I.S Tiwana, J.:— On an agreement between the learned Counsel for the parties, this set of eight Civil Writ Petitions Nos. 1529, 1503, 1705, 2091, 2228, 2494 of 1981, 1836 of 1982 and 185 of 1983, is being disposed of through this common order primarily on account of the identity of facts and the contentions raised therein.

2. Petitioners claim to have been appointed to the Haryana Service of Engineers Class II, Public Works Department (Irrigation Branch) by way of direct recruitment. They impugn the action of the State Government in terminating their services to accommodate some other direct recruits on the ground that their termination would be in violation of the quote rule (Rule 6) of the above said rules as according to them they are well within their quota. Their claim further is that to terminate the services of the direct recruits like them and to retain other Assistant Engineers belonging to different categories in excess of their quota amounts to arbitrariness also.

3. As against this, the stand of the respondent authorities is that firstly, the petitioners are not members of the service and thus the above noted rules do not govern their case and secondly; they are only ad hoc appointees and cannot claim to have acquired any right to the posts to which they had been appointed. Further it is the case of these authorities that other categories of persons specified in Rule 6 above are also not in excess of their quota in the service and thus the stand of the petitioners that other categories of Assistant Engineers are being retained in excess of their quota while they are being terminated, is also not factually correct.

4. In order to resolve the controversy noted above, I vide my order dated July 10, 1984, directed the respondent authorities to file an affidavit specifying the number of cadre and ex-cadre posts of Assistant Engineers available and, to give the details of the appointees manning those posts quotawise as specified in Rule 6 referred to above. In response to this direction Mr. K.B Vig, Engineer-in-Chief, Haryana Irrigation Department, has filed his affidavit in which this factual position is explained in the following manner:—

“That the information directed by the Hon'ble Court to be furnished is submitted as under:—

(i) Total number of cadre/ex-cadre posts in Irrigation Department, Haryana. …504 Page: 417(ii) No. of posts (out of 504 cadre and ex-cadre) in the Irrigation Department Haryana falling to the share of each category mentioned in: (a) Direct appointment (65%) 328 App. (b) Promotion from the members of the Haryana Public Works Department Irrigation Branch Overseers (Engineering) Service percentage of Civil and Mechanical members shall be 16% and 4% respectively (20%). 101 App. (c) Promotion from draftsman members of Circle Head Draftsman and Tracers Service (5%) 25 App. (d) Promotion from members of the Haryana Public Works Deptt. (Irrigation Branch) Overseers (Engineer) Service and the Draftsman and Tracers Service possessing qualifications prescribed in Appendix B (10%) 50 App. Total 5 504 (iii) Total number of persons (categories wise) recruited from all the four sources mentioned in Rule 6(1) of the rules = 728 (a) Direct appointment =325 (b) Promotion from the members of the (Haryana Public Works Deptt. Irrigation Branch). Oversees (Engineering) Service = 300 (c) Promotion from draftsman members of the Draftsman and Tracers Service = 61 (d) Promotion from the members of the Haryana Public Works Deptt. (Irrigation Branch) Overseers (Engineer) Service and the Draftsmen and Tracers Service possessing qualifications prescribed in Appendix B = 42 Total 728 (iv) No of persons (like the petitioner) appointed on ad hoc basis as Assistant Engineers on the terms and conditions mentioned in their appointment letters (who are in addition to the aforesaid 728 persons). = 34 Page: 418(v) No. of persons (out of 728 mentioned at Sr. No. (iii above) posted outside the Irrigation Department Haryana on Deputation/on leave etc. = 227 (a) Beas Project/BSL/BBMB = 70 (b) Haryana State Minor Irrigation Tubewells Corporation = 134 (c) Leave = 10 (d) On deputation (other than those at Sr. No. (a) and (b) above = 13 Total:— 227 (vi) No. of persons in the Irrigation Department Haryana (including those on leave as at v(c) above and appointed on ad hoc basis like the petitioner) against 504 cadre/ex-cadre posts. = 535 (a) No. of persons recruited from all the four sources mentioned in rule 6(1) of the rules. = 501 (b) On leave as per v(c) above. = 10 (c) No. of persons (like the petitioner) appointed on ad hoc basis as per terms and conditions mentioned in their appointment letters.— = 24 Total:— 535 (vii) No. of persons of each category (out of 511 including 10 persons on leave) from source No. 1 to 4 in Irrigation Department Haryana; (a) Direct appointment as per rules through H.P.S.C = 2466 (b) Promoted from the members of the Haryana Public Works Deptt.(Irrigation Branch)Overseers (Engineering) Service. = 191 (c) Promoted from draftsmen members of the Draftsmen and Tracers Service. = 40 (d) Promoted from members of the Haryana Public Works Deptt.(Irrigation Branch) Overseers (Engineering) Service and the Draftsmen members of the Draftsmen and Tracers Services possessing Page: 419qualifications prescribed in Appendix 8. = 34 Total:— 511

5. Having heard the learned counsel for the parties in the light of their pleadings and the above noted factual position, I find that the stand of the respondent authorities can neither be justified nor sustained.

6. So far as the question as to whether the petitioners were appointed to the service and the rules referred to above govern their case is concerned, the following provisions of the said rules deserve to be taken notice of:—

“(2) Definitions:— In these rules, unless the context otherwise require:—

(2) ‘Appointment of the service’ includes an appointment made according to the terms. and conditions of these rules to an officiating vacancy or an ex-cadre post: Provided that an officer so appointed shall not be deemed to have become a member of the service as defined in clause (12);

… … … …

(4) ‘Cadre post’ means a permanent post in the Service;

(9) ‘Direct appointment’ means an appointment by open competition but does not include—

(a) an appointment made by promotion; and

(b) an appointment by transfer of an officer already in service of a State Government or of the Government of India;

Explanation:— A member of the Haryana Public Works Department (Irrigation Branch) Overseers Engineering) Service or a member of the Irrigation Branch Draftsman and Tracers Service, who enters the Service by open competitive selection on shall, for the purpose of these rules, be deemed to have entered the Service by direct appointment.

(10) ‘ex-cadre post’ means a temporary post of the same rank as a cadre post.

(15) ‘Service’ means the Haryana Service of Engineers Class II, Public Works

Department (Irrigation Branch).

7. It is abundantly clear from the above noted provisions that the service includes ‘cadre’ as well as ‘ex-cadre’ or temporary posts of Assistant Engineers. As per these provisions, direct appointment means an appointment made by way of open competition or in a manner other wise than by way of promotion or transfer. Though in their written statement the respondent authorities have nowhere pleaded as to whether the petitioners were appointed against temporary or permanent posts of Assistant Engineers but it is now the firm stand of the learned State counsel that the petitioners were appointed against temporary posts on ad hoc basis. Be that as it may, as per clause (2) even an appointment against a temporary or an ex-cadre post is to be taken as an appointment to the service. In the face of these clearcut provisions it is difficult to understand and accept the contention of the State authorities that the petitioners have never been appointed to the service.

8. So far as the stand of the respondent authorities about the nature of petitioners appointments on ad hoc basis and thus having not acquired any right to the posts manned by them is concerned, they may well be right in saying in the light of the Full Bench judgment of this Court in S.K Verma v. State of Punjab, that they have not acquired any right to the posts held by them, yet the challenge on behalf of the petitioners, as already indicated in the opening part of the judgment, is that the action of the respondent authorities in retaining person belonging to categories other than direct recruits against the quota of direct recruits is arbitrary and thus violative of Article 16 of the Constitution of India. In order to sustain his contention that the promotee Assistant Engineers are not holding any of the posts meant for direct recruits or that the direct recruits like the petitioners are not within their quota, the learned counsel for these authorities points out that there are only 504 cadre/ex-cadre posts of Assistant Engineers in the Haryana Irrigation Department and out of these only 328 posts can be manned by direct recruits. It is alleged in the light of the affidavit of Mr. Vig, referred to above, that out of 328 posts meant for direct appointees, 325 are already being manned by them and thus there is no violation of Rule 6 of the Page: 421rules. A bare perusal of the above referred to affidavit of Mr. Vig makes it more than clear that while advancing the above noted argument, the learned counsel is not taking into account 227 posts which are manned by the members of the service on deputation. The break-up of these 227 posts is mentioned in sub-para (v) of the affidavit. I see no justification in not counting or taking into account these posts while considering the question of implementation of Rule 6 of the rules which lay down the quota meant for various sources for appointment to the service, particularly when it is not in dispute and is rather conceded that the earliest deputationist against one of these posts is of the year 1971. It is also not disputed on behalf of the respondent authorities that the number of these deputation posts has at no stage gone down since then and only the persons on deputation were kept on rotating. In the light of this admitted factual position it is difficult to understand as to why the 227 posts which are manned by the members of the service, though on deputation, have not to be counted while working out or implementing the quota rule laying down the quota meant for different sources for appointment to the service. In somewhat similar situation, their Lordships of the Supreme court in their latest pronouncement in P.S Mahal v. Union of India, have made the following meaningful observations:—

If a vacancy arises on account of an incumbent going on leave or for training or on deputation for a short period, it would be a fortuitious or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy. But where a vacancy arises on account of the incumbent going on deputation for a 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 the quota rule irrespective of the fact that whether any other officer is having a lien on that post, because it would be a regular vacancy in the post of Executive Engineer and the person promoted to fill the vacancy would be an officiating executive Engineer who would continue as such without reversion until confirmed and his promotion would, therefore, be by way of recruitment to the cadre of Executive Engineers. In this connection, it cannot be said that promotion to the post of Executive Engineer contemplated under the Rules can be made only when there is no lien of any officer on that post Page: 422because promotion according to the quota rule is initial promotion in an officiating capacity and not concerned with confirmation. It is true that a confirmed executive Engineer who goes on deputation may revert to the post on which he had a lien and so also an officiating Executive Engineer who goes on deputation may revert back on termination of his deputation and theoretically, in either case an Assistant Engineer who is promoted to fill the vacancy arising on account of deputation or Assistant Executive Engineer may have to revert, but in actual practice and reality, not a single Assistant Engineer or Assistant Executive Engineer promoted as Executive Engineer to fill a vacancy arising on account of deputation, has had to revert, because deputation is a normal feature in this service and 20 to 25 per cent of the Executive Engineers are continuously on deputation. Even if one Executive Engineer comes back on termination of his deputation, another has to be sent in his place and the deputations thus go on rotating with the result that the vacancy in the post of Executive Engineer arising on account of deputation does not cease and the Assistant Engineer or Assistant Executive Engineer promoted as Executive Engineer to fill the vacancy does not ever have to revert and consequently, the vacancy filled by him is really and truly a permanent or long term vacancy which has to be filled according to the quota rule. In fact, if the quota rule were not to be applied with reference to such a vacancy, the position would be that whenever an Executive Engineer goes on deputation for a period which may extend to anything between three to five years, the Central Government weould be entitled to promote an Assistant Engineer ignoring the claims of Assistant Executive Engineers and this would be totally arbitrary in a situtation, where 20 to 25 per cent of executive Engineers are on deputation. For this purpose the vacancies in the posts of Executive Engineers arising on account of deputation of Executive Engineers to other departments organisations and public undertakings for a period of one or more years were long term vacancies and this could not be regarded as fortuitous or adventitious in character and hence they were subject to the quota rule.”

9. In the light of this authoritative pronouncement, the Page: 423stand of the respondent authorities that either the Petitioners cannot be treated as direct recruits or no regular appointment can be made to the post in the service till permanent incumbents of the service who are on deputation outside the Irrigation Department maintain their lien against the cadre posts, has to be stated to be rejected. I have already pointed out above that the petitioners having been appointed in a manner other than by way of promotion or by transfer have to be treated as direct recruits to the cadre or ex-cadre posts which fall within the definition of appointment to the service. It is apparent that in case the above noted 227 posts manned by deputationists are taken into account while working out, the quota meant for the direct recruits, their strength is short by 148, that is, out of a total of 728 posts, they should be manning 473 at the rate of 65% whereas at the moment they are having only 325 posts. In the light of this factual position the petitioners are apparently within their quota and to shunt them out while retaining promotees or persons appointed from sources other than direct recruitment in excess of their quota would undoubtedly amount to arbitrariness.

10. To assail that the petitioners are not direct recruits, Mr. Pawar makes a reference to Rule 8 and contends that since they were not appointed through the Public Service Commission, they cannot be taken as direct recruits as envisaged by the rules. I, however, see no merit in this stand for the short reason that the procedure laid down for making a direct appointment does not invalidate the appointment made by the competent authority. This is more so in the light of the definition of ‘direct appointment’ which has already been reproduced above. As per this definition, an appointment made otherwise than by way of promotion or transfer and through open competition is to be treated as direct appointment. Solely for the reason that the petitioners were selected from the open market by a Selection Committee instead of the Public Service Commission, validity of their appointment cannot be affected and it cannot be said that they have been appointed in any manner other than by way of direct appointment. In the light of the discussion above it looks difficult to appreciate as to what can possibly be the difficulty with the respondent authorities in implementing the quota rule (Rule 6) earnestly and meaningfully qua the direct recruits even if their appointment have to be made on temporary basis or against temporary posts. As long as ‘direct recruits’ are available Page: 424from the open market and are willing to join as Assistant Engineers on temporary or ad hoc basis, the, Government cannot possibly take Shelter behind the theory of inconvenience to them or the non-availability of permanent posts. Intention of the rules appears to be that the Government must maintain the mandatory balance envisaged by the quota rule. It cannot keep on promoting persons from sources other than direct recruitment without either advertising or making an effort for bringing in or appointing persons through this source to the extent of there quota, if this is done, as in the instant case, then virtually it amounts to a fraud being played on the rules and cannot easily be countenanced. Though the observations of the Supreme Court referred to above have been made in the content of promotional posts, yet that, to my mind makes the least difference in principle even if the posts have to be filled in on temporary or ad hoc basis through direct recruiotement. These observations clearly govern the situation as in the present case.

11. Thus while allowing these petitions, I hold that in view of the observations of the Supreme Court referred to above it is not permissible for the respondent authorities to not to notice or take into account the deputation posts while working out of the quota meant for different categories of persons mentioned in Rule 6 of the rules. In the light of this conclusion of mine, the petitioners obviously fall within the quota; i.e the quota meant for direct recruits even if they are ad hoc appointees and the respondent authorities cannot justifiably terminate their services in order to retain or accommodate persons promoted or appointed from sources other than direct recruitment. Thus these petitions stand allowed as indicated above but with no order as to costs.

12. Petition allowed.