ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS.

B The Judgment of the Court was delivered by

SHARMA, J. The perpetual rivalry for seniority in service bet- ween the direct recruits 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. Patwardban 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 com.parable. 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 Article 309 of the Constitution.

2Copy pinpoint2. For appreciating the controversy which has to be resolved, a brief survey of several sets of rules is necessary. The parties are Enginec::.rs 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 b.e briefly stated by dividing the entire period into 4 sub-periods and mentioning the scope F 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 consist- ing of posts of Chief Engineer, Superintending Engineers, Executive Engineers and Assistant Engineers Class I, and the Bombay Engineer- G ing 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 pro- motion of officers holding inferior posts. The next Rules to which the H parties in the present cases have made reference were those made by

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the resolution dated 21.11.1941 for determination of the seniority of A the direct recruits and the promoted officers, containing only two rules out of which r. 1 admittedly is not relevant for the present purpose. Rule 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 aud Class II Services were framed by a Govern- B meut 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 nomi' nation 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 a ratio of appointments of direct recruits and promo- c _, tees. 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 re-organised, 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 underta- ken 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 resolu- /· tion. 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 and others v. The State of Maharashtra and Others, [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) peclared that the cadre of Deputy Engineers would consist of all the direct recruits, the con- F firmed Deputy Engineers and the other officers who were officiating as Deputy Engineers on 30.4.1960.

3Copy pinpoint3. During the period 1960-70 adequate number of direct recruits were noi available, and a large number of promotees, therefore, had to be appointed to officiate as Deputy Engineers on continuous basis. G These appointments were made after following the procedure appli- cable 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 H

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date of coffimencement of.the Rules, and (c) the Deputy Engineers A officiating on 30.4.1960; and it was provided that no fresh appoint- ments 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 B of semority was dealt with in several rules, out of which r. 33 is important. ll 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 C irrespective of the period for which they had been working continu- ously on the Deputy Engineer's posts. These Rules were amended in 1972, but there was no departure from the main scheme and the princi- ple governing seniority.

4Copy pinpoint4. In pursuance of the 1970 Rules seniority lists were prepared leading to the filmg of several cases which were ultimately disposed of by this Court in S.B. Patwardhan and others v. State of Maharashtra and others, [1977] 3 SCR 775. Patwardhan, the appellant in that case, was promoted temporarily as Deputy Engineer in 1959 and was confirmed after the coming in force of the 1970 Rules. The respon- E dents No. 2 and 3 who were directly appointed as Deputy Engineers later were, in view of the Rules, shown as senior to Patwardhan. Patwardhan challenged the validity of r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules as being violative of articles 14 and 16 of the Constitution. The judgment in the case is treated as a landmark in the service jurisprudence and has covered extensive grounds dealing with F several important aspects relevant in the case. The learned counsel for the parties have in the course of their arguments read and re-read the judgment and made elaborate comments on its interpretation and effect, which we will discuss later. In the result, Patwardhan succeeded and r. 8(iii) of the 1960 Rules and r. 33 of the 1970 Rules were struck down. G

5Copy pinpoint5. In view of the judgment in Patwardhan's case, it became necessary to prepare fresh seniority lists, and since the re-organised States of Bombay and Gujarat were formed on 1.11.1958 under the provisions of the State Re-organisation Act, 1956, it was considered expedient to make rules for preparing seniority lists of Deputy H Engineers in respect of the period 1.11.1956 to 30.4.1960, that is, the

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date immediately after coming into force of the 1960 Rules. Rules were framed under Article 309 of the Constitution read withs. 81(6) of the Bombay Re-organisation Act, 1960, and were called the Re- organised Bombay State Overseers and Deputy Engineers Seniority Lists Rules, 1978, and have been referred to before us as the 1978 Rules. The seniority list of the Deputy Engineers as on 1.11.1956 which had been prepared earlier was declared by these Rules as valid and final. This was consistent with the decision in Patwardhan's case. The further seniority lists were directed to be prepared for the years 1957, 1958, 1959 and 1960 in accordance with the judgment in Patwardhan's case wherein the seniority of the promotee Deputy Engineers was made dependant on the continuous officiation subject to certain other conditions. c

6Copy pinpoint6. Since the preparation of the seniority lists and reversion of the direct recruits whose promotion was illegal, in view of the decision in Patwardhan's case, were being delayed, one Bagayat Patil, a promotee Deputy Engineer officiating as Executive Engineer, filed a writ appli- cation being W.P. No. 3483 of 1980 in the High Court for implementa- D tion of the judgment, inter alia, on the ground that r. 6(iii) of the 1960 Rules relating to Class I being similar to the struck down r. 8(iii) was also illegal. Another writ application being W.P. No. 672 of 1981 was

r filed by the direct recruits challenging the validity of the 1978 Rules mainly on the ground that the Rules omitted to fix proportionate quota for the direct recruits and the promotees. The two cases were disposed E of by a common judgment upholding the validity of the 1978 Rules, striking down r. 6(iii) of the 1960 Rules, and issuing appropriate direc- tions for reversion of the illegally promoted direct recruits as also for preparation of seniority lists in accordance with the judgment in Patwardhan's case. Kulkarni, one of the direct recruits, in represen- -~ '' tative capacity, challenged· the judgment before this Court in S.L.P. F ~ No. 8064 of 1981 which was dismissed on 29.10.1981. On the same date S.L.P. No. 9161 of 1981, filed by one Samtani was also rejected. A special leave petition by the State Government was also dismissed later. One of the direct rectuits J.H. Bhatia, who was admittedly represented by the petitioner in S.L.P. No. 8064 of 1981, filed an application under Article 32 of the Constitution before this Court on G 1.2.1982, that is, after the dismissal of S.L.P. No. 8064 of 1981, which has been registered as W.P. No. 1327 of 1982 and is being disposed of by the present judgment.

7Copy pinpoint7. In 1981 further rules called Re-organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules, H

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1981, described by the partiC9S as the 1981 Rules, were framed laying down the rule of determination of seniority of the Assistant Engineers and the Executive Engineers for the period 1.11. 1956 to 30.4.1960. 1 With respect to the preparation of the seniority list of the Executive Engineers, r. 3(3)(a) read with Explanation tor. 3(4) fixed quota with retrospective effect between the direct recruits and the promotees, and these rules were successfully challenged in the High Court in W .P. No. 362 of 1982. The judgment in the case striking down the above ~· rules has not been directly questioned in this Court.

8Copy pinpoint8. The main Rules which are the subject matter of the present cases were framed in 1982 under Article 309 of the Constitution laying ~ down the principle for fixing the seniority for the period dated c 1.5.1960 to· 20.12.1970, and are called the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982, hereinafter referred 't- to as the 1982 Rules. The Preamble states that they were framed in view of the decision of the Supreme Court in S.B. Patwardhan v. State D of Maharashtra and of Bombay High Court in W.P. No. 3483 of 1980. On their face, they are consistent with the aforesaid judgments, but by including two rules therein-Rules 4 and 9, deleted later-fixing rigid quota with retrospective effect, attempt was made to neutralise the decision and rob the promotees the benefit of their continuous officia- .~ tion. Rule 9 (omitting the Explanation which is not relevant for the E present purpose) read as follows:

"9. Allocation of vacancies in cadre of Deputy Engineers for direct recruits and promotees.-The number of vacan- cies in the cadre of Deputy Engineers in every year during the specified period and in the fractional year shall be deemed to be equal to the .number of vacancies actually ·-+- F filled in that year or, as the case may be, fractional year, f and the first three-fourths of such vacancies in each year or in the fractional year shall be deemed to be allocated for persons recruited directly as Deputy Engineers and the subsequent remaining vacancies in that year or in the frac- G tional year shall be deemed to be allocated for filling by promotions from amongst Overseers who may be eligible for such promotions in· accordance with rules or orders made by Government from time to time during the speci- •• fied period."

H Rule 4, .dealing with the promotion of Assistant Engineers and Deputy

ENGG. OFFICERS ASSCN. v. STATE OF MAHARASHTRA (S1U\RMA. J.] 913 \_

Engineers in vacancies in the cadre of Executive Engineers was in similar language. Section 2(h) defined "fortuitously appointed" in the following terms:

"fortuitously appointed" means appointed in any vacancy which, according to rule 4 or 9, is not allocated for the class of officers to which the person appointed in that vacancy belongs;" ·

"'fhese rules were challenged in Writ Petitions No. 955 and 956 of 1983, filed respectively by promotee Deputy Engineers Dafle and Kanitkar, ).. and by promoti:P Executive Engineers Lele and Panse (hereinafter I mentioned as IJafle-Lele case) before the Bombay High Court and were struck down as illegal. The High Court further ordered the State C to carry out the directions given in Bagayat Patil's case (W.P. No. 3483 of 1980). None of the Engineers came to this Court against this judg- ment, except the State Government in S.L.P. Nos. 166°1415 of 1983 which also have been heard by us. However, the prayer for stay was rejected. The result is that the seniority has to be reckoned on the basis of continuous officiation. By an amendment in 1984 the rr. 4 and 9 were formally deleted.

9Copy pinpoint9. For the purpose of fixing the seniority of Executive Engineers f' and Assistant Engineers for the period commencing on 21.12.1970, separate rules were framed under Article 309 of the Constitution and are called the -Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class I and the Maharashtra Service of Engineers Class II (Regulation of Seniority and Preparation and Revision of Seniority Lists) Rules, 1983 and will be referred to hereafter as the 1983 Rules. The validity of these Rules has been .··~ challenged in W.P. No. 1169 of 1986 filed under Article 32 in this F Court.

10Copy pinpoint10. As stated earlier, J.H. Bhatia filed Writ Petition No. 1327 of 1982 in person and obtained an ex parte rule. Another application under article 32 of the Constitution being W .P. No. 5187 of 1983 was filed by Srikant Bharat Sohoni, a direct recruit to Class II, who, G besides challenging the 1978 Rules, has also attacked the validity of the 1982 Rules, although he did not file an appeal11gainst the judgment of the High Court on this point. According to theleamed counsel for the promotee respondents he was not concerned ,Yith the 1978 Rules at all but he mentioned the same in his application for the sole purpose of obtaining a rule on the ground of admission o.f Bhatia's writ petition. H

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Encouraged by these two cases, several other writ petitions were also filed and have been heard along with the Civil Appeals.

11Copy pinpoint11. Although the claim of the promotees to reckon the seniority according to the continuous officiation was accepted by this Court in Patwardhan's case in 1977, the State Government continued denying them the fruits of the litigation. The High Court on a complaint made by Bagayat Patil, took note of the delay and issued directions for implementation of the judgment. Still nothing was done till 1984 and an application for starting proceedings in contempt was made before the High Court. In the meantime a fresh writ petition being W .P. No. 660 of 1984 was filed by the direct recruits before the Aurangabad Bench of the Bombay High Court and stay was obtained. Thereafter a c number of similar applications were filed one after another, either before the Nagpur Bench or the Aurangabad Bench of the Bombay High Court. When the promotees pointed out before this Court the game of the direct recruits, a direction was issued for hearing of all the cases at Bombay. Accordingly all the 15 writ applications were trans- D ferred and heard together at Bombay. The High Court rejected the case of the direct recruits and dismissed the writ petitions. The peti- tioners in 9 of them have challenged the judgment in Civil Appeals No. 194-202 of 1986.

12Copy pinpoint12. The main argument on behalf of the direct recruits has been E addressed by Mr. V .M. Tarkunde, who represents the appellants in the Civil Appeals and the writ petitioners in W.P. No. 1169 of 1986. The learned advocates in some of the other writ cases and two of the writ petitioners in person made supplementary arguments. It has strenuously been contended that the 1978 Rules, 1982 Rules, 1983 Rules and the 1984 Rules are invalid and must be struck down. The F judgment in Dafle-Lele case has also been challenged. The cases were earlier heard for sometime by a Division Bench when the Bench refer- red the matter to be dealt with by a larger Bench for examining the correctness of the decision in Patwardhan's case.

13Copy pinpoint13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan's case was unsound and fit to be over-ruled, but no attempt was made to sub- stantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agree- ment with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account

ENGG. OFF!CERSASSCN. v. STATE OF MAHARASHTRA [SHARMA,J.] 915

for determining his seniority; and seniority cannot be detrmined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbant nor on the availability of sub- stantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appoint- ment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the aappointment is made after considering the claims of all eligible candidates and the appointee continues in the c post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the positioin if the initial appointment itself is made in accor- dance with the rules applicable to substantive appointments as in. the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable cases and has been further elaborated by this Court in several Judgments including those in I Baleshwar Dass v. State of U.P. and others, [1981] 1 SCR 449, and Delhi Water Supply and Sewage Disposal Committee and others v. R. K. Kashyap and others, [ 1989] Supp. 1 SCC 194, with which we are in agreement. In Narender Chadha and others v. Union of India and others, [1986] 1SCR211, the officers were promoted although without following the procedure prescribed under the rules, but they continu- ously worked for long periods of nearly 15-20 years on the posts with- ,. out being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view -\ would be arbitrary and violative of Articles 14 and 16. There is consi- F

derable force in this view also. We, therefore,'c<mfirm the principle of counting towards seniority the period of continuous officiation follow- ing an appointment made in accordance with the rules prescribed for regular substantive appointments in the service. G

14Copy pinpoint14. Mr. Tarkunde in the course of his argument made it clear that he was not questioning the ratio in Patwardhan's case but was challenging the judgment therein as erroneous on the ground that the posts of temporary Deputy Engineers held by the promotees were not in the cadre of the Deputy Engineers, which included only permanent posts, and this position was not correctly appreciated there. The argu- H

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men! is that since the permanent posts held by the direct recruits and the temporary posts which the promotees were allowed to officiate did not form a single cadre, there could not arise any question of inter se _, seniority amongst them. The finding to the contrary in Patwardhan's case is said to have been incorrectly arrived at, mainly due to the failure on the part of the State Government to place all the relevant materials before the Court. The stand of the appellants is that having regard to all the facts and circumstances leading to the present litiga- 'r' ti on, the direct recruits cannot be held to be bound either by a rule of res judicata or otherwise and they are free to challenge the Patwar- dhan's decision as incorrect. It is claimed that if the relevant position is correctly appreciated, there is no escape but to hold that the 1960 J Rules excepting r. 8(iii) and the 1970 Rules except r. 33, were perfectly c legal and the declaration about their invalidity was erroneous. The learned counsel contended that since the fresh Rules, which are now 'f impugned, were framed as a result of the said erroneous judgment, they have to be struck down. The observations in the judgment in P. Y. Joshi's case were characterised as obiter dicta which cannot be held to D be binding o~ this Court at a subsequent stage, and the question whether the direct recruits and promotees were in the same cadre or held posts in two separate and distinct cadres must be answered in accordance with the decision in State of Gujarat v. C.G .. Desai and others, [1974] 2 SCR 255 in favour of the appellants. Developing his _._ argument Mr. Tarkunde said that since the 1960 Rules and the 1970 E Rules were perfectly valid, they clothed the direct recruits with right of seniority over the promotees which could not be retrospectively taken away in view oUbeir fundamental rights under articles 14 and 16 of the Constitution. He further urged that the quota rule applicable to the Service under the 1960 Rules was binding on all concerned and the High Court bas in the Dafle-Lele case erreq in quashing rr. 4 and 9 of ---#-. F the 1982 Rules. The plea of the respondents that the quota rule was not striclty enforceable on account of the words "as far as practicable" ., in r. l(b) of the 1960 Rules or that it was relaxed or given up later-bas been denied and it is said that the appointments of the prolnotees in excess of the quota, therefore, could not be treated as valid until the date when the posts became available in their share and consequently the earlier period cannot be considered for the question of their seniority.

15Copy pinpoint15. The main thrust of Mr. Tarkunde's argument is th31t the . permanent Deputy Engineers and the officiating Deputy Engilteers were in two cadres and as·the officiating Deputy Engineers coul<\I not be treated to be included in the permanent cadre having only perma-

ENQG. OFFICERS ASSCN. "-STATE OF MAHARASHTRA {SHARMA, J.] 917

-~ nent posts, they were not entitled to compete with the direct recruits in the matter of seniority. It is !Jue that initially the cadre consisted of ---~- only permanent posts. The promo tees, however, claim that the addi- tional posts were subsequently added to the cadre and no new cadre was formed.

16Copy pinpoint16. Great emphasis was laid by Mr. Tarkunde on the language of B ._. certain mies on the basis of which it was urged that the cadre of the permanent Engineers was higher in rank than that of the officiating Engineers, who had to be further promoted for becoming members of the said cadre. Rule 8(i) of the 1960 Rules, which was relied on for this

- \<:. purpose, reads as follows:

"8(i) The Sub-Divisional posts in the Department are; at c present, manned by direct recruits to Bombay Service of Engineers, Class II cadre, Deputy Engineers confirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruited by the Bombay Public Service Commission, officiating Deputy Engineers and similar other D categories. These. various categories are being compiled inti> two lists only, viz., Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and a list of Officiating Deputy Engineers. The future recruitments to I Bombay Service of Engineers, Class II cadre shall be made by nomination of candidates recruited direct by competi- E tive examination, held by the Commission, and by promo- tions from the list of officiating Deputy Engineers. The

-, . t--- number of such promotions shall be about one third the numb-er of direct recruits appointed in that year."

~ I The argument is that if the officiating Depµty Engineers could be F -\ "promoted" to Bombay Service of Engineers, Oass II cadre, how could they be treated as part of the said cadre earlier ..It was pointed out that the second sentence of the above mle-in express terms directs two lists to be prepared, one of the permanent Deputy Engineers, and the other of officiating Deputy Engineers. Admittedly the appointment of all the direct recruits was made as against the permanent vacant posts G

- ::::::io::r" and on their successfully completing the probationary period they were confirmed against those posts while the promotees were posted in the temporary posts as officiating Deputy Engineers. Rule 8(i), according to the appellants, therefore, makes a clear distinction bet- ween the two groups, which could not be lumped together. Reliance was also placed on the language of rr. 5, 6, 12(a), 30 and 33 of the 1970 H

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A Rules. We are not in a position to agree with the learned counsel that the rules indicate that the officiating posts were not included in the cadre of the Deputy Engineers. It is true that the use of word "prom.o- tions" in r. 8(i) of the 1960 Rules is not quite appropriate, but that by itself cannot lead to the conclusion that the officiating Deputy Engineers formed a class inferior to that of the permanent Engineers. B As was stated with reference to the expressions like 'substantive capa- city', 'service' and 'cadre' in Baleshwar Dass v. State of U.P. and others, [ 1981] 1SCR449 (at page 463 C-E), we cannot attribute fixed connotation to the expression 'promotion' without reference to the context. The expression, there has been used in the sense of confirma- tion. The language used in several other rules is inconsistent with C two-cadre theory, and by way of illustration r. 12(a) may be consi- dered. Rules 5 and 24 of the 1970 Rules mention only 4 cadres in Class II-namely, those of Sub-Divisional Officers, Sub-Divisional Engineers, Assistant Engineers Class II and Deputy Engineers and there was no separate cadre of officiating Deputy Engineers. Rule 12(a) of the 1970 Rules expressly includes some of the officiating D Deputy Engineers within the cadre of Deputy Engineers, although it leaves behind the other officiating Deputy Engineers who started officiating later than 30.4.1960. Rule 13 speaks of officers "officiating in the earstwhile cadre of Deputy Engineers" and r. 27 of "officiating promotions" which are inconsistent with two-cadre theory. In r. 33 of the 1970 Rules also two lists were directed to be prepared, not cadre- E wise but in each cadre, deary indicating that the lists were different from cadres. In r. 8(i) of the 1960 Rules also the different groups were not described as different cadres. They were referred to as "cate- gories" and what the re-organisation suggested was with reference to "lists" to be prepared. It will not, therefore, be right to equate the lists with cadres. It is true that the Rules have not in express language F stated that the officiating posts also will be in the cadre but if all their relevant provisions are considered, they unmistakably lead to the said conclusion. Excepting the use of the word "promotions" in r. 8(i) of the 1960 Rules no other provision appears to help the appellants.

17Copy pinpoint17. This question was considered in Patwardhan's case at consi- G derable length, and a categorical finding against the direct recruits was arrived at, which has been followed for the last more than a decade, in many cases arising between members of Maharashtra and Gujarat Engineering Services. The question is of vital importance affecting a - very large number of officers in the departments concerned and many disputes have been settled by following the judgment in Patwardhan's H case. In such a situation it is not expedient to depart from the decision

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- respondents who were in substantive rank of Overseers were only officiating Deputy Engineers and that as they did not belong to the cadre of Deputy Engineers they were not entitled to promotion inasmuch as they had to put in after confirmation as Deputy Engineers F 7 years of actual service before being eligible for promotion as officiat- ing Executive Engineers". The arguments were addressed with refe- rence to several rules including r. 8, and this Court while rejecting the stand of the direct recruits observed thus:

"In our view it is the list of such persons that is referred to G in cl. (ii) of rule 8 and not that there should ·be a list of persons actually officiating as Engineers for further promo- tion to the same post which will have little meaning, for there cannot be a promotion of a person in the same cadre of service who is already promoted whether as an officiat- ing or temporary or permanent incumbant. If cl. (i) of r. 8 H

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A provides that Class II cadre shall be recruited by competi- tive examination, the promotees also are promoted from the list of persons considered fit to hold sub divisional charge, i.e., post of Deputy Engineers. If in the case of direct recruits the appointment is without reference to oon- firmatio·n, it cannot be any different in. the case of B promotees."

This interpretation of r. 8 is binding as a precedent. It is urged by Mr. Tarkunde that the ratio of the Divison Bench judgme~t in State of Gujarat v. C.G. Desai and Others, [1974] 2 SCR 255, supports his

c argument and should be followed. We do not think so. The contro- versy, there, also related to the construction of r. 7(ii) of the 1960 Rules requiring the minimum service of 7 years for a Class II officer - to be promoted as officiating Executive Engineer. The respondent No. 1 C.·G. Desai who was not considered eligible for promotion was earlier officiating as Deputy Engineer from May 1955 to December ..

1959. Thereafter he successfully competed at an examination for direct ' D recruitment to Class II Service held by the Public Service Commission and was appointed as Permanent Deputy Engineer. For the purpose of his promotion to the higher cadre he relied on his officiating service before he was selected as a direct recruit, which was denied by the Government. In a writ case his claim was accepted as legitimate by the High Court. This decision was challenged pefore this Court; and it was \. E held by the judgment in the reported case that the respondent was not entitled to count his experience as officiating Deputy Engineer before his selection as a direct entrant in the Service. It was, inter alia, observed that if a person like the respondent leaves his position in the long queue of officiating Deputy Engineers with a view to avoid the tortuous wait for promotion and takes a short-cut, "he gives up once - F for all the advantages and disadvantages" of continuing as an officiat- ing Deputy Engineer and accepts all the handicaps and benefits which attached to the group of direct recruits. "He cannot, after his direct recruitment claim the benefit of his pre-selection service and thus have the best of both the worlds." In this set up and for the purpose of construing r. 7 and considering the necessary qualification for promo- G tion as an Executive Engineer, it was observed that the direct recruits and the promotees in Class II constituted two groups or classes, and it was pointed out that unless the pre-selection service as officiating Deputy Engineer of direct recruits was excluded for reckoning the 7 years experience, it would create two classes amongst the same group of direct recruits and result in discrimination against those direct H recruits who had no such pre-selection service to their credit. The

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decision has to be understood in this background and it cannot be of A ------- any help to the present appellants.

18Copy pinpoint18. Even on an independent consideration of the provisions of the Rules, the relevant materials and the arguments addressed on behalf of the parties, we are of the view that the temporary posts of Deputy Engineers against which promotees officiated, did not form a B separate .cadre and were additions to the main cadre. These temporary posts were created in pursuance of several resolutions of the State· Government and an. examination of their language is helpful in resolv· ing the controversy. The resolution No. ENH-1062-C, dated 8th

- ~ November, 1962 (Ext. 'A' at page 277 of Vol. V of the paper book) after referring to the sanction accorded by the Government for crea· tion of the temporary posts stated, c "The posts of Executive Engineer and Deputy Engineer should be treated as temporary additions to their respective cadres." (emphasis added) D

Similarly the Resolution No. CDS 1170-F, dated the 3rd of November 1970, dealing with the temporary posts created in the departments of Irrigation and Power stated as follows: {pages 283-286, at page 284 paragraph 3 of Vol. V of the paper book), E "The temporary posts in each Department be treated as temporary additions to the respective cadres." -,,._ .. (emphasis added)

Mr. K.K. Singhvi, the learned counsel for the promotees relied upon ' these resolutions and several other documents in support of the finding of this Court in P.Y. Joshi's case and Patwardhan's case comprising the single-cadre theory and contended that these and other materials were available to the Court in Patwardhan's case. Mr. T<1rkunde, on the other hand, argued that some fresh materials have come to light since after the judgment in Patwardhan's case, which had not been made available by the State earlier. There is serious controversy as to the interpretation of these documents alleged to have been later dis· covered by the direct recruits and in our opinion they do not furnish any evidence of substantial nature to outweigh the materials produced by the State in Patwardhan's case including the aforementioned reso· lotions. In the circumstances, we do not consider it necessary to dis· cuss this question any further and close the issue by holding that the H

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