Constitution of India, 1950: Articles 14, 16 and 309-Rules relating to seniority of Maharashtra Service of Engineers-Validity of.

Articles 32 and 226-Constructive Res judicata-Applicability of.

Labour and Services: Reorganised Bombay State Overseas and Deputy Engineers Seniority Lists Rules 1978/Maharashtra Service Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for specified period) Rules, 1982/Executive Engineers and Assistant Engineers belonging to the Maharashtra Service of Engineers Class 1 and Class II (Regulation and Revision of Seniority Lists) Rules 1983/1984-Whether violative of Articles 14 and 16 of the Constitution of India.

Seniority and promotion-Direct recruits and promotees-inter-se seniority-To be counted from date of appointment, not confirmation-Ad-hoc appointment-Officiation in such post-Cannot be taken into account for considering seniority.

Quota rule-Absence of statutory rule Can be prescribed by executive instruction-To be followed strictly Consecutive non- adherence-Effect of.

Civil Procedure Code, 1908: Section 11, Explanation IV-Res judicata-Applicability to writ cases.

The parties in these matters are Engineers in the employment of the States of Maharashtra and Gujarat. In 1937, Government of Bombay created two new Provincial Engineering Services known 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. 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. A resolution was passed on 21.11.1941 for determination of the seniority of the direct recruits and the promotee officers, containing only two rules. Rule 2 thereof was to the effect 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. 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 a 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 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 undertaken by the Government and ultimately in partial supersession thereof a fresh set or rules, were adopted in 1970.

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.

During the period 1960-70 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. 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. As per rule 33 of the 1970 Rules, the seniority list in each cadre in Class I and Class II was to 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. Though the Rules were amended in 1972, there was no departure from the main scheme especially the principle governing seniority.

In pursuance of the 1970 Rules seniority lists were prepared. The validity of r. 8(iii) of the 1960 Rules and of r. 33 of the 1970 Rules was successfully challenged as being violative of Articles 14 and 16 of the Constitution. S. B. Patwardhan and Ors. v. State of Maharashtra and Ors., (1977) 3 SCR 775.

In view of the judgment in Patwardhan's case, it became necessary to prepare fresh seniority lists. Rules were framed under Article 309 of the Constitution read with s. 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.

In 1981 further rules called Re-organised Bombay State Assistant Engineers and Executive Engineers Seniority Lists Rules, 1981, 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 30.4.60. These rules have been successfully challenged in the High Court.

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 1.5.1960 to 20.12.70 and are called the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982. These rules were framed in view of the decision of the Bombay High Court in S.B. Patwardhan's case. 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 officiation.

For the purpose of fixing the seniority of Executive Engineers and Assistant Engineers for the period commencing from 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. As a result of a decision of the High Court striking down Sections 4 and 9 of the 1982 Rules, the 1984 Rules were framed by the Government.

The present appeals, special leave petitions and Writ Petitions challenge the validity of the Rules framed in 1978, 1982, 1983 and 1984.