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(5) The seniority of those confirmed earlier was higher than the seniority of those confirmed later. The Government had "bus to maintain three separate seniority lists of Executive Engineers. In List No. 1 were the confirmed Executive Engineers drawn from both the sources arranged in accordance with their seniority determined by the dates of their confirmations. In List No. 2 were the officiating Executive Engineers drawn from Assistant Executive Engineers Class I only with their own separate inter se seniority. In List No. 3 were the officiating Executive Engineers drawn from Assistant Engineers Class Ii with their own separate inter se seniority.

(8) Alternatively, if the confirmations and the seniority were in accordance with the Rules and the administrative instructions, then they were violative of Article 16(1) of the Constitution as they denied equality of opportunity in employment to the petitioners.

(9) Before considering the merits of these contentions we have to consider whether these petitions have been unduly delayed and whether the discretionary reliefs under Article 226 of the Constitution should, therefore, be denied to the petitioners. The most important grievance of the petitioners is the higher seniority given to the respondents. The earlier confirmations of the respondents are challenged primarily because they were made the basis of seniority and only secondarily because confirmations of the petitioners are desirable even in themselves. But the crux of both these grievances is rule 4. Either it is wrongly construed by the Government or it is unconstitutional. The cause of action for the ptitioners, therefore, to challenge rule 4 arose as soon as it was framed in 1954. At any rate, the Government started making confirmations of respondents earlier than those of the petitioners from 1957 and left no doubt in the mind of the petitioners that the Government applied the rotation system in doing so. The cause of action, therefore, arose in favor of the petitioners in 1957 at any rate.

The rotational system is, therefore, firstly justified by rule 4(2) itself. Even if it is assumed for the sake of argument that rule 4(2) is silent about the rotational system, then the administrative instructions make it clear that the quota system in rule 4'(2) has to' be worked out only by the rotational system and not any other manner. As a rule, confirmations of officiating Executive Engineers promoted from the grade of Assistant Engineers Class Ii are made only when vacancies are available for such confirmation according to the rotational system. The first two confirmations are of officiating Executive Engineers drawn from the class of Assistant Executive Engineers Class I and the third confirmation would be of an officiating Executive Engineer drawn from the Class of Assistant Engineer Class Ii and so on. The reason is that the Government ascertains before such confirmation whether the vacancies in which the confirmations are made definitely belonged to the officers drawn from the class of Assistant Executive Engineers Class land the officers Shri S. S. Ojha, petitioner in Civil Writ 716 of 1969, seems to be an exception to this rule. He was confirmed along with respondents 5 to 8 with effect from 13-10-1961. The respondent No. 9 was confirmed from 14-5-1962. Nevertheless not only the respondents 5 to 8 but also the respondent No. 9 was later shown as senior to Shri Ojha. Shri Ojha, however, admits that previously his seniority was only provisional. It is obvious, therefore, that according to the information in the possession of the Government, even the respondent No. 9 has to be regarded as senior to Shri Ojha in accordance with the rotational system of implementing the quota rule. If this was so, the confirmation of the petitioner Shri Ojha with effect from 13-10-1961 might itself have been wrong. For, there must have been certain permanent vacancies which could be filled only by persons drawn from the class of Assistant Executive Engineers Class I above the vacancy in which the petitioner Shri Ojha was confirmed according to rotational system. Unless those vacancies were first filled, the petitioner Shri Ojha should not have been confirmed. But the respondent No. 9 has already been given seniority above the petitioner and this may be the reason why he did not find it necessary to question the confirmation of the petitioner from a data earlier than the data on which respondent No. 9 were to be disturbed and if he was to be regarded as being below the petitioner in the order of seniority, respondent No. 9 would be able to show that the petitioner was not entitled to be confirmed earlier than him. If the respondent No. 9 can show that the vacancy in which the petitioner was confirmed was below the vacancy in which he was confirmed according to the rotational system, then the Government would have to de-confirm the petitioner and put his date of confirmation below the date of confirmation of the respondent No. 9. A mistaken order of confirmation is not final and can be corrected by a subsequent order of de-confirmation as was held by the Supreme Court in State of Punjab v. Jagdip Singh & Ors. . The only way in which the petitioner could have successfully challenged the seniority given to the respondent No. 9 above the petitioner was by pleading that according to the rotational system implementing the quota rule. the petitioner was entitled to be senior to the respondent No. 9. The petitioner has made no such pleading. The case of Shri Ojha is that because he was officiating as an Executive Engineer Class I from before the time the respondent No. 9 started officiating, Shri Ojha was entitled to seniority not only against respondent No. 9 but against the other respondents also. This stand is contrary to the last part of rule 4(2) which compels the Government to fill the vacancies in the grade of Executive Engineers Class I strictly by rotation system implementing the quota rule. Our conclusion on question No. 1, therefore, is that the earlier confirmations and the higher seniority given to the respondents are legal both according to the statutory rule 4(2) and according to the administrative instructions.

(13) Question NO. 2:- Equality of opportunity in matters relating to employment guaranteed by Article 16(1) of the Constitution is subjected to the rule of reasonable classification. The petitioners and the respondents admittedly belong to two different classes before they were promoted as Executive Engineers. The petitioners claim that immediately on such promotion they and the respondents should be held to form only one class of officiating Executive Engineers. We are unable to accede to this contention. The reason is that there was no comparison on merit otherwise between the Assistant Executive Engineers Class I promoted as of right outside the Rules and the Assistant Engineers Class It promoted by selection under Part Tv of the Rules. This was why two separate seniority lists had to be maintained in respect of these two classes of promotees. Therefore, even though both these classes of persons were occupying the posts of Executive Engineers Class I with the same designations and same scale of pay they were not integrated into one class till they were confirmed as Executive Engineers. In State of Punjab v. Joginder Singh, (1963) Supp. 2 S.C.R. 169 the teachers of the Punjab State cadre and the teachers of the District Board and Municipal Board schools formed into a provincialised cadre, did the same work and got the same scale of pay. The latter claimed that they had been integrated with the former and, therefore, the opportunities of promotion to them should be equal to the opportunities of promotion to the former. One of the reasons why this claim was resisted by the State of Punjab was that the inter se seniority of the members of each of these two cadres was known as but no seniority was fixed between the members of these two different cadres in relation to each other. The date of confirmation in the service is the crucial date for determining such seniority. The teachers in the provincialised cadre were not confirmed and, therefore, their seniority vis-a-vis the teachers in the State cadre could not be established. The Supreme Court held that there was force in the submission made by the State of Punjab. Ayyangar, J., speaking for the majority at page 189 of the report observed as follows: "IF,as we hold, there was no integration (and integration has no meaning unless it is complete, for there is no such thing as partial integration) either expressly or by necessary implication, it would follow that it was not the impugned rules that created the two distinct cadre but that they existed independently of the rules and the only charge that could be laid against the rules in this respect was that they failed to effect an integration."