Gujarat High Court
V.V. Bhramkshtriya And Ors. vs State Of Gujarat And Anr. on 14 August, 1989
Equivalent citations: (1990)1GLR256
JUDGMENT R.C. Mankad, J.
1. This group of petitions, though it involves conflict of interest between direct recruits and promotes, does not raise the usual controversy of inter se seniority between them. The main dispute here centres around the Rule fixing the quota of direct recruits and promotees, and the contention of the rival groups is that this Rules has been violated. The stand of the State Government, however, is that it has adhered to the quota rule, and no appointments have been made in branch thereof.
2. In order to appreciate the rival contentions, it is necessary to refer to the facts and the background in which, the question regarding fulfilment of quota Rule has arisen before me. The Rules called Executive Engineers ("XEN" for short) (Civil) Gujarat Service of Engineers Class-I Recruitment Rules, 1979 ("GSE Class-I Rules" for short) and Deputy Engineers ("DEN" for short) (Civil) Gujarat Service of Engineers Class-II Recruitment Rules, 1979 ("GSE Class-II Rules" for short) were made by the Governor of Gujarat in exercise of powers conferred upon him by proviso to Article 309 of the Constitution of India. Rule 2 of GSE Class-I Rules lays down how appointment to the posts of XENs (Civil) in GSE Class-I is to be made and it reads as under:
(2) Appointment to the post of Executive Engineers (Civil), in the Gujarat Service of Engineers, Class-I shall be made either:
(b) by direct selection, or
(c) by promotion of a person of proved merit and efficiency from amongst the persons working as Deputy Engineers (Civil) Gujarat Service of Engineers, Class-II possessing the minimum qualification of diploma in Civil Engineering or an equivalent qualification recognised by Government and having minimum service of Seven years as Deputy Engineers (inclusive of the period spent on probation).
There is a similar Rule 2 providing for appointment to the post of DEN (Civil) in GSE Class-II in GSE Class-II Rules, and it reads as follows:
(2) Appointment to the post of Deputy Engineers (Civil), Gujarat Service of Engineers Class-II shall be made either -
(a) by direct selection; or
(b) by promotion of a person of proved merit and efficiency from amongst the persons working in the cadres of Junior Engineers (Civil), Supervisors (Civil) and Overseers (Civil).
Rule 3 was and is in identical terms in both GSE Class-I Rules and GSE Class-11 Rules. This Rule, before its amendment in May 1982 read as follows:
(3) The appointment by direct selection and promotion shall be made in the ratio of 1:3 (i.e. one by direct selection and three by promotion).
Provided that if in any year recruitment by direct selection is not made according to the prescribed ratio the shortfall of direct recruits shall lapse and shall not be carried forward in the subsequent year.
By amendment of Rule 3, with effect from May 21, 1982, the ratio of direct recruits to promotees is altered to 1:4 (i.e. one by direct selection and four by promotion) and the proviso to the Rule stands deleted.
3. GSE Class-I and GSE Class-II Rules lay down the procedure for appointment by direct selection. Rules lay down that for appointment by direct selection, a competitive examination shall be held by the Gujarat Public Service Commission ("Commission" for short) in accordance with the Rules mentioned in the Annexure appended to the Rules. It is provided that the examination shall be common for both the services viz. GSE Class-I and GSE Class-II, the result thereof shall be arranged in order of merit of the candidates and the appointments to GSE Class-I or Class-II shall be made seriatum from the list of result prepared for the two cadres by the Commission, subject to the fulfilment of requirements of physical fitness and other provisions of the Rules. The Rules further provide that the qualified candidates securing the highest places in order of merit, shall be offered appointments in the GSE Class-I according to the number of vacancies declared for such recruitment to that cadre. The candidates securing the next higher places, in order of merit in the list shall be offered appointments to the GSE Class-II, provided they have indicated their willingness to be so appointed in their application to the Commission for admission to the examination.
4. The Commission held examination for direct selection to the posts of GSE Class-I and GSE Class-II in December 1980 and February 1982. Candidates had to appear for written and viva voce tests at the said examinations. The Commission declared the results of December 1980 examination in September, 1981 and February, 1982 examination in September, 1983. The Commission had fixed qualifying or minimum marks for written as well as viva voce tests. Many candidates who had secured good marks at the written test, did not secure minimum qualifying marks at the viva voce test and, therefore, their names were not included in the select lists prepared on the basis of the results of the written and viva voce tests. Such candidates challenged the results declared by the Commission and select lists prepared by the Commission on the basis of such results by filing petitions being Special Civil Applications Nos. 8820 of 1981 and 5381 of 1983 in this Court. The Division bench of this Court, to which I was party, by its judgment and order dated November 5, 1984, allowed those petitions and held to the effect that in absence of any basis or rationable in adopting 50%of the total marks as qualifying or minimum marks at viva voce examination, it could not be held that the Commission had adopted fair and reasonable standard for making objective assessments of the qualities required of the candidates for being selected to the posts of GSE Class-I and GSE Class-II. It was held that fixing of qualifying marks had no nexus to the examination. The Division Bench was, therefore, of the view that, the action of the Commission in fixing the qualifying marks for viva voce test was arbitrary, unreasonable and unjustified. The Commission, it was held, should have prepared merit list on the basis of the aggregate marks obtained by each candidates at the written as well as viva voce tests. The Commission was, therefore, directed to revise the merit lists on the basis of the aggregate marks obtained by the candidates at the written and viva voce tests, ignoring the concept of minimum qualifying marks for viva voce test. The Commission was further directed to make appropriate recommendations to the State Government on the basis of the revised merit lists. The Court directed that if the petitioners of the aforesaid two petitions were entitled to appointments to the posts in GSE Class-I and Class-II on the basis of inclusion of their names in the merit lists, such appointments shall be given to them by the State Government. In such an event, the State Government was directed to give them appropriate seniority in accordance with their rank in the merit list, and if necessary they were to be given deemed dates of appointment without any monetary benefit. As a result of the directions given by this Court, as stated above, the Commission revised the merit lists prepared on the basis of the results of the examinations held in December 1980 and February 1982.
5. Petitioners of Special Civil Applications Nos. 4411 of 1982 712 of 1986, 1300 of 1986 and 1522 of 1989, contend that although their names have been included in the revised select lists prepared by the Commission, they have not been given appointments to the posts of GSE Class-I or GSE Class-II as the case may be in accordance with the quota Rule. They contend that the posts which were available have not been allocated between direct recruit and promotees in accordance with the quota Rule and the promotees have been given appointments in excess of their quota. It is submitted that the State Government has not given appointments to direct recruits although they were available and appointed promotees in excess of their quota.
6. Petitioners of Special Civil Applications Nos. 743 of 1985 and 5295 of 1985, contend that the select lists which the Commission has prepared, without taking into consideration the aggregate marks obtained at the written as well as viva voce tests, is bad in law, inasmuch as there was no justification to prescribe the qualifying or minimum marks for viva voce test and exclude the names of the candidates who had not secured such qualifying or minimum marks, while preparing the select lists. Second grievance made by these petitioners is that, they would be entitled to appointments in the quota of direct recruits, if the select list is revised on the basis of the aggregate marks at the written as well as viva voce tests.
7. So far as the first grievance of these petitioners is concerned, it has already been redressed by the decision of this Court referred to above. Select lists, I am told, are already revised by the Commission. Therefore, the only grievance, which survives so far as these petitioners are concerned, is that they are entitled to appointments in GSE Class-II as per the quota fixed for the direct recruits.
8. Special Civil Application No. 913 of 1986 is filed on behalf of the DENs, who are in GSE Class-II and Special Civil Application No. 935 of 1986 is filed on behalf of the Assistant Engineers ('AEN' for short) who are in GSE Class-II. DENs, who possess the requisite qualification and experience prescribed by GSE Class-I Rules, are eligible for promotion to the post of XEN in GSE Class-I and AENs are entitled to promotion to the post of DEN in GSE Class-II, provided they satisfy the criterion of "proved merit and efficiency". The grievance of these petitioners is that on account of revision of select lists by the Commission, the State Government propose to make appointments by direct selection to GSE Class-I and GSE Class-II posts in excess of the quota prescribed for direct selection. It is submitted that the State Government has already made appointments of direct recruits in excess of their quota and they propose to make further appointments of direct recruits. There is thus clear breach of the quota Rule and the proposed action of the State Government being arbitrary is violative of Article 14 of the Constitution.
9. State Government, on the other hand, contents that it has not committed any breach of the quota rule. According to it, financial year is taken as unit for the operation of the quota rule and under Rule 3 before its amendment in May 1982, if the direct recruits were not made available, their quota for that particular year lapsed. It is submitted that all the vacancies which existed for the years 1981-82 and subsequent years have been filled up according to the prescribed quota and, therefore, petitioners have no right to claim any appointment to the post in question. It is further submitted that, petitioners, who are on the waiting lists, have no right whatsoever to claim appointments to the posts in question. It is pointed out that posts falling vacant on account of the officers going on deputation to other Departments or Corporations, and the temporary posts created in a particular year, are not to be taken into account for the purpose of direct recruitment. In other words, according to the State Government, quota rule has no application to such posts. It is submitted that under Circular dated January 10, 1964, the State Government directed that temporary posts as have been in existence for two years and are likely to be continued for a further period of one year or more, should be taken into account when deciding the question of direct recruitment in accordance with the Recruitment Rules of a particular cadre or service. It is, therefore, submitted that for the purpose of making direct recruitment, only those temporary posts which have remained in existence for more than two years and which are likely to be continued for a further period of one year or more, are to be taken into account. Other temporary posts cannot be taken into account for direct recruitment and these posts have to be filled up by giving promotions to the qualified persons in GSE Class-I and GSE Class-II posts.
10. Rule 3 which is identical in language in both GSE Class-I Rules and GSE Class-II Rules, provides for quota or ratio of direct recruits promotees. Before the amendment of this rule, in May 1982, this ratio was 1:3 (i.e. one by direct selection and three by promotion). By the amendment in May 1982, this ratio was altered to 1:4 (i.e. one by direct selection and four by promotion). Before the amendment was made in May 1982, proviso to Rule 3 laid down that if in any year, recruitment by direct selection is not made according to the prescribed ratio, the short-fall of direct recruits shall lapse and shall not be carried forward in the subsequent year. This proviso was, however, deleted by the amendment made in May 1982.
11. As pointed out above, the Commission prepared select lists in September 1981 on the basis of the results of the examination held in December 1980 and another select list in September 1983 on the basis of the results of the examination held in February 1982. Unamended Rule 3 will apply so far as the select list of 1981 is concerned, and amended Rule 3 so far as select list of 1983 is concerned. It is further pertinent to note that under Circular No. PSC-1078-7241-G-II, dated April 4, 1979, issued by the Government of Gujarat in General Administration Department, select list prepared by the Commission on the basis of the competitive examination would remain in force, till the result of the next examination is declared. Therefore, the select list prepared by the Commission in September 1981 would remain in operation till September 1983, and the select list prepared in September 1983 till declaration of the result of the next competitive examination. There is nothing on record to indicate whether the Commission has held any competitive examination after February 1982 and even if it has held such examination, whether it has declared result thereof.
12. First question, which arises for consideration, is which are the posts which are to be reckoned for the purpose of applying the ratio prescribed by Rule 3 of the Recruitment Rules. Circular of 1964, adverted to above, does lay down that the temporary posts which have remained in existence for two years and are likely to be continued for a further period of one year or more, have to be reckoned for making direct recruitments. However, GSE Class-I and GSE Class-II Rules made in the year 1979 do not exclude temporary posts of duration less than the one prescribed by the Circular of 1964, for the purpose of applying the ratio prescribed by Rule 3. GSE Class-I and GSE Class-II Rules are made subsequent to the Circular of 1964, and, therefore, if the Rules making Authority wanted to incorporate the directions given by the State Government in the Circular of 1964, it would have done so. Rule 3 not say either specifically or by incorporation that the ratio would apply only to permanent posts and to those temporary posts which have remained in existence for two years and are likely to be continued for one year or more. As pointed out above, Rule 3 does not make reference to or distinction between permanent posts and temporary posts. It says that appointment by direct selection and promotion shall be made in the ratio of 1:3 or 1:4 from May 1982. Rule 2 speaks of making appointments to the posts in question by direct selection or by promotion, and Rule 3 lays down in what ratio such appointments have to be made. Appointment can be made to permanent post or temporary post. Rules 2 and 3 do not make any distinction between appointments to temporary posts and permanent posts. Whether the posts are temporary or permanent, appointments are to be made to those posts and all such appointments are governed by Rules 2 and 3. It is not disputed that promotion either in GSE Class-I or GSE Class-II can be given only to such person who possesses prescribed qualification and experience under GSE Class-I or GSE Class-II is made under GSE Class-I or GSE Class-II Rule. Now, if the rules do not make any distinction between appointment to permanent post or temporary post, I fail to see how such promotees can be appointed to the posts which are temporary and which are not in existence for two years and are not likely to be continued for one year or more. GSE Class-I and GSE Class-II Rules are statutory rules, and it is not open to the executive to make departure from such rules and make appointments in breach thereof. Even if Circular of 1964 provides that for the purpose of making direct recruitment, the temporary posts which have remained in existence for two years and are likely to be continued for one year or more have to be taken into consideration, the Circular must be taken to have been overridden by GSE Class-I and GSE Class-II Rules. In other words, this Circular will have no effect or operation insofar as the appointments are to be made under the said Rules. While making the said rules, the ratio prescribed by Rule 3 could have been made subject to circular of 1964 or it could have been specifically provided that ratio will apply only to permanent posts and temporary posts which have remained in existence for two years and are to be continued for one year or more. However, in absence of such specific provision, no distinction can be made between permanent post and temporary post or temporary posts, which are not covered by the circular of 1964 for the purpose of applying the ratio prescribed by Rule 3. In my opinion, all posts whether permanent or applying - have to be reckoned for the purpose of applying ratio prescribed by Rule 3. In fact, I find from the affidavit of R.D. Pandya, Joint Secretary to the Government of Gujarat, Irrigation Department, filed on November 1, 1982, in Special Civil Application No. 4411 of 1982, that all posts including temporary posts created in the relevant years were taken into consideration for making appointments by direct selection and by promotion in the prescribed ratio. It was only in the affidavit of K.J. Bhatt, Deputy Secretary to Government of Gujarat, Buildings & Communication Department, which was also filed on November 1, 1982, in Special Civil Application No. 4411 of 1982, that it was stated that under the Circular dated January 10, 1964, only those temporary posts, which have remained in existence for two years and are to be continued for one year or more are to be taken into account while making appointment by direct selection in the ratio prescribed by Rule 3. It would appear that there is no coordination between the two Departments of the State Government, namely, Irrigation Department and Roads & Buildings Department and each Department was applying different standard for making appointments by direct selection to the posts in GSE Class-I and GSE Class-II. However, as pointed out above, in absence of any specific provision in the Rules themselves, it would not be correct or proper to apply the ratio prescribed by Rule 3 only to permanent posts and temporary posts which have remained in existence for two years and are likely to be continued for a further period of one year or more.
13. The Quota rule has to be enforced with reference to the vacancies in all posts whether permanent or temporary included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) (vide A.K. Subraman v. Union of India . It would, therefore, not be correct to confine application quota rule only to permanent posts and some of the temporary posts as is sought to be urged on behalf of the respondents.
14. It further appears that the State Government has not reckoned the vacancies arising on account of officers going on deputation to other Government Departments or Corporation for applying the quota Rule. Now, if a vacancy arises on account of the incumbent going on deputation for 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 quota rule irrespective of the fact whether any Officer is having a line on that post, because it would be a regular vacancy, and the person promoted to fill the vacancy would be efficiating in the promotional post would continue as such without reversion until confirmed and his promotion would, therefore, be by way of recruitment to the cadre of the promotional post (vide P.S. Mahal v. Union of India .
15. It is not the case of the State Government that the officers who had been sent on deputation were sent for a short period. It is also not stated persons promoted to fill in vacancies arising on account of the officers going on deputation had to revert. Under the circumstances, in my opinion, the vacancies arising on account of officers going on deputation would be subject to quota Rule irrespective of the fact whether the officer is having lien on that post. Many decisions dealing with the question of inter se seniority between direct recruit and promotees were cited before me but I do not consider it necessary to refer to them as they have no direct bearing on the question which is under my consideration.
16. In the light of the above discussion, it is clear that State Government was required to take into consideration: (1) vacancies in permanent posts, (2) vacancies in temporary posts - whether newly created or existing, (3) vacancies on account of retirement and (4) vacancies on account of the officers sent on deputation to other Departments and Corporations for reasonably long period for the purpose of applying the quota rule.
17. I will first take up for my consideration the case of the petitioners of Special Civil Application No. 4411 of 1982. These petitioners had appeared at the examination or test held by the Commission in December 1980 for direct recruitment to the posts in GSE Class-I and GSE Class-II. Their names were included in the list of candidates selected for GSE Class-I posts. Each of the petitioners was informed about his selection by the Commission by a letter. One of such letters, Annexure "C" to this petition reads as follows:
With reference to your interview dated 17-8-81 for the post mentioned above, I am directed to state that you are selected by the Commission and your name is kept on waiting list which will remain in operation till the result of the next examination for GSE Class I and II is declared by the Commission.
Petitioners are selected for the post of XEN (Civil) in GSE Class-I. This selection, as already stated above, was made in September 1981. This list, which was prepared in 1981, was revised by the Commission under the directions given by this Court in the judgment adverted to above. However, the revision will have retrospective effect in the sense that it will date back to the date on which 1981 list was published, that is September 8, 1981. It would be 1981 select list which would stand revised. If the revised select list has only prospective effect, the exercise of preparing it would be meaningless, because the result of the next examination has already been declared on September 21, 1988. Select list of 1981 would cease to be operative on declaration of the result of the next examination which was declared on September 21, 1983. Select list, on the basis of the result of the next examination declared in September 1983, has been prepared by the Commission.
18. In my opinion, the State Government will have to set the clock back and for the purpose of applying the quota rule, consider the situation as it obtained in the year 1981-82 and 1982-83. The select list of 1981 was revised later on account of the direction given by this Court, and if this revised list is not to be given effect on the ground that the result of the next examination is declared in September 1983, preparation of the revised select list would never be operated and the success of the petitioners who challenged the result of the examination declared in September 1981, would only be a paper success. State Government can not render the decision of this Court nugatory by taking such a view. In fact, it is stated on behalf of the State Government that they have given effect to the decision of this Court and they have made appointments after the select list was revised by the Commission. The State Government itself also, therefore, appears to be of the view that it had to set the clock back and consider the claims of the petitioners in Special Civil Application No. 4411 of 1982 in the light of the position which obtained in the years 1981-82 and 1982-83. The revised select/waiting list prepared by the Commission has to be implemented and appointments by direct selection of the candidates, whose names appeared in the select/waiting list, have to be made as per the quota rule. Candidates, who are on the waiting list are also selected on merits by the Commission and they are available for appointments by direct selection. Therefore, if the posts, which are allocable to the direct recruits as per the quota rule, are available, the candidates, whose names appeared on the select/waiting list have to be given appointments on such posts. The State Government cannot refuse to implement the revised select/waiting list on the ground that candidates on the waiting list have no right. Waiting list is prepared to make appointment by direct selection in case more vacancies are available, and if vacancies are available and the list is in operation, such candidates on the waiting list can claim to be appointed on the vacancies meant for direct recruits.
19. Petitioners contend that the State Government has not made appointments in accordance with the prescribed ratio and although they were on the select/waiting list, appointments by promotion were made on posts which were allocable to the direct recruits under the quota rule. In other words, according to the petitioners, the posts which were allocable to the direct recruits under the prescribed ratio were utilised for promoting DENs. There was thus breach of the quota rule. On the other hand, it was contended on behalf of the DENs that direct recruits had been appointed in excess of their quota. It was further contended that the State Government proposes to make further appointments of direct recruits on the basis of the revised select list. This, according to the DENs would be in breach of the quota rule. The stand of the State Government is that it has not committed breach of the quota rule.
20. Financial year is taken as unit for applying the quota rule. State Government has supplied yearwise figures of the newly created posts, posts available due to retirement, and vacancies on account of the officers going on deputation for the years from 1979-80 to 1981-82. Separate figures of vacancies arising in permanent posts have not been given; but these figures would be included in the above figures which are supplied by the State Government. State Government has also given yearwise figures of the temporary posts which have remained in existence for two years or more and which were likely to be continued for one year or more from 1979-80 to 1981-82. In the view, which I have taken, the last mentioned figures will have no relevance. The figures of vacancies in 1979-80 and 1980-81 will also not have relevance because under Rule 3 as it stood then, shortfall in direct recruitment would lapse at the unit year. Petitioners in Special Civil Application No. 441 of 1982 are concerned with vacant posts which existed in 1981-82 and, thereafter upon September 1983 since they were on the select/ waiting list from September 1981 to September 1983.
21. Mr. N.J. Mehta, learned Counsel for the petitioners had sought for certain information from the State Government under his letter dated October 22, 1985. This information was supplied to Mr. Mehta and copy of this information is annexed to the additional affidavit in reply dated November 14, 1985 of J.A. Pandya, Under. Secretary to the Government Department of Irrigation. It appears from the information supplied by the State Government that 29 new posts were created and 6 XENs were sent on deputation in 1981-82. From the another statement supplied by the State Government, it further appears that in 1981-82 10 vacancies arose on account of retirement. Thus, there were in all 45 vacancies in Irrigation Department in the year 1981-82 according to the affidavit of J.A. Pandya. So far as the Roads & Buildings ('R&B' for short) Department is concerned, in 1981-82, 3 appointments were made by direct selection, 30 by promotion and 8 XENs were sent on deputation to other Departments/Corporations. The above figures includes 25 newly created posts (vide page 70 of the paper book of Special Civil Application No. 4411 of 1982). There were thus in all 41 vacancies in R & B Department in 1981-82. Vacancies in Irrigation Department and R&B Department combined together would came to 86. Thus, in all, there were 86 vacant posts available for appointment to GSE Class-I. Ratio of direct recruits to promotees under Rule 3, as it then stood, was 1:3 (i.e. one by direct selection and three by promotion). Therefore, 21 persons should have been appointed by direct selection in GSE Class-I in 1981-82. We, however, find from the statements which are supplied by the State Government that in 1981-82, 11 direct recruit were appointed in Irrigation Department and 4 in R & B Department. Thus in all 15 direct recruits were appointed. Even on the basis of the statement, submitted by the State Government, at least 6 more direct recruits should have been appointed in the year 1981-82, I do not have the figures of vacancies in GSE Class-I in the year 1982-83. Since petitioners were on the select/ waiting list, which remained in operation till September 1983, they would be entitled to be appointed on the vacancies meant for direct recruits in the year 1982-83. The State Government should take into account all the vacancies which arose in 1982-83 for considering the claim of those petitioners who could not be appointed in the aforesaid posts in 1981-82. Those vacancies would include newly created posts, vacancies arising on account of retirement, promotion, etc., and vacancies arising on account of officers sent on deputation; and it will be to those total number of vacancies that the ratio prescribed by Rule 3 has to be applied. Ratio under Rule 3 was 1:3 upto May 21, 1982, and thereafter, it is 1:4 (i.e. one by direct selection and four by promotion), Year 1982-83 would end on March 31 1983. If the vacancies in 1982-83 were not sufficient to accommodate all the petitioners, remaining petitioners are entitled to be considered for appointment on vacancies which arose in 1983-84 till the declaration of the result of the next examination which was declared in September 1983. It would thus appear that 6 of the petitioners will have to be appointed in the quota for the year 1981-82 and the remaining will have to be considered for the quota of direct recruits in the years 1982-83 and 1983-84 as aforesaid. If the promotees are appointed to the posts to which direct recruits should have been appointed, they would have to be pushed down as held by the Supreme Court in N.K. Chauhan v. State of Gujarat .
22. In the light of the figures which are supplied by the State Government, I am unable to accept the submission made on behalf of the DENs that the State Government has appointed direct recruits in excess of the quota. It is evident from the figures supplied by the State Government that from April 1, 1979, 232 persons were appointed by promotion and 21 by direct selection in Irrigation Department and 78 persons by promotion and 12 by direct selection in R & B Department. Thus 310 persons have been appointed by promotion against 33 by direct selection from April 1, 1979. The percentage of appointments by direct selection works out to 10%. This clearly indicates that the recruitment to the posts of XEN in GSE Class-I has been lopsided. I, therefore, cannot accept the State Government's submission that appointments of direct recruits have been made in accordance with the prescribed quota. State Government has committed breach of the quota rule by not appointing petitioners to XEN GSE Class-I posts in the years 1981-82, 1982-83 and 1983-84 (upto September 1983). Under the circumstances, there is no question of the State Government proposing to make appointments on the basis of the revised select list prepared by the Commission in breach of the quota rule. As observed above, there is also no substance in the contention raised on behalf of the State Government that the petitioners, who are on the waiting list, have no right and, therefore, they cannot claim that they should be appointed on the vacancies meant for direct recruits.
23. Petitioners in Special Civil Application No. 1522 of 1989 appeared at the competitive examination held by the Commission in December 1980, the result whereof, as stated above, was declared in September 1981. These petitioners do not dispute that the Commission has revised the select list on the basis of the result of the said examination by taking into account aggregate marks obtained by the candidates at the written as well as viva voce tests. Grievance of these petitioners, however, is that the State Government does not implement or give effect to the revised select list prepared by the Commission. According to the petitioners, their names are included in the revised select list and they are entitled to appointment on the posts meant for direct recruits in GSE Class-I. Petitioners contend that they belong to reserved categories and they are entitled to appointment to GSE Class-I post on that ground also. These petitioners appear to be similarly situated as the petitioners in Special Civil Application No. 4411 of 1982 with the additional factor that they belong to reserved category. State Government shall have to consider the question of their appointment along with the petitioners in Special Civil Application No. 4411 of 1982, and if they are entitled to appointment in the light of the observations made above, they shall have to be given such appointment. In considering the case of these petitioners, the fact that they belong to reserved category shall also be borne in mind.
24. An already stated above, petitioners in Special Civil Applications Nos. 743 of 1985 and 5295 of 1985 had appeared at the examination held by the Commission in February 1982. Petitioners in Special Civil Applications Nos. 712 of 1986 and 1300 of 1986, had also appeared at the said examination. All the above petitioners are claiming appointments to the posts of DENs in GSE Class-II. They contend that the State Government has not applied the quota rule to the vacancies which arose in 1983-84 and subsequent years and denied them appointments to the post of DENs, to which they were entitled to under the quota rule.
25. For the reasons given by me above in the context of revised select list of 1981, the revised select list of 1983 would have to be given retrospective effect and implemented from September 1983. In other words, as in the case of select list of 1981, revised select list of 1983 prepared by the Commission will date back to the date on which the first select list of 1983 was prepared that in September 21, 1983. I am not repeating the reasons which I have given why the State Government is required to set the clock back and assume the position as it obtained in September 1983 to implement the revised select list of 1983.
26. There is no clear picture of vacancies in the posts of DENs in GSE Class-II which arose in the year 1982-83 and subsequent years. The revised select list, as stated above, comes into operation from September 1983. We have, therefore, to take into consideration the vacancies which existed in the year 1983-84 and subsequent years for the purpose of applying the quota rule. As held above, following vacancies which are required to be considered are : (1) temporary posts, which are created in the year, (2) vacancies arising on account of retirement or promotion, and (3) vacancies arising on account of the officers going on deputation to other Departments/Corporation. Now, according to the petitioners in Special Civil Application No. 712 of 1986, in 1982-83, there were 176 vacancies in the Irrigation Department, out of which 141 posts were filled up by promotion and no person was appointed by direct selection in that year. According to these petitioners, 65 promotions were given and no appointment was made by direct selection in R & B Department in the year 1982-83. According to the figures given by the State Government, in the year 1982-83, 142 persons were appointed by promotion and no person was appointed by direct selection in the Irrigation Department; and no person was appointed either by promotion or by direct selection in the R & B Department. Now, if we go by the figures given by the State Government 28 persons should have been appointed by direct selection in the year 1982-83. It appears that such appointments were not made because of non-availability of direct recruits. However, in view of the amendment of Rule 3 made on May 21, 1982, proviso to that Rule was deleted and consequently, the posts available to the direct recruits would not lapse. Therefore, 28 posts which were not filled up by direct selection in the year 1982-83 will have to be carried forward in the year 1983-84. So far as the year 1983-84 is concerned, according to the aforesaid petitioners, there were 134 vacancies in the Irrigation Department, out of which 115 were filled up by promotion and none by direct selection. Petitioners have not supplied the figures of vacancies in R & B Department in the year 1983-84. According to the State Government, 127 persons were appointed by promotion and 37 by direct selection in the Irrigation Department in the year 1983-84; and 14 were appointed by direct selection and none by promotion in R & B Department. If these figures are correct, there was no excess recruitment by direct selection to the extent of 15. However, there was carried forward or backlog of 28 posts of the earlier year that is 1982-83. Thus, there were still 13 posts available for appointment by direct selection in the year 1983-84. In the year 1984-85, according to the aforesaid petitioners, 74 persons were appointed by promotion and none by direct selection out of 92 vacancies in the Irrigation Department. They have not given any figures of vacancies in R & B Department in that year. According to the information supplied by the State Government in the year 1984-85, 98 persons were appointed by promotion and none by direct selection in the Irrigation Department, and one person was appointed by direct selection in R & B Department. Thus, there was a short fall of 19 posts in direct selection in the year 1984-85. As pointed out above, 13 posts were carried forward. Thus, the total short-fall in direct selection in the year 1984-85 was of 32 posts. The aforesaid petitioners have not given the figures of vacancies in the Irrigation Department and R & B Department in the year 1985-86. According to the State Government, in that year, i.e. 1985-86, 18 persons were appointed by direct selection and 8 by promotion in the Irrigation Department and no appointment was made in R & B Department. Therefore, so far as the year 1985-86 is concerned, there is excess recruitment by direct selection to the extent of 13 posts which has to be adjusted against the carried forward 32 posts. Thus, there would still be a balance of 19 posts available for recruitment by direct selection at the end of the year 1985-86.
27. It would thus appear that the claim of the petitioners for appointment to the posts of DENs in GSE Class-II in the quota meant for direct recruits is not unjustified. However, as observed above, the picture regarding vacancies available is not very clear and there is difference between the figures given by the petitioners and the State Government. The State Government shall, therefore, have to work out the vacancies in each of the aforesaid years in the light of the observations made above and apply the quota rule. If the petitioners are entitled to the appointment as per the quota rule, they shall be given such appointments and in that case, the promotees who are appointed in the posts available to them will have to be pushed back. Petitioners shall be considered for appointment as aforesaid on the basis of their placement in the revised select list prepared by the Commission.
28. In the view which I am taking, it is difficult to accept the contention raised on behalf of the AENs, whose next promotional post is DENs, that State Government has appointed direct recruits in excess of the quota prescribed by Rule 3. Similarly, the State Government's contention that it has adhered to quota rule in making appointments of direct recruits must also be rejected.
29. In the result, Special Civil Applications Nos. 4411 of 1982 and 1522 of 1989 are allowed. The respondents are directed to operate and implement the revised select list prepared by the Commission on the basis of the result of the examination held in December 1980, by taking into account the aggregate marks of written as well as vive voce test between the period from September 8, 1981 to September 21, 1983, notwithstanding the fact that the result of the next examination was declared on September 21, 1983. Since in all there were 86 vacancies available for appointment by direct selection and promotion to the posts of Executive Engineers, GSE Class-I in 1981-82, 21 appointments were required to be made by direct selection against 15 which have been made in the Irrigation Department and Roads & Buildings Department. Respondents are, therefore, directed to make 6 more appointments by direct selection from the revised list referred to above on merits out of the vacancies available in the year 1981-82. Petitioners who do not get appointments, will be considered for vacancies arising in the year 1982-83 and allocable to direct recruits. For the purpose of applying the quota rule in the year 1982-83, as in the case of the year 1981-82, the vacancies would include newly created posts, vacancies existing on account of retirement, promotion, etc. and the vacancies arising on account of the officers sent on deputation. The ratio to be applied for working out vacancies available to the petitioners for appointment by direct selection would be as prescribed by Rule 3. Under Rule 3, this ratio was 1:3 upto May 21, 1982 and 1:4 thereafter, if the vacancies in the year 1982-83 are not sufficient to accommodate all the petitioners, the remaining petitioners will be considered for appointment in the vacancies allocable to direct recruits as aforesaid which arose between April 1, 1983 and September 21, 1983, the date on which the result of the next examination was declared. Respondents are further directed to take into consideration the claim of the petitioners of Special Civil Application No. 1522 of 1989 that they belong to reserved category while giving them appointment as aforesaid in the year 1981-82 or any subsequent year. In other words, they shall be given appointments as per the existing Reservation Policy. Petitioners shall be given appointments as aforesaid from the date they are entitled to, without giving them any monetary benefit for the period from the date they are entitled to the appointments to the date they are actually appointed and if, necessary, petitioners may be given deemed date of appointment. Petitioners' seniority in the cadre of Executive Engineers (Civil) in GSE Class-I shall accordingly be adjusted. Respondents are directed to carry out the aforesaid directions within six weeks from the date of receipt of the writ of this Court.
Rule made absolute accordingly in each of the aforesaid Special Civil Applications Nos. 4411 of 1982 and 1522 of 1989 with no order as to costs.
30. Special Civil Applications Nos. 743 and 5295 of 1985 and 712 and 1300 of 1986 are allowed. The respondents are directed to operate and implement the revised select list prepared by the Commission on the basis of the result of the examination held February 1982, by taking into account the aggregate marks of written as well as vive voce tests from September 21, 1983 to the date of the result of the next examination held or to be held by the Commission.
31. As discussed above, vacancies were available for making appointments by direct selection in the year 1983-84 and subsequent years. However, as the figures supplied by the petitioners and the State Government do not give correct picture, the respondents are direct to work out the figures of total vacancies existing in the Irrigation Department (Water Resources Department) and Roads & Buildings Department in the year 1983-84 and subsequent years, taking each year as a unit. The ratio to be applied for working out vacancies available to the petitioners for appointment by direct selection would be as prescribed by Rule 3, Under this Rule 3, the ratio was 1:3 upto May 21, 1982 and 1:4 thereafter. Since the proviso to Rule 3 has been deleted with effect from May 21, 1982, the vacancies which are required to be filled up by direct selection and which are not so filled up, shall be carried forward and reckoned in the subsequent years. The respondents are directed to consider all vacancies including the vacancies arising on account of creation of new posts, vacancies arising on account of retirement, promotion, etc. and vacancies arising on account of the officers sent on deputation, for the purpose of applying the ratio of direct recruits to promotees as aforesaid, petitioners shall be given appointments as aforesaid from the date they are entitled to, without giving them any monetary benefit for the period from the date they are entitled to the appointment to the date they are actually appointed and if, necessary, petitioners may be given deemed date of appointment. Petitioners' seniority in the cadre of Deputy Engineers (Civil) in GSE Class-II shall accordingly be adjusted. Respondents are directed to carry out the aforesaid directions within six weeks from the date of receipt of the writ of this Court.
Rule made absolute accordingly in each of the aforesaid Special Civil Application Nos. 743 and 5295 of 1985 and 712 and 1300 of 1986 with no order as to costs.
No order on Civil Application No. 1537 of 1986.
32. Special Civil Application Nos. 913 and 935 of 1986 are rejected. Rule issued in each of these petitions is discharged with no order as to costs.