V.S Deshpande, J.:— A question of first impression arises in this writ petition, namely, whether the availability of a suit in a civil court to the petitioner is “any other remedy” within, the meaning of clause (3) of Article 226 of the constitution and whether it is a bar to the entertainment of a writ petition under Article 226 for such relief as can alternatively be obtained by a suit. A Full Bench of five Judges of the Gujarat High Court in A'bad cotton Mfg. Co. Ltd. v. Union of India, AIR 1977 Gujarat 113 (1), has answered the question in the negative, but a Full Bench of the Andhra Pradesh High Court in The Government of India and others v. The National Tobacco Co. of India Ltd, AIR 1977 A.P 250 (2), has answered it in the affirmative. With great respect, a totally different approach to the question seems to be called for.
2. The contest in this writ petition is between the petitioner and respondents 3 and 4. All of them are Assistant Workshop Superintendents under the Delhi Administration. By the seniority list, dated 2nd March, 1976 issued by respondents 1 and 2, respondents 3 and 4 were shown as being senior to the petitioner. The petitioner claims that he is senior to respondents 3 and 4 or at any rate to respondent No. 4. One of the posts from which promotion is made to the post of Assistant Workshop Superintendent is that of a Foreman. Respondent No. 3 was appointed a Foreman on 1st August, 1964. On 8th October, 1964 the petitioner was appointed an Instructor in Engineering, a post claimed by him to be equivalent to the post of a Foreman. Respondent No. 4 was appointed Foreman on 2nd September, 1965. By memorandum, dated 21st January, 1967, the appointment of the petitioner as Foreman in which post he was already acting, was regularised with effect from 17th November, 1965. The recruitment to the post of Assistant Workshop Superintendent came to be governed later by Recruitment Rules, 1968, Sr. No. 2 column 2 of which stood as follows:
“ (i)
Junior Lecturer in Engineering
8
(ii)
Senior Drawing Instructor
4
15”
(iii)
Assistant W/shop Suptd.
3
“
Educational and other qualifications required for direct recruits were either a degree in Mechanical/Electrical/Civil Engineering with one year's professional or teaching experience or a Diploma in Electrical/Mechanical or Civil Engineering with five years professional or teaching experience. For promotion, a Foreman or an Instructor in Engineering with three years standing in the appropriate subject was eligible. The recruitment was to be 50 per cent by direct recruitment and 50 per cent by promotion failing which it was also by direct recruitment. Respondents 3 and 4 were appointed Assistant Workshop Superintendents by direct recruitment with effect from 22nd July, 1970. The petitioner was promoted as Assistant Workshop Superintendents from 19th August, 1971. The petitioner claims that according to the quota system which requires rotation of vacancies alternatively to be filled by one direct recruit and one promotee, the petitioner was entitled to be placed above respondents 3 and 4 in seniority even though he was appointed in point of time after them. One Mr. H.S Tayal had been appointed as a direct recruit Assistant Workshop Superintendent in 1964. If the next post was to go to a promotee, then the petitioner was to be placed above respondents 3 and 4, who were direct recruits. If the vacancy filled by Mr. H.S Tayal was to be left out of account, as no quota system and rotation of vacancies existed prior to 1968, then under the 1968 Rules, the first vacancy should go to a direct recruit respondent No. 3, and the second vacancy should go to a promotee, the petitioner, who was, therefore, at any rate entitled to rank in seniority above respondent No. 4, who was a direct recruit.
3. The defence of respondents 3 and 4 was two-fold. Firstly, the petitioner was not validly appointed as a Foreman and he was not, therefore, entitled to be promoted to the post of Assistant Workshop Superintendent at all. Secondly, the quota system and rotation of vacancies was to be observed not separately for the posts of Assistant Workshop Superintendents, which were three in the beginning, but became five when the parties were appointed to these posts, but for the total number of vacancies of Junior Lecturer in Engineering, Senior Drawing Instructor and Assistant Workshop Superintendent, the total number of which was originally 15 but was increased when the posts of Assistant Workshop Superintendents was increased from three to five and then to six. According to that arrangement, the overall proportion of direct recruits and promotees for the total number of vacancies of all these three posts combined was to be maintained half and half and it was not necessary that after one post of Assistant Workshop Superintendent was filled by direct recruit the next post must go to a promotee.
4. ARTICLE 226 OF THE CONSTITUTION:
Before discussing the merits of the case, however, the important preliminary objection raised by the respondents and referred to above beginning of the judgment is to be considered. The respondents contended that in view of clause (3) of the amended Article 226 of the Constitution, the remedy of a suit was available to the petitioner and the writ petition cannot, therefore, be entertained by this court under Article 226. This contention goes to the root of the case and must be firstly disposed of before the merits of the case can be considered. It raises a very important question of the construction of clause (3) of Article 226, which has not yet been apparently resolved because two Full Benches have arrived at two different conclusions about it as pointed out above. Let us, therefore, consider the question with a more basic approach.
5. Prior to insertion of clause (3) in Article 226 by the Constitution 42nd Amendment Act, 1976, Article 226 did not impose any restriction on this court in entertaining writ petitions. The scope of Article 226 was taken to be the same as the scope of the power of the Court of Kings Bench in England in issuing writs in the nature of certiorari, mandamus, etc. The jurisdiction to issue these writs was discretionary and, therefore, the courts in England, as in India, usually declined to entertain a writ petition if the relief sought therein was obtainable by an alternative remedy. Since the High Court of judicature in England was the sole court which has entertained petitions for the issue of these writs as also suits, no question ever arose there as to whether a petition for the issue of a writ could not be entertained on the ground that a suit for the same could be filed. Though, in India, only a few High Courts have original jurisdiction and that too only in the higher pecuniary range, most of the suits in India are instituted in the subordinate and the District Courts. If the High Courts in India had ever regarded the filing of the suit as ail alternative remedy at the very inception of the Constitution the question would have been raised that all or most of the writ petition under Article 226 would be barred because in almost every case the petitioner could have filed the suit for obtaining the same relief. I am not aware, however, of any High Court or the Supreme Court being of the view that any writ petition under Article 226 was barred because the petitioner could have got the same relief by filing a suit in a District or subordinate court.
6. The view universally taken was that the jurisdiction of civil courts was wider and the suits could be filed therein as of right. On the other hand, the jurisdiction of the High Courts under Article 226 was more restricted and discretionary. The High Courts could refuse to entertain a writ petition if a statutory alternative remedy as distinct from the remedy of a suit was available to the petitioner or on other grounds such as the petition involving a disputed question of fact or necessity of taking of oral evidence or that the petitioner was guilty of waiver, laches or some other conduct which disentitles him from seeking the extraordinary relief.
7. The question arose for the first time if the words “any other remedy” in clause (3) of Article 226 included the remedy by way of suit after the Constitution (42nd Amendment) Act, 1976. In resolving the question, the material reasoning should, in my opinion, be as follows:
(1) All civil reliefs obtainable by writs under Article 226 could be obtained by a suit prior to the commencement of the Constitution. The relief of habeascorpus was also obtainable under section 491 of the old Criminal Procedure Code.
(2) The reason why the High Courts were empowered directly to entertain writ petitions for the grant of these very reliefs must be first understood. The raison d'etre of the Constitution was to strengthen the position of the subject as against the State. Suits had to be instituted in the court of the lowest jurisdiction whose decisions were subject to appeals and revisions and the litigation was notoriously protracted, delay defeating justice. Hence, the legal right of a subject against the state was picked up for special treatment. The subject was given the right of filing the writ petition directly in the High. Court for relief against the State and other public authorities. The aim was to give expeditiously reliefs from the superior courts because of the importance of the liberty of the subject and the otherwise weak position of an individual, pitted against the Government. All this was done with full knowledge that those reliefs could be obtained from the subordinate courts. This intention of Article 226 was so obvious that it was never seriously argued prior to insertion of clause (3) in Article 226 that a suit could ever be treated as an alternative remedy.
(3) Grounds for awarding certiorari and prohibition, according to Prof. S.A De Smith in ‘Judicial Reviews of Administrative Action’ Third Edition, pages 249 to 263, are (a) lack of Jurisdiction, (b) breach of the Rules of Natural Justice, (c) Error of law on the Face of the Record, and (d) Fraud or Collusion. Initially, lack of jurisdiction was considered at the inception only. Once the jurisdiction was legally assumed any error in its exercise was an error within jurisdiction not amounting to lack of jurisdiction. Later, however, judicial decisions, such as Ridge v. Baldwn (1964) A.C 40 (3), and Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 A.C 147 (4), broadened the concept of jurisdiction to include error committed after initial assumption of jurisdiction. Similarly, the concept of error apparent on the face of the record was broadened to include any such error as would appear to be apparent to the particular Judge or Judges deciding a particular case.
(4) This development tended to obscure the basic distinction between a direct remedy and a collateral remedy against administrative and quasi-judicial action (so ably brought out by Dr. Rubinstain in his book on “Jurisdiction and illegality”). The remedy of a statutory appeal or a revision is a direct and vertical remedy. It is a rehearing in which the merits of the impugned decision can be considered, but a suit and a writ petition attacking the validity of a decision are collateral attacks on it. They consider not the merits, but only the validity or legality of the decision. The difficulty of distinguishing lack of jurisdiction and errors apparent on the lace of the record from mere errors of law tended to result in courts being persuaded under Article 226 to entertain writ petitions which sought to impugn orders which were wrong, but could not always said to be without jurisdiction or disclosing an error of law apparent on the face of the record. The result was that the statutory remedies of appeals and revisions were by passed and the dockets of High Courts were flooded with writ petitions. The necessity of judicial self-restraint and a stricter insistance of many of the writ petitioners being compelled to avail themselves of alternative statutory remedies was obvious (see Gee Vee Enterprise…Petitioner v. Additional Commissioner Of Income Tax…, Indian Law Reports (1975), Delhi 53) (5). But judicial self-restraint alone could not stem the tide of writ petitions.
(5) This was why at statutory restriction by the insertion of clause (3) in Article 226 replaces what was formerly a judicial self-restraint based on discretion exercised by the courts in each case. The sole intention was to divert writ petitioners to statutory remedies of appeals and revisions when available, before going to the High Courts under Article 226. This was made clear by the Minister for Law & Justice in his speech in Parliament while explaining the purpose of this particular amendment (quoted in paragraph 11 of AIR 1977 Gujarat 113 Supra).
(6) Had it been the intention of the amendment to include a suit within the meaning of the words “any other remedy” in clause (3). Articles 226 itself or at any rate sub-clauses (b) and (c) of chaise (1) thereof would have been repealed. For, collateral attack on a decision would have been always competent by way of a suit and no occasion would have arisen to file a writ petition at all under any of the sub-clauses (a), (b) and (c) of clause (1) of Article 226. It is true that some statutes contain provisions to bar a suit to attack the legality of a decision or order made under the said statute. But such decision or order must be within jurisdiction. Then only a suit against them would be barred. If they are without jurisdiction, then they would not be under the statute and a suit to set aside them would not be barred (see Dhulabhai and others v. The State of Madhya Pradesh and another, (1968) 3 S.C.R 662 (6).
(7) It is a well established rule of interpretation of statute that a proviso cannot be so construed as to eat away the rule to which it is a proviso. For instance, the rule of non-discrimination embodied in Articles 15 (1) and 16 (1) was held not to have been abrogated by insertion of Article 15 (4) and 16 (4) by amendment of the Constitution. If the authority given by Articles 15 (4) and 16 (4) for making exceptions to the rule of equality of opportunity embodied in Articles 15 (1) and 16 (1) was given unlimited effect, then the exceptions and the reservations would do away with the rule altogether. A total inequality in favour of those who are protected would be brought about in place of equality of opportunity. On an exhaustive survey of case law, the Supreme Court held that Articles 15 (4) and 16 (4) could not be construed to undo the rule of equality established by Articles 15 (1) and 16 (1) (see T. Devadasan v. The Union of India and another, (1964) 4 S.C.R 680 at 689, 693 and 695 (7). On the same principle clause (3) must be given its limited meaning of referring only to those remedies which are given by the statute the order or action under which is the subject of challenge. I repeatedly put to the learned counsel for the respondents to point out any case in which the relief given by Article 226 cannot be obtained by filing a suit. But the learned counsel were unable to point out any. The argument that suit is one of the remedies envisaged by clause (3) would make a dead letter of sub-clauses (b) and (c) of Article 226 (2). The proviso by way of clause (3) would wipe out the substantive rule embodied in sub-clauses (b) and (c). Such interpretation cannot, therefore, be accepted.
(8) While the suit may be an ordinary remedy for one person against another to prove and establish his right, it can be only a collateral remedy when an administrative or quasi-judicial decision by the Government or a public authority is attacked. When used as an ordinary remedy, the merits of the case are decided in a suit. When used as a collateral remedy, only the validity or legality of the decision is decided, but not the merits. It is in its latter capacity that a suit overlaps the scope of the judicial remedies available under Article 226. A suit not only overlaps the scope and jurisdiction of Article 226, but extends further to the taking of evidence for deciding questions of jurisdiction of fact also as distinct from law. Since the scope of a proviso cannot be the same as that of the rule, or wider than that of a rule, a suit is not included in clause (3) by the words “any other remedy”.
(9) I have thought fit to develop the above argument, since it does not find place in either of the two above conflicting decisions. The preliminary objection to the maintainability of the writ petition, therefore, fails.
8. Merits of the Case
The basic question is the interpretation of Sr. No. 2 Column 2 of the Recruitment Rules of 1968. Is the quota system and rotation of vacancy to be applied to the totality of posts or separately to the posts of Assistant Workshop Superintendents? All the arguments are in favour of the letter. They are as follows:
1. On the record, we have separate seniority lists dated 23-3-1968 and 2-3-1976 for different posts which are clubbed together with the posts of Assistant Workshop Superintendents and the seniority of persons holding the post of Assistant Workshop Superintendents is shown separately from the seniority of persons holding the other posts which are clubbed with the post of Assistant Workshop Superintendents. If the seniority list of Assistant Workshop Superintendent was kept separate for such a long period, the inference is irresistible that under the Recruitment Rules of 1968 as also of 1971 the seniority of persons holding these posts was intended to be kept separate.
2. While a common serial number, namely 2, is given to the three posts of junior Lecturer in Engineering, senior Drawing Instructor and Assistant Workshop Superintendent and the total number of these posts is shown as 15, each of the three posts has been given a sub-number as (i), (ii) and (iii) and against each of them separate vacancies are shown. It is shown that 8+4+3 = 15. While the petitioner argues that the intention was to apply the quota system to the Assistant Workshop Superintendent separately, that is to the three posts which later became 5, the respondents contend that the intention was to apply the same together with all the 15 posts.
3. The contention of the petitioner is supported by the entry in column 12 regarding promotion. It expressly states that the promotion is to be made to these posts from persons holding certain posts in certain scale of pay with three years standing in the grade in the appropriate subject. The reason for the words “in the appropriate subject” was that the posts of Assistant Workshop Superintendent can be filled only by a person having experience of work in the appropriate subject of mechanical engineering. This is why, though, in column 8 Mechanical, Electrical and Civil Engineering qualifications are all recognised, these qualifications are alternative and not cumulative. Otherwise, the words “in the appropriate subject” would have been meaningless. They show that only Mechanical Engineering qualification and experience would be suitable for the post of Assistant Workshop Superintendent.
4. The Departmental Promotion Committee, which met from time to time for promoting persons to the Posts of Assistant Workshop Superintendents has taken the same view emphasising the words “in the appropriate subject” embodied in the Recruitment Rules of 1968. The proceedings of the four Departmental Promotion Committee are Annexures RX-1 to RX-4. In Annexure RX-1, the Departmental Promotion Committee emphasises the word “in the appropriate subject”. It was not called upon to fill in post of Assistant Workshop Superintendent. But even for the other posts they have taken the qualification and experience in the particular subject only into consideration and disqualified some who did not possess the same. In RX-2 also the Departmental Promotion Committee repeats the words of Recruitment Rules of 1968 “in the appropriate subject” and deals with two posts of Assistant Workshop Superintendents, which were vacant. It expressly makes the reference to the Director of Technical Education to confirm that the posts of Assistant workshop Superintendents are to be filled only by diploma holders in Mechanical Engineering. This reference was answered in the affirmative by the Director of Technical Education, who held that the diploma holders in Civil and Electrical Engineering will not be suitable for appointment as Assistant workshop superintendents and only diploma holders in Mechanical Engineering will be suitable for promotion to this post. In Annexure RX-3 also two posts of Assistant workshop Superintendents were considered for being filled. Again it was stated “though the recruitment rules have specified qualifications in Elect./Mech./Civil Engg., and since the Asst. W/Shop Supdt. has to look after the Mech. Engg. W/Shop for this post, we have to consider only degree holders and diploma holders in Mech. Engineering.” Thus, eliminating the Civil Engineers and Electrical Engineers, we are left with (then follows the names). The approval of the appointment of Shri K.S Narula and Shri P.C Singhal was ad hoc. The Departmental Promotion Committee did not make any regular appointment. The reason for making these two ad hoc appointments was simply to see that the students should not suffer. It is well established that an ad hoc appointment is made without considering the claims of other persons to the posts. They do not, therefore, prejudice such other claims. Secondly, the question of seniority arises only with regard to persons holding regular appointments. Those holding ad hoc appointments are in a different category and they cannot figure in the seniority list as their appointments are not regular and are not at par with the appointments of other persons in the seniority list. Thirdly, the period during which a person holds an ad hoc appointment is normally not counted for seniority (see Ramesh Chander v. Delhi Electric Supply Undertaking, etc. ILR (1970) 1 Delhi 310 (8). and Tejpal and others v. Municipal Corporation of Delhi, 1971 S.L.R page 552 (9). In the Full Bench decision of this court in Udham Dadhwani, etc. v. U.P.S.C & others, CW 556 of 1971, decided on 29th September, 1977 (10), the Corporation held out promises to certain persons that even though they had been appointed ad hoc, they would be considered for regularisation and for being absorbed regularly in the posts to which they were appointed. It is for that reason that the Full Bench left it to the Corporation to consider whether the period spent by them in holding the ad hoc appointments should be taken into account in calculating their seniority. The facts of the present case are distinguishable. No such promises were held out to Shri Narula and Shri Singhal. On the contrary, the Departmental Promotion Committee was opposed to making of regular appointments and expressly made these two appointments ad hoc. These persons were not, therefore, entitled to be included in any seniority list. Lastly, Rule 7 of the seniority rules applies only to holders of regular appointments. The learned counsel for the respondents argued that the words “if for any reason a direct recruit or a promotee ceases to hold the appointment in the grade, the seniority list shall not be re-arranged merely for the purpose of ensuring the proportion concerned” applied to the appointments of Shri Narula and Shri Singhal. They further argued that after the posts were vacated by Shri Narula and Shri Singhal, the seniority list could not be re-arranged for the benefit of the petitioner. This argument cannot be applied to ad hoe appointments. It cannot be said that they ceased to hold the appointments for any reason in the grade. On the contrary, they were not meant to hold the appointments except temporarily and their appointments were subject to the claims of other persons. The claim of the petitioner, therefore, cannot be prejudiced by the appointments.
5. In Annexure RX-4, it is made clear that while according to the Recruitment Rules, Civil Engineers/Electrical Engineers and Mechanical Engineers are equally eligible for the post of Assistant Workshop Superintendents, the nature of duties require a person with Mechanical Engineering qualifications. It was recommended, therefore, that the point be examined in consultation with the Services Department. The Departmental Promotion Committee observes, “In view of the above reasons, it was decided not to make a regular selection, but in the interest of the students, it was decided to recommend and prepare a panel of three suitable persons for ad hoc promotion. Since the persons above Sl. No. 23 are either already holding higher posts or are not eligible for promotion because they do not possess the prescribed qualifications, the following 3 next senior-most candidates appearing at Serial No. 23, 24 and 28 of Appendix were found suitable after consideration of their C. Rs., qualifications, etc. The persons appearing at S. No. 25, 21 and 27 were not considered suitable as they did not possess the prescribed qualifications:—
1. Shri K.S Narula, Demonstrator (S. No. 23).
2. Shri P.C Singhal, Demonstrator (S. No. 24).
3. Shri B.D Arora, Demonstrator (S. No. 28) “.
9. It was argued for the respondents that the Departmental Promotion Committee thought that there was a common seniority for all the posts included in Sr. No. 2. This argument cannot be accepted. While the Departmental Promotion Committee was in difficulty and on one view the seniority could be regarded as a common, they did not yield to that view and treated the seniority of the Assistant workshop Superintendents as separate emphasising the words “in the appropriate subject” In recruiting persons to that post. The Departmental Promotion Committee actually recommended that the Recruitment Rules should be amended so that only a person holding qualifications and experience in Mechanical Engineering should be appointed as an Assistant Workshop Superintendent. This recommendation was put into effect when new Recruitment Rules were framed in 1971. But, even before the amendment of the Rules in 1971, the interpretation of the 1968 Rules by the succeeding Departmental Promotion Committees and by me above, shows that the seniority of Assistant Workshop Superintendents was to be separate. It is only because the number of vacancies in the three kinds of posts was shown separately and also jointly in column 2 of the 1968 Recruitment Rules that some doubt was created and it was to remove this doubt that 1971 amendment was made. The quota system and rotation of vacancy was, therefore, to be applied to the posts of Assistant Workshop Superintendents separately. The result is as follows:
1. Shri H.S Tayal having been appointed before the 1968 Rules is to be left out.
2. The first vacancy after the framing of the 1968 Rules goes to Shri R.K Bhatnagar, respondent No. 3 as a direct recruit.
3. The second vacancy belongs to a promotee and must go to the petitioner. It cannot be occupied by respondent No. 4 who is a direct recruit.
4. The third vacancy, therefore, has to go to respondent No. 4.
The petitioner, thus, becomes senior to respondent No. 4 but not to respondent No. 3.
10. It was argued that as Foremen, respondents 3 and 4 were senior to the petitioner. This is disputed by the petitioner, who accounts his service as an Instructor in Engineering as being equivalent to the service of a Foreman. That apart, the seniority in the lower grade is not material in giving effect to the quota system in the grade of Assistant Workshop Superintendents. Since, respondent No. 4 has come to occupy that post as a direct recruit, he cannot take the second vacancy immediately after Shri Bhatnagar, but must yield it to the petitioner, Shri R.K Gupta.
11. The objection that the petitioner was not validly appointed as a Foreman in 1967 taken by the respondents in defending this writ petition in 1977 is too late. Even if the respondents had chosen to file a writ petition to get the appointment of the petitioner quashed, such a writ petition would have been dismissed as unduly delayed. It is not permissible for the court now to look into the validity of the appointment of the petitioner as a Foreman ten years ago.
12. For the above reasons, the writ petition succeeds. It is directed that the seniority list of the Assistant Workshop Superintendents be corrected and the petitioner Shri R.K Gupta, should be shown immediately below shri R.K Bhatnagar, respondent No. 3, and immediately above Shri H.P Goel, respondent No. 4. There will be no order as to costs.
13. Today before the delivery of judgment Shri B.N Kirpal for the petitioner, drew my attention to the second relief claimed by the petitioner, viz. quashing the orders of transfer of the petitioner contained in the office order dated 22-2-1977 and 31-3-1977. Shri Budhiraja says that this point was not argued, but Shri Kirpal maintains that it was the very first argument he had made. However, the matter is only consequential on the decision which has already been arrived at. In view of the decision arrived at above, respondents 1 and 2 may consider in the light of what they have stated in paragraphs 16 and 17 of their reply dated 2-5-1977, namely, that the transfer of the petitioner was due to the fact that he was the juniormost along with K.C Choudhry. Since as a result of the above decision he would not be the juniormost, but will take his place between Shri Bhatnagar and Shri Goel, respondents 1 and 2 may consider if the orders of transfer of the petitioner should be revised.
Petition allowed.