruits and promotees. The Rules also made reference to promotion, as Executive Engineers on officiating basis, and Temporary Deputy Engineers and officiating Deputy Engineers. By R. 8 the posts of Deputy Engineers were reorganised, and by sub-rule (iii) it was provided that the direct recruits in any year shall in a bunch be placed senior to promotees confirmed during that year. A review of these Rules was later undertaken by the Government and ultimately in partial supersession thereof a fresh set of rules, described by the learned counsel in the present cases as the 1970 Rules, were adopted by another Government resolution. In the meantime, however, a serious dispute in regard to the interpretation of one of the provisions of the 1960 Rules arose which was settled by this Court in the case of P. Y. Joshi v. state of Maharashtra, (1970) 2 SCR 615. The judgment in this case has been the subject matter of considerable discussion during the hearing of present cases. By R. 5 of the 1970 Rules, Class I and Class II Services were redefined and R. 12(a) declared that the cadre of Deputy Engineers would consist of all the direct recruits, the confirmed Deputy Engineers and the other officers who were officiating as Deputy Engineers on 30-4-1960.
(3.)During - the period 1960-1970 adequate number of direct recruits were not available, and a large number of promotees, therefore, had to be appointed to officiate as Deputy Engineers on continuous basis. These appointments were made after following the procedure applicable to regular promotions, including consultation with the Public Service Commission. By R. 12(b) the strength of the permanent Deputy Engineers was fixed at the total number of (a) the Deputy Engineers confirmed up to the date of commencement of the Rules, (b) direct recruits to the posts of Deputy Engineers appointed till the date of commencement of the Rules, and (c) the Deputy Engineers officiating on 30-4-1960; and it was provided that no fresh appointments in future would be made to this cadre and the vacancies arising would be transferred to the officers holding subordinate posts detailed in the sub-rule in proportions indicated. The learned counsel for the parties have referred to this cadre as the 'frozen cadre'. The question of seniority was dealt with in several rules, out of which R. 33 is important. It said that the seniority list in each cadre in Class I and Class II shall be prepared in two parts - one for the confirmed officers and other for those who were not confirmed; and that the confirmed officers would be treated as senior to the unconfirmed officers. Since the direct recruits were all appointed against the permanent posts, they were reckoned to be senior to the officiating Deputy Engineers irrespective of the period for which they had been working continuously on the Deputy Engineer's posts. These Rules were amended in 1972, but there was no departure from the main scheme and the principle governing seniority.