B. N. Nagarajan And Ors vs State Of Karnataka And Ors. Etc

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 2329 of 1977

Decision Date: 3 May, 1959

Coram: A.D. Koshal, V.R. Krishnaier, P.S. Kailasam

In this matter the petition was filed by B. N. Nagarajan and others against the State of Karnataka and other respondents, and the judgment was delivered on 3 May 1959 by a bench of the Supreme Court comprising Justice Koshal, A.D., Justice Krishnaiyer, V.R., Justice Kailasam, P.S., and Justice Krishnaiyer, V.R. The case is reported in the 1979 AIR 1676, the 1979 SCR (3) 937 and the 1979 SCC (4) 507, and it has been subsequently cited in later authorities such as RF 1991 SC 764. The substantive statutory material relied upon includes the Mysore Government Servants (Seniority) Rules 1957, read together with Rule 2 of the Mysore Government Servants (Probation) Rules 1957, and the question of whether the scope of the writ petition should be limited to the prayer portion alone, within the jurisdiction of Article 226 of the Constitution of India.

The Court noted that the new State of Mysore—now known as Karnataka—had come into existence on 1 November 1956 as a result of the integration of territories that formerly formed the separate States of Mysore, Madras, Coorg, Bombay and Hyderabad. Following the formation of the unified State, the Government enacted on 6 February 1958, 7 February 1958 and 2 December 1960 respectively, three sets of Rules framed under Article 309 of the Constitution: (i) the Mysore Government Servants (Probation) Rules 1957, (ii) the Mysore Government Servants (Seniority) Rules 1957 and (iii) the Mysore Public Works Engineering Department Services (Recruitment) Rules 1960. The recruitment Rules provided that appointments to the post of Assistant Engineer in the Public Works Department would be made by direct recruitment for forty per cent of the vacancies, while the remaining sixty per cent would be filled by promotion—fifty per cent from the cadre of Junior Engineers and ten per cent from the cadre of supervisors. The total strength of the Assistant Engineer cadre was fixed at three hundred and forty‑four permanent posts and three hundred and forty‑five temporary posts.

The Court further explained that before the date of 1 November 1956, the merged States possessed a non‑gazetted class of employees known as graduate supervisors in Mysore State, Junior Engineers in Madras State and supervisors in the former States of Bombay and Hyderabad. These graduate supervisors, who had been given charge of sub‑divisions prior to the integration and who continued in the same positions thereafter, claimed that their posts should be treated as equivalent to those of Assistant Engineers. The Central Government rejected this claim. Nevertheless, on 15 November 1958, a total of one hundred and sixty‑seven persons—including one hundred and seven graduate supervisors from Mysore—were promoted to the position of officiating Assistant Engineer. Between 2 December 1958 and 13 October 1960, an additional two hundred and ninety‑nine persons of the same class were similarly promoted.

With reference to three notifications issued by the Mysore Public Service Commission dated 1 October 1958, 4 May 1959 and 1 April 1961, the Court recorded that eighty‑eight candidates were appointed on 31 October 1961—eight days after an amendment to the Recruitment Rules gave them retrospective effect from 1 March 1958—as Probationary Assistant Engineers by direct recruitment. The validity of these appointments was later challenged before this Court. In the earlier decision of B. N. Nagarajan v. State of Mysore & Ors., reported in [1966] 3 S.C.R. p. 682, the Court held that although the appointments were made after the Recruitment Rules had come into force, they were nevertheless valid because the process of direct recruitment had been initiated by the State Government exercising its executive power under Article 162 of the Constitution of India.

In the year 1971 the State issued several orders that promoted some of the persons who had originally been recruited directly to the posts of Assistant Engineers, raising them to the rank of Executive Engineer; the promotees subsequently filed writ petitions asserting that these promotions had been effected “on a regular basis,” which in their view constituted substantive appointments and therefore entitled them to rank senior to the directly recruited officers. After the seniority list dated 4 September 1973 was issued, superseding the earlier list (G) that had been prepared on 28 September 1972, the promotees filed additional writ petitions challenging the new list. The High Court heard all of the petitions together and allowed them, directing that (i) the promotees who were not covered by direction (ii) and the directly recruited officers would not be subject to the quota system as envisaged in the Recruitment Rules; (ii) promotees who had been appointed to the posts of Assistant Engineer with effect from 1 March 1958 or any later date would be governed by the quota system contemplated by the Recruitment Rules; (iii) promotees who had been appointed as Assistant Engineers before 31 October 1961 would be deemed senior to the directly recruited officers whose appointments were made on that date; and (iv) the claim of each promotee to the next higher post should be considered effective from a day prior to the promotion of any officer who was junior to him. Upon allowing the appeals by special leave, the Supreme Court held that the scope of the writ petition was not confined merely to the question of promotion of Assistant Engineers to Executive Engineers, because the challenge to the seniority list dated 4 September 1973 formed an integral part of the promotees’ case. Although the promotees had not specifically prayed for the quashing or rectification of that seniority list, their entire contention rested on the allegation that they had been substantively promoted to the posts of Assistant Engineer before the directly recruited officers were appointed, that this gave them precedence in seniority and regular absorption into the Assistant Engineer cadre, and that consequently the promotion of directly recruited officers to Executive Engineer posts without taking the promotees’ claims into account was unlawful. The Court further held that no exception could be made in favour of the promotees to the High Court’s finding that the appointment of directly recruited officers to the posts of Assistant Engineer was proper in view of the earlier judgment of this Court in B N Nagarajan v. State of Mysore, and that it could not be plausibly argued by the directly recruited officers that the promotees’ appointments as Assistant Engineers before the Recruitment Rules came into force were beyond the Government’s authority or otherwise illegal.

In reaching its decision, the Court relied upon the earlier judgments of V. B. Badami and Others v. State of Mysore and Others, reported in [1976] 1 SCR 815, and B. N. Nagarajan v. State of Mysore and Others, reported in [1966] 3 SCR 682. A combined reading of Rule 2 of the Seniority Rules together with the definitions of “appointed on probation” and “Probationer” contained in Rule 2 of the Probation Rules makes it clear that the direct recruits were appointed as Assistant Engineers “substantively in clear vacancies,” as contemplated by clause (a) of Rule 2 of the Seniority Rules. If any of the promotees had also satisfied that requirement at any time before 31 October 1961, they would have been placed in the same category as the direct recruits under that clause, and their relative seniority would then have been governed by clause (b) of the same rule, which bases ranking on the respective dates of confirmation. Conversely, if none of the promotees can be said to have been appointed substantively in a clear vacancy, clause (a) would not apply to them and all direct recruits would rank senior to the promotees. In the present matter, the record shows that throughout the relevant period the promotees held their positions as Assistant Engineers only in a non‑substantive capacity, either on an officiating or a temporary basis. Accordingly, they must rank junior to the direct recruits, who from the outset occupied appointments made “substantively in clear vacancies.” The language of the first order dated 15 November 1958 (Exhibit A), which appointed the promotees as Assistant Engineers, makes it evident that the promotion of the 167 officers was not substantive; the order expressly described the tenure as “officiating” or “purely temporary” and stipulated that it was “subject to review after the finalisation of the inter se seniority list of supervisors and the Recruitment Rules,” terms that unmistakably run counter to a substantive appointment. Subsequent orders issued by the State Government up to 31 October 1961, when the direct recruits were appointed, did not alter the promotees’ status in any way. Those later orders were either silent on the nature of the tenure of the promotees or, in clear terms, affirmed that the promotees would continue to hold the Assistant Engineer posts on a temporary or officiating basis. Finally, the two notifications dated 27 February 1962 and the order exhibited as (D) dated 6 October 1962, whose combined effect was to promote the 107 officers as Assistant Engineers with effect from 1 November 1956 “on a regular basis,” do not convey a colour of permanence to the promotees’ appointments. Consequently, the appointments cannot be deemed substantive from 1 November 1956 for two principal reasons. First, the expressions “regular” or “regularisation” do not signify permanence; they are terms designed to condone procedural irregularities and to cure only such defects. Second, when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible under the executive powers of the Government under Article 162 if it contravenes those rules.

The Court observed that the defects stemmed from the method used to make the appointments, and that when rules created under Article 309 of the Constitution of India are operative, no regularisation may be carried out by exercising the executive powers granted under Article 162 in a manner that conflicts with those rules. It further noted that the regularisation order was issued long after the Probation Rules, the Seniority Rules and the Recruitment Rules had been promulgated, and therefore the order could not command something that would violate any provision of those rules. The Court explained that, if the regularisation in the present case were intended to give permanence to the appointments of the promotees as Assistant Engineers from 1 November 1956, such permanence would grant seniority to the promotees over the directly recruited engineers. This seniority would arise because, absent the regularisation, the Seniority Rules read together with the Probation Rules would place the direct recruits ahead of the promotees. Consequently, the promotees could also obtain priority in the allocation of vacancies under the Recruitment Rules. In other words, by describing the promotees’ appointments as permanent, the regularisation order would contradict the rules framed under Article 309 of the Constitution. The Court held that what the three sets of rules could not achieve was being attempted through an executive fiat, and such a course is impermissible because an act performed in the exercise of the Government’s executive power cannot override rules made under Article 309. The Court relied on the decisions in State of Mysore and Anr. v. S. V. Naraynaswami, [1967] 1 SCR 128 and R. N. Nanjundappa v. T. Thimmiah, [1972] 2 SCR 799, applying those authorities to the present facts.

The Court clarified three specific points. First, it stated that the order did not apply to officers who already held the post of Assistant Engineer on a substantive basis before 1 November 1956, the date on which the new State of Mysore, now Karnataka, came into existence, nor to any Assistant Engineer who had acquired substantive status before the Recruitment Rules were promulgated and before the direct recruits were appointed. Second, it directed that persons falling within those two categories must first be placed in any clear vacancies that exist, and only after that should the remaining vacancies be used to accommodate the direct recruits and the Assistant Engineers whose claims were contested in these proceedings. Third, the Court observed that the quota rule would not obstruct the Government from giving effect to this arrangement, which had been addressed in the amendment to the Recruitment Rules promulgated on 23 October 1961. The judgment then proceeded to note the civil appellate jurisdiction, identifying Civil Appeal No. 2329 of 1977 as an appeal by special leave from the Karnataka High Court judgment dated 30‑11‑1976 in W.P. No. 2307/71, and listed the series of related civil appeals numbered 2330‑2350/77, also filed by special leave against the same High Court order.

The matter before the Court concerned a group of special‑leave appeals numbered from 2351 through 2370 of the year 1977. Each of these appeals challenged the judgment and order dated 30‑November‑1976 delivered by a Division Bench of the Karnataka High Court in various writ petitions identified as W.P. Nos. 462‑467, 553‑560, 796, 943, 944, 1027 and 1033 of 1973. The appellant in civil appeal 2329/77 was represented by counsel P. Ram Reddy and S. S. Javali. Counsel F. S. Nariman, B. P. Singh and A. K. Srivastava appeared on behalf of the appellants in civil appeals numbered 2351‑2370/77. Further representation for the appellants in civil appeals ranging from 2330 to 2370/77 was provided by L. N. Sinha together with Narayan Nettar. In civil appeal 2329/77, attorneys A. K. Sen, Muralidhar Rao and P. R. Ramasesh acted for respondents numbered 2, 3, 5 and 7. The same P. R. Ramasesh also represented the respondents and promotees in civil appeals 2330‑2350/77 and the respondents in civil appeals 2352‑2370/77. Additionally, Y. S. Chitale, M. Muralidhar Rao, P. R. Ramasesh and S. S. Khanduja were counsel for the respondents in civil appeal 2351/77. The judgment in this case was delivered by Justice Koshal. In his pronouncement, Justice Koshal stated that the Court would dispose of a total of forty‑two special‑leave appeals, specifically civil appeals numbered from 2329 through 2370 of 1977, all of which were directed against the aforesaid High Court decision dated 30 November 1976. Among these, civil appeals 2329 and 2351‑2370 were instituted by individual persons who had been appointed as Assistant Engineers in the State of Karnataka on 31 October 1961 by means of direct recruitment, while the remaining twenty‑one appeals were filed by the State itself.

The factual background giving rise to the impugned judgment was set out in considerable detail. On 1 November 1956 a new State was created through the integration of territories that had previously formed part of the former States of Mysore, Madras, Coorg, Bombay and Hyderabad, the latter collectively referred to in the judgment as the “Merged States”. The newly formed entity initially bore the name of one of its constituent parts, namely the State of Mysore, and was subsequently renamed the State of Karnataka. Within the Public Works Departments of the Merged States there existed a class of non‑gazetted officers who ranked below Assistant Engineers. In the former State of Mysore this class was titled “Graduate Supervisors”, in the former State of Madras they were known as “Junior Engineers”, and in the former States of Hyderabad and Bombay they were designated simply as “Supervisors”. The Graduate Supervisors received a fixed monthly salary of Rs 225, which was Rs 25 less than the starting salary of an Assistant Engineer, whose normal duties included heading a sub‑division. Appointment to the post of Assistant Engineer could be attained by a Graduate Supervisor only through promotion. Prior to the 1 November 1956 merger, a number of Graduate Supervisors had been assigned charge of sub‑divisions and were given the designation of Sub‑Divisional Officers in order to meet service exigencies; they continued to function in that capacity after the merger and consequently claimed that their positions should be treated as equivalent to those of Assistant Engineers for the purposes of service integration. Initially, this claim was rejected by the Central Government, which equated the posts of Graduate Supervisors with the posts of Junior Engineers of the former State of Madras.

The discussion also covered the posts of Supervisors of the Merged States of Hyderabad and Bombay. By a notification dated 6 February 1958, the Government of Karnataka—then known as the Government of Mysore—issued the Mysore Government Servants (Probation) Rules, 1957, which the judgment refers to as the Probation Rules. The following day, on 7 February 1958, the same government brought into force the Mysore Government Servants (Seniority) Rules, 1957, hereinafter called the Seniority Rules. Both sets of rules were framed under the authority of Article 309 of the Constitution of India. Subsequently, on 1 October 1958, the Karnataka Public Service Commission advertised vacancies for the appointment of Assistant Engineers through direct recruitment, inviting applications from eligible candidates. During this period, Graduate Supervisors and other government employees holding comparable positions continued to press for the equivalence of their posts with those of Assistant Engineers. Their efforts achieved a partial success on 15 November 1958 when the Karnataka Government promoted 167 of these employees—among them 107 Graduate Supervisors who had been serving in the Merged State of Mysore—to the rank of officiating Assistant Engineers with immediate effect. The promotion was recorded in the State Gazette dated 20 November 1958 (Exhibit A). For ease of reference, the relevant portion of that Gazette was reproduced as follows: “The following supervisors of the Public Works Department are promoted as officiating Assistant Engineers with immediate effect and until further orders against the existing vacancies, subject to review after the finalisation of the Inter‑Se Seniority List of Supervisors and the Cadre and Recruitment Rules of the Public Works Department. The promotion of officers from Sl. No. 74 to 167 against existing vacancies will be purely on a temporary basis pending the filling up of the vacancies by direct recruitment as per rules. The seniority inter‑se of the promotees will be provisional according to the order given below.” In addition to these 167 promotions, a further 299 persons belonging to the same class were elevated to the posts of Assistant Engineers through eight separate notifications that were issued between 22 December 1958 and 13 October 1960. Later, on either 21 August 1960 or 31 August 1960 (the exact date is uncertain), the State Government issued an order concerning the 107 Graduate Supervisors from the Merged State of Mysore previously mentioned. That order directed that these officers be treated as Assistant Engineers and that they receive the pre‑revision pay scale of Rs 250‑25‑450 for the period from 1 November 1956 to 31 December 1956, followed by the revised pay scale of Rs 250‑25‑450‑30‑600 from 1 January 1957 onward. The same order also placed those 107 officers in the inter‑se seniority list immediately below the regular Assistant Engineers. Finally, on 3 December 1960, the Karnataka Government promulgated the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960, hereinafter referred to as the Recruitment Rules, again under the authority of Article 309 of the Constitution of India. Those Recruitment Rules provided that appointments to the rank of Assistant Engineer in the Public Works Department would be made by direct recruitment for forty per cent of the vacancies, while the remaining positions would be filled by promotion—specifically, fifty per cent from the cadre of Junior Engineers and ten per cent from the cadre of Supervisors.

The Recruitment Rules defined the Assistant Engineer cadre as comprising 344 permanent posts and 345 temporary posts, with recruitment drawn 40 per cent from direct recruitment, 50 per cent from promotion of the Junior Engineer cadre and 10 per cent from promotion of the Supervisors cadre. The Rules were subsequently amended on 23 October 1961 to operate retrospectively with effect from 1 March 1958. Following that amendment, on 31 October 1961, a total of 88 candidates were appointed as Probationary Assistant Engineers through direct recruitment.

Two notifications were issued by the State Government on 27 February 1962. Each notification promoted 231 Junior Engineers to the rank of Assistant Engineer with effect dated variously between 15 November 1958 and 10 November 1960. The first notification expressly stated that “the promotions are subject to review after finalisation of the inter‑seniority list of Junior Engineers.” The second notification clarified that the officers so named would be deemed to have been temporarily promoted, allowing them to continue officiating as Assistant Engineers on a provisional basis until further orders were issued.

The matter concerning the 107 officers previously mentioned was reconsidered by the State Government, which on 6 October 1962 issued a new order (Exhibit D) superseding the earlier order dated 31 August 1960. That order promoted the 107 officers to Assistant Engineers with retrospective effect from 1 November 1956. By 24 September 1966 the number of Probationary Assistant Engineers appointed through direct recruitment had declined to 85 for reasons that were not elaborated. On that same date, the State Government passed an order confirming that all of those direct recruits had satisfactorily completed their probationary period and were therefore absorbed against substantive vacancies with effect from 1 November 1962.

In 1971 a series of orders promoted several of the direct recruits to the post of Executive Engineer. Those promotions were challenged by the promotees to the Assistant Engineer posts in a writ petition filed on 15 September 1971. Subsequently, on 28 September 1972, the State Government prepared a seniority list (Exhibit G) of Assistant Engineers showing their inter‑seniority as of 1 November 1959; the promotees were satisfied with the seniority accorded in that list. However, that list was later replaced by another list dated 4 September 1973, which declared the inter‑seniority of all Assistant Engineers serving in the State Public Works Department as of 1 January 1973. The 1973 list was purported to have been prepared in conformity with the Recruitment Rules, and objections to it were invited and submitted by various officers. During the year 1973 additional writ petitions were instituted by the promotees challenging the promotion of direct recruits to Executive Engineer posts, raising two principal claims before the High Court, the first of which asserted that

In the writ proceedings the promotees asserted two principal claims. First, they contended that they had been regularly promoted to the rank of Assistant Engineer against substantive vacancies, with the promotion being given retrospective effect, and that this was proper. Second, they argued that for those among them whose promotion became effective on a date earlier than 1 March 1958, the provisions of the Recruitment Rules—particularly the quota rule—could not be applied to them adversely. The High Court accepted both submissions. The Court relied on the decision of this Court in Ram Prakash Khanna & others v. S. A. F. Abbas together with the pleadings of the parties and the various orders issued by the State Government to uphold the first claim. For the second claim the Court invoked the authority of this Court’s earlier judgment in V. B. Badami & others v. State of Mysore & others. Accordingly, the High Court held that the quota rule would not attach to the cases of those promotees who had been appointed Assistant Engineers with effect from a date prior to 1 March 1958.

The High Court further clarified that the promotion of the one‑hundred and seven officers who were serving in the Merged State of Mysore had been effected as substantive appointments to the post of Assistant Engineer with effect from 1 November 1956. The Court stated that neither the State Government nor the direct recruits could successfully argue otherwise. However, the Court added that such promotions could be subject to review only if the final inter‑se seniority list of Junior Engineers required it, noting that the right to review had been reserved by the Government in its orders dated 27 February 1962. Regarding the direct recruits, the High Court referred to the judgment in B. N. Nagarajan v. State of Mysore & others, in which it was held that although their appointments were made after the Recruitment Rules had come into force, the recruitment process had been initiated by the State Government under its executive powers under Article 162 of the Constitution of India before the Rules were promulgated. Consequently, those appointments were considered to be “outside the Recruitment Rules.” The High Court therefore concluded that the direct recruits were likewise not subject to the quota rule and could not be adversely affected by it.

Summarising its findings, the High Court issued several directions. First, it ordered that promotees other than those specifically identified in the second direction, as well as the direct recruits, would not be governed by the quota system envisaged in the Recruitment Rules. Second, it directed that promotees who were appointed to the post of Assistant Engineer with effect from 1 March 1958 or any later date would be subject to the quota system as laid down in the Recruitment Rules. Third, it held that promotees who had been appointed as Assistant Engineers before 31 October 1961 would rank senior to the direct recruits whose appointments were made on that date. Fourth, the Court addressed the individual claim of each promotee to the next higher post, indicating that such a claim should be considered with effect from a day prior to the promotion of any officer who was found junior to him.

The Court observed that when determining the date of promotion to the next higher post, the effective date must be fixed as one day before the date on which any officer junior to the appellant was promoted. The first issue addressed by the Court concerned an argument presented by counsel Mr. F. S. Nariman, who appeared on behalf of the direct recruits. Counsel Nariman contended that the writ petitions filed by the promotees were confined solely to the question of promoting Assistant Engineers to Executive Engineers. He further argued that the seniority list dated 4 September 1973 could not be questioned within those petitions. To support this contention, reference was made to the prayer clause in Writ Petition No. 462 of 1973, which read as follows: “In this writ petition, it is prayed that this Court may be pleased to: (1) quash the promotion of respondents 2 to 31 to the cadre of Executive Engineers made as per order dated 3‑2‑1973; (2) direct the respondent 1 to consider the case of the petitioner for promotion to the cadre of Executive Engineers with effect from 3‑2‑1973 on which date respondents 2 to 31 were promoted; and (3) pass an interim order, restraining the respondent 1 from making further promotion to the cadre of Executive Engineers without considering the case of the petitioner for such promotion, pending disposal of this writ petition.” It was assumed at the hearing of the appeals that similar prayers were contained in the other writ petitions. The Court noted that the promotees had not specifically prayed for the quashing or amendment of the seniority list dated 4 September 1973. Nevertheless, their case was founded on the claim that they were substantively appointed as Assistant Engineers before any direct recruit was appointed. They argued that, because of that earlier substantive appointment, they were entitled to seniority over the direct recruits and to regular absorption in the Assistant Engineer cadre. Accordingly, they maintained that promoting direct recruits to Executive Engineer positions without first considering the promotees’ claims violated the law. The Court concluded that the challenge to the seniority list formed an integral part of the promotees’ case and therefore could not be dismissed as outside the scope of the writ petitions. Consequently, the Court could not accept Mr. Nariman’s submission that the writ petitions were limited in the manner he described. The Court further held that no exception could be raised by the promotees against the High Court’s finding that the appointment of direct recruits to Assistant Engineer posts was proper, in light of the Supreme Court’s decision in B. N. Nagarajan v. State of Mysore. Likewise, the Court rejected any argument that the promotees’ appointments as Assistant Engineers before the Recruitment Rules came into force were beyond the Government’s authority or illegal. The judgment thereby affirmed that the appointments of both categories of officers were within legal bounds.

The real dispute between the direct recruits and the promotees concerned the nature of the tenure that the promotees enjoyed immediately before the Recruitment Rules came into force. This issue arose because of the wording of rule 2 of the Seniority Rules. The relevant portion of that rule reads as follows: “2. Subject to the provisions hereinafter contained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows: (a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post; (b) The seniority inter se of officers who are confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter se while officiating in the same post and if not, by their seniority inter se in the lower cadre; (c) Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail. Explanation....................................... (d)............” The language of this rule therefore forms the basis for deciding which group enjoys seniority over the other.

With respect to the direct recruits, they were appointed as Probationary Assistant Engineers, that is, Assistant Engineers “appointed on probation.” The term “appointed on probation” is defined in rule 2 of the Probation Rules, which states: “2. For the purpose of these rules – (1) ‘Appointed on Probation’ means appointed on trial in or against a substantive vacancy. (2) ‘Probationer’ means a Government servant appointed on probation. A Government servant so appointed (and continuing in service) remain a probationer until he is confirmed.” Because of these definitions, it follows that the direct recruits were appointed Assistant Engineers “substantively in clear vacancies” as contemplated by clause (a) of rule 2 of the Seniority Rules. Had any of the promotees also satisfied that condition at any time before 31 October 1961, they would have been placed in the same category as the direct recruits under clause (a), and their relative seniority would then be governed by clause (b), that is, by the dates of their respective confirmations. Conversely, if none of the promotees can be said to have been appointed substantively in a clear vacancy, clause (a) would not apply to them, and consequently all direct recruits would rank senior to the promotees. It is on the basis of these provisions that counsel for the State and the direct recruits have contested the High Court’s finding that the promotion of the 107 officers in the merged State of Mysore was to substantive Assistant Engineer posts effective 1 November 1956, and that the State Government or the direct recruits could therefore rely on that conclusion.

The dispute had to be examined in the context of the various orders issued by the State Government over time concerning the officers who had been promoted and others in a similar situation. The first order that appointed the promotees to the post of Assistant Engineer was dated 15 November 1958 (Exhibit A). That order expressly stated that all promotees covered by it were appointed as officiating Assistant Engineers and that they would continue in that capacity only until further orders were issued. The promotion was also made subject to review after the finalisation of the inter‑se seniority list of Supervisors and the applicable Recruitment Rules. The notification further clarified that for ninety‑four of the officers promoted under that order the appointment as Assistant Engineer was purely temporary, meaning that they would have to vacate the posts as soon as candidates became available through a direct recruitment process. The language of the order leaves no doubt that the promotion of the one‑hundred‑sixty‑seven officers was not substantive; the tenure was specifically described as either “officiating” or “purely temporary,” terms that clearly preclude a permanent appointment.

Subsequent orders issued by the State Government up to 31 October 1961, when the direct recruits were appointed Assistant Engineers, did not alter the status of any of the promotees in any material way. Those later orders were either silent on the question of whether the promotees held their positions on a substantive basis, or they explicitly stated that the promotees would hold the Assistant Engineer posts on a temporary or officiating basis. Because of this, counsel for the promotees, namely Dr Chitaley and Mr Sen, chiefly relied on two later notifications dated 27 February 1962 and on an order exhibited as D dated 6 October 1962. The combined effect of those two instruments, they argued, was to promote the one‑hundred‑seven officers as Assistant Engineers with effect from 1 November 1956 “on a regular basis.” They contended that the regularisation of the promotion gave it the colour of permanence and that, consequently, the appointments of the promotees as Assistant Engineers should be deemed substantive from 1 November 1956.

The Court found that argument untenable for two principal reasons. First, the terms “regular” or “regularisation” do not, by themselves, convey the notion of permanence. Those words are employed to remedy procedural irregularities and to cure defects that arise from the method by which the appointments were made; they are not intended to describe the nature of the tenure of the appointments. In this regard, the Court referred with advantage to the earlier decisions in State of Mysore and Another v S V Narayanappa and R N Nanjundappa v T Thimmiah and Another. In the former case the Court observed that the construction placed by the High Court on the provisions was erroneous because “regularisation” was taken to mean permanence, an interpretation the Court rejected. The Court explained that regularisation merely seeks to regularise the procedure, not to convert a temporary appointment into a permanent one. Similarly, in Nanjundappa’s case, the Court noted that both the respondent’s counsel and the State’s counsel had advanced flawed contentions: the respondent’s claim that regularisation conferred permanence and the State’s claim that regularisation was merely a matter of complying with the rules under Article 309. Both positions were dismissed, and the Court emphasized that an appointment that is irregular cannot be transformed into a permanent one merely by a subsequent declaration of regularisation.

In examining the order, the Court noted that before the High Court both parties had proceeded on the assumption that the term “regularisation” signified permanence. Because of that assumption, neither party had argued before the High Court that the order merely regularised the appointment without making it permanent, nor had they suggested that a permanent appointment would still require a separate confirmation. The Court observed that this shared assumption led the High Court to treat regularisation as equivalent to permanence. The Court then referred to the earlier decision in Nanjundappa’s case, where a similar issue of regularisation of an appointment had been considered. In that case, counsel for the respondent argued that regularisation conferred the quality of permanence on the appointment, while counsel for the State argued that regularisation merely concerned the application of the rules framed under Article 309 and did not create permanence. The Court rejected both submissions as untenable. It held that if an appointment itself violates the governing rules or the constitutional provisions, such illegality cannot be cured by regularisation. Regularisation or ratification is permissible only when the act in question falls within the authority’s power but is marred by procedural irregularities that do not affect the substantive validity of the appointment. The Court emphasized that regularisation is not a mode of recruitment; to treat it as such would introduce a new category of appointment contrary to the established rules. These observations also provided a second ground for rejecting the promotees’ argument. The Court explained that while rules made under Article 309 of the Constitution of India were in force, the executive cannot regularise appointments in violation of those rules under the executive powers granted by Article 162. The order of regularisation was issued long after the Probation Rules, Seniority Rules and Recruitment Rules had been promulgated, and therefore it could not impose a measure that conflicted with any of those provisions. If the present regularisation were to be interpreted as granting permanence from 1 November 1956, it would give the promotees seniority over direct recruits, a result that would contradict the Seniority Rules read with the Probation Rules and could also give the promotees priority for quota allocation under the Recruitment Rules. Consequently, the Court concluded that the regularisation order, by treating the promotees’ appointments as permanent Assistant Engineers, ran counter to the rules framed under Article 309, and that actions which were prohibited by those three sets of rules could not be accomplished merely by an executive fiat.

It was observed that granting the regularisation sought by the promotees would amount to an executive fiat, and that such a fiat could not be employed. The Court explained that an act performed under the executive power of the Government could not override rules that were framed pursuant to Article 309 of the Constitution. Consequently, for the reasons already indicated, the dispute was to be decided on the basis that, during the relevant period, the promotees had occupied the posts of Assistant Engineer only in a non‑substantive manner, either as officers officiating or as temporary appointees. Because of this status, each of the promotees was to be treated as junior to the direct recruits, who from the commencement of their service had been appointed “substantively in clear vacancies.” The Court further clarified that the present order would not apply to any officer who had been holding the post of Assistant Engineer on a substantive basis before 1 November 1956, the date on which the former State of Mysore became the State of Karnataka. Likewise, the order would not affect any Assistant Engineer who had already acquired substantive status before the Recruitment Rules were promulgated and before the direct recruits were appointed. Those officers who fell within either of these two categories were to be placed first in the clear vacancies that were available. Only after those vacancies were filled would the remaining vacancies be utilised for the direct recruits and for the Assistant Engineers whose claims were the subject of the present proceedings. The Court also noted that the existing quota rule would not prevent the Government from implementing the arrangement, because the amendment dated 23 October 1961 to the Recruitment Rules expressly provided for it. The relevant portion of the amendment, reproduced in item 3, added a proviso to rule 2, stating that for the first direct recruitment of Assistant Engineers under the rules, the percentages of direct recruitment and recruitment by promotion specified in column 2 of the Schedule would not apply, and that the minimum qualifications and period of production would be as prescribed. Both parties accepted that the cadre of Assistant Engineers created by the Recruitment Rules had not yet been filled for the first time, and therefore the proviso would fully govern the utilization of those vacancies. The Court affirmed that all questions of seniority would be resolved in accordance with the Seniority Rules, and that the Recruitment Rules, as amended from time to time, would be fully implemented from the date of their enforcement, namely 1 March 1958. In the result, the Court accepted the appeals, set aside the judgment of the High Court, and resolved the dispute in accordance with the observations recorded herein. The appeals were allowed.