Full Judgment Text
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PETITIONER:
H.S. VERMA & ORS.
Vs.
RESPONDENT:
SECRETARY, MINISTRY OF SHIPPING & TRANSPORT AND ORS. ETC.,ET
DATE OF JUDGMENT07/08/1979
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
FAZALALI, SYED MURTAZA
VENKATARAMIAH, E.S. (J)
CITATION:
1980 AIR 2086 1981 SCR (1) 209
1979 SCC (4) 415
ACT:
Constitution of India 1950, Art. 14-Central Engineering
Service Rules 1959-Two different modes of appointment of
engineers-By examination and by interview High Court holding
interview appointee, not part of the service but to ex-cadre
posts-Engineers placed in two categories-Central Engineering
Service (Roads), Group A for examination appointees and
Central Engineering Pool Group A for interview method
appointees-Validity of.
HEADNOTE:
The Central Engineering Service (Roads) of the Ministry
of Transport and Communications, Department of Transport
(Roads Wing) Class-I Recruitment Rules 1959 provided that
recruitment to the service shall be made by competitive
examination, by promotion and by transfer as provided for in
Parts III, IV, V of the Rules. The Rules provided that no
appointment shall be made to the service or to any post
borne on the cadre of the service by any method, not
specified in Rule 3. The Rules empowered the Government to
determine the methods of recruitment for filling any
particular vacancy in the service.
An amendment introduced on August 2, 1966 to Rule 3 of
the 1959 Rules provided an additional method of recruitment
viz. direct recruitment through the UPSC in accordance with
Part VI of the Rules. This Part provided that in special
circumstances recruitment by selection of candidates to the
posts mentioned in Appendix IV shall be made by the
Commission by open advertisement, notwithstanding anything
contained in the Rules.
Right from the inception selection of officers for
Class-I posts was made by an examination conducted by the
UPSC. After the introduction of r. 3(d) in the 1959 Rules in
August 1966, 951 persons were recruited by the UPSC by way
of interviews without written examination.
Some of the respondents who were officers selected by
written examination impugned the appointment of the 51
officers including the petitioners who were working as
Assistant Executive Engineers or Executive Engineers in the
same wing on the ground that the appointment of these 51
officers was contrary to the Recruitment Rules in that they
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were appointed in contravention of the 1959 Rules or in the
alternative they contended that they should be treated to
have been appointed to ex-cadre posts and for this reason
they were not eligible for promotion to the posts of
Executive Engineers, until the respondents were first
appointed to those posts. Lastly the respondents contended
that they were entitled to be confirmed in preference to the
petitioners. A similar writ petition was filed by three
Executive Engineers (among the present respondents) alleging
that their recruitment by the method of examination was in
accordance with the Recruitment Rules but that the
petitioners were appointed by
210
mere interviews, a method not permissible under the Rules
and therefore those who were appointed by interview method
could neither be confirmed nor promoted unless they were
brought into the cadre and appointed to the regular cadre
posts.
The High Court held that the Rules of 1966 had no
retrospective operation and that therefore an appointment
made in contravention of the rules could not he regularised
by making a rule under the proviso to Art. 309. It also held
that the petitioners were appointed to temporary posts
without any right to become permanent but since the
temporary appointments were outside the service and against
ex-cadre posts, Rule 3 of he 1959 Rules had no application
and for that reason their appointments could not be said to
be illegal.
While the writ petitions were being argued orders were
issued on August 28, 1973 by which persons who were
appointed as Assistant Executive Engineers by way of
interview were deemed to have been inducted into the
Engineering Service as Assistant Executive Engineers with
retrospective effect from August 2, 1966 i.e. the date of
induction of r. 3(d) into the 1959 Rules. Provisional
seniority list was separately made for the different
categories of officers. This order of August 28, 1973 was
not however questioned before the High Court.
In view of the decision of the High Court the
Government withdrew and cancelled the provisional inter se
seniority list dated August 28, 1973 and at the same time it
issued a Notification to the effect that the officers
appointed by the interview method would be deemed to have
been inducted into the Central Engineering Service (Roads)
Class-T Service as temporary officers in the grade with
effect from August 2, 1966.
On March 1, 1976 the Government issued a notification
stating that it had decided to set up two services called
the Central Engineering Service (Roads) Group ’A’ comprising
of officers appointed by the method of examination/
promotion and the other Central Engineering Pool, Group ’A’
comprising of officers appointed by the method of interview.
Rules in respect of both the services were published and the
inter-se seniority list of officers of the two services were
circulated to the concerned officers.
The Central Engineering Service Rules constituted a new
service called the Central Engineering Service (Roads) Group
’A’ consisting of (a) persons who were holding posts in the
various grades included in the Central Engineering Service
(Roads) Class I immediately before the commencement of the
1959 Rules; (b) persons who were appointed to the old
service on or after the date of commencement of the 1959
Rules, except those who have been appointed to the Pool
Service; and (c) persons who may be appointed to the new
service after the commencement of the new Rules
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The Central Engineering Pool Group ’A’ consisted of
persons appointed to the Roads Wing by competitive
examination by the method of interview through the UPSC
before the commencement of the Pool Rules. A note appended
to r. 3 contained a clarification that the regular tenure
service cf the officers in the respective grade prior to
their appointment to the Pool would count for the purposes
of qualifying service for promotion and confirmation in the
Pool in the different grades. Rule 5 authorised Government
to
211
keep in abeyance certain posts and operate them as Isolated
Posts outside the Pool. Promotions to higher posts in Pool
were to be made on the recommendations of the Departmental
Promotion Committee.
In their writ petitions the petitioners contended that
though they were appointed to the posts long before the
respondents they were ranked much below the latter in the
list of seniority and that consequently they would be denied
promotional opportunities to the higher posts, that their
segregation into a separate class called the Pool is totally
unscientific and was in violation of Articles 14 and 16 of
the Constitution; and that the classification made between
the Pool officers and Service officers is discriminatory and
bore no nexus with the object sought to be achieved by it.
^
HELD: 1. Out of 40 posts of Superintending Engineers
the Pool officers were occupying 27 posts whereas Service
officers held only 13 posts. There is a historical reason
for this state of affairs. Recruitment on a very large scale
was made by the interview method in 1962, 1964 and 1965 fol.
execution of certain urgent works. Most of the petitioners
had a longer standing though not in a regular cadre, and
naturally they were occupying even the two posts in the
isolated category which were meant for officers belonging to
the regular cadre. [224D-E]
2. The so called Pool created by the 1976 Rules
consisted of stagnant water. There is to be no fresh
recruitment to the Pool pos(s and. therefore, allocations to
the Pool would always be shared by I definite and
predictable number of officers. On the other hand, the other
wing was a living and growing service to which recruitment
continued to be made in subsequent years. Allocations to
that wing would have to be in proportion to the total number
of officers working therein but in the very nature of things
there were budgetary constraints on the creation of
additional posts. 1224 F-G]
3. It cannot be said that persons holding similar posts
and having similar responsibilities to discharge could be
classified into different categories for the mere reason
that some of them were recruited directly by the interview
method and some were recruited directly on the result of a
competitive examination. Were it permissible to make such
classification, ingenuity may suggest the nature of
curriculum in different years as the basis of
classification. If subjection tc different kinds of tests as
a condition of eligibility produces qualitative difference
in the ability of persons recruited to similar posts, it may
perhaps become necessary to limit the promotional
opportunities, in regard to the relatively higher posts to
those whose abilities are remarkably higher. The Government
had made no grievance that the petitioners who were
appointed by the interview method were in any way inferior
in ability, efficiency or educational qualifications to
those who were appointed after a written competitive
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examination. In the matter of experience too, the
petitioners were in no way inferior to the respondents.
[224H-225C]
4. Though classification which proceeds merely on the
basis that certain persons were recruited after going
through one test and certain others after going through
another test would be unscientific, it cannot be said on the
facts of the case that there could be no valid basis or
justification for classifying the various officers of the
Roads Wing into separate categories. The appointments
212
of some of the petitioners and some of the respondents were
made in violation of the Rules which were in force at the
relevant time. It is in respect of that class of persons
that the High Court held that they must be deemed to have
been appointed to ex-cadre posts. Persons for whose
appointments the necessary legal sanction was wanting, were
liable to be put out of employment but in order to prevent
any such harsh consequence, the High Court came to record
the finding that the must be held to have been appointed to
ex-cadre post. That finding must be taken to have been
affirmed in these proceedings, with the result that no
action would lie hereafter for a declaration or any similar
relief asking that their appointments were illegal. [225G-
226B]
5. The fact remains that persons who were appointed
contrary to the Rules, but to ex-cadre posts, were taken
initially for purposes of certain projects. Their precarious
tenure was continued from time to time but that would not
furnish justification for treating them on the same footing
as others whose appointments were made strictly in
accordance with Rules and who were appointed to posts borne
on the cadre of the Central Engineering Service. A division
of these two classes of officers into separate categories
would remove possible injustice to those who were appointed
to cadre posts in that, their promotional opportunities
would not be blocked or hindered by ex-cadre officers who
were recruited on a large scale to meet an urgent necessity.
Such a classification would also minimise the injustice
which would otherwise have been caused to those who were
appointed to ex-cadre posts. [226 C-E]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 159 of 1977
(Under Article 32 of the Constitution)
AND
CIVIL APPEAL No. 1275 of 1975
Appeal by special leave from the Judgment and order
dated 28-9-1973 of the Delhi High Court in Civil Writ No.
536/70.
AND
WRIT PETITION NOS. 1211 of 1977 and 3795 of 1978
(Under Article 32 of the Constitution)
Dr. Y. S. Chitale, P. H. Parekh and C. B. Singh for the
Petitioners in W.P. 159/77 and appellants in C.A. 1275/75.
M. K. Ramamurthi, Janardhan Sharma and Jitendra Sharma
for the Petitioners in W.P. 1211/77.
J. M. Khanna for the Petitioners in W.P. 3795/78 and RR
6, 12, 13 and 16 in the Appeal.
U. R Lalit, E. C. Agrawala and Miss A. Subhashini for
R. 1 in W.P. 159/77, 3795/78.
M. Mudgal for RR 12, 14 and 18 in W.P. 159/77.
H. B. Datar and B. P. Singh for RR 2-5 in CA 1275/75,
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RR 27-
213
(Chandrachud, C. J.)
30, 38-40, 42, 44, 47, 49-52 in W.P. 159/77 and R. 4 in W.P.
3795/78.
C. N. Murthy and R. Vasudevan for RR 19-21 and 24 in
CA. 1275/75, RR 42, 44, 118 and 150 in WP No. 1211/77.
In person (R. 53 in W. P. 159/77).
COUNSEL FOR THE PARTIES APPEARING PURSUANT To NOTICE:
O. P. Sharma, J. M. Khanna, A. Subba Rao and B. P.
Singh in Writ Petition No. 159/77.
C. N. Murthy and R. Vasudevan in W.P. No. 1211/77 and
RR at
Sl. Nos. 42-44 and 115-118 of published Notice in W.P. No.
159/77.
Jitendra Sharma in W. P. No. 1211/77
The Judgment of the Court was delivered by
CHANDRACHUD, C. J.-This is a group of Writ Petitions
and an Appeal involving the questions, mainly,
(i) whether the petitioners and the appellants
recruited directly as Assistant Executive
Engineers, Executive Engineers, Superintending
Engineers and, may be, as Chief Engineers were
appointed to regular cadres in the Ministry of
Ship ping and Transport (Roads Wing), Government
of India, or whether they were appointed to
ex-cadre posts; and
(ii) whether they can be put into a separate class for
the purpose of regulating their seniority and
promotional opportunities in relation to others
who were appointed to similar posts on the basis
of the result of the Combined Engineering Services
Examination.
The petitioners and the appellants (whom we will refer to as
the ’petitioners’) were appointed after a viva voce test
only, or to use the language of the current controversy,
they were appointed after being successfully interviewed by
the Union Public Service Commission. The latter mode of
expression helps to highlight that no "examination" as such
was involved in their selection and appointment as in the
case of those others who now figure in the array of
respondents.
Some of the respondents herein, who were then working
as Assistant Executive Engineers in the Ministry of Shipping
and Transport II (Roads Wing), filed a Writ Petition (C.W.
536 of 1970) in the Delhi High Court against 51 officers,
including the present petitioners, who
214
were working either as Assistant Executive Engineers or as
Executive Engineers in the same Wing. Their contention was
that the appointment of these 51 officers being contrary to
the recruitment rules was illegal or alternatively, that
they were appointed to ex-cadre posts and not to the
’Central Engineering Service’. It was therefore claimed
that none of those officers was eligible for promotion to
the post of Executive Engineer until the respondents were
first appointed to those posts and that the respondents were
entitled to be confirmed with immediate effect ill
preference to those officers immediately on the availability
of permanent vacancies.
A similar Writ Petition (C.W. 537 of 1970) was filed in
the Delhi High Court by three Executive Engineers, who are
amongst the present respondents, contending that whereas
their appointment after passing a competitive examination
held by the U.P.S.C. was in accordance with the recruitment
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rules, the present petitioners were appoint ed to ex-cadre
posts after a mere interview, that such a method of
recruitment was not permissible under the rules, that the
petitioners herein were appointed for the limited purpose of
assisting in the execution of certain projects and that
those who were appointed in accordance with the rules were
entitled to be treated as senior to those who were not. It
was for these reasons contended that Executive Engineers who
were appointed by the interview method can neither be
confirmed nor promoted unless and until they were brought
into the cadre and appointed to the regular cadre posts.
The Rules which arc alleged to have been breached by
the appointment of the petitioners were made by the
President under the proviso to article 309 of the
Constitution. They were notified on October 16, 1959 and
were called ’the Central Engineering Service (Roads) of the
Ministry of Transport and Communication . Department of
Transport (Roads Wing), Class T, Recruitment Rules, 1959’.
The Rules, evidently, did not provide for appointment to the
Central Engineering Service after a mere interview of a
candidate by the Union Public Service Commission. But they
were amended by a notification dated August 2 1966 issued by
the President under the proviso to article 309 of the
Constitution. By the amendment, clause (d) was added to rule
3 as a result of which appointments could be made 3 to the
Central Engineering Service by direct recruitment through
the Commission in accordance with Part VI of the Rules. Part
VI of the amended Rules called ’Direct recruitment by
selection through the Commission provided that in special
circumstances direct recruitment by selection of suitable
candidates, with such qualifications, with in such age
limits, and satisfying such other conditions as are consi-
215
dered necessary at any time in the interest of the service,
to the posts mentioned in Appendix IV, shall be made by the
Commission by open advertisement notwithstanding anything
contained in the rules. Certain other consequential
amendments were made to the 1959 Rules by the 1966
Amendment.
The question which arose for decision of the Delhi High
Court in the two writ petitions was whether the appointments
of the petitioners herein, who were appointed prior to
August 2, 1966 were illegal and if not, whether they were
appointed to cadre posts or ex-cadre posts. on behalf of the
Government of India a counter affidavit was filed in the
High Court by Shri Harbans Singh, Under Secretary in the
Ministry of Transport (Roads Wing), denying that the
petitioners were appointed to ex-cadre posts or that they
were treated by the Ministry as being outside the regular
cadre of Engineering Service. Counsel for the Union of India
submitted in the High Court that all posts of junior Class-I
Assistant Engineers Consultant (as the Assistant Executive
Engineers were then called) created in the Ministry of
Transport, Roads Wing, were posts in the service properly
so-called whether the appointments were made on a permanent
basis or temporary basis. Counsel for some of the
petitioners contended in the High Court that the amendment
made in 1966 to the 1959 Rules was retrospective and
therefore the appointments of the petitioners could be
considered to have been made in accordance with the rules to
the posts borne on the cadre of the Engineering Service.
The Delhi High Court was faced with a problem of
priorities. If it were to accept the Government of India’s
contention that the petitioners were appointed to cadre
posts, their appointments might have been required to be
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treated as illegal since appointments to posts borne in the
cadre could not be made by the interview method under the
1959 Rules. Any finding or indication to such effect would
have paved the way for a challenge to the very legality of
the petitioners’ appointments and eventually to their exit
from the Engineering Department altogether. On the other
hand, accepting the respondents’ contention that all of them
had to be confirmed and promoted in preference to the
petitioners would, while legalising the petitioner’s
appointments? virtually amount to denial of promotions to
them in higher posts.
By its judgment dated September 28, 1973 a Division
Bench of the Delhi High Court held that the Rules of 1966
had no retrospective operation. Relying upon a decision of
this Court in R. N. Nanjundappa v. T. Thimmaiah and Anr. the
High Court further held
216
that in any case, an illegal appointment could not be
regularised by making a rule under the proviso to Article
309 of the Constitution. But in order to save the
petitioners’ appointments from the challenge of illegality,
the High Court rejected the Government’s contention that
they were appointed to cadre posts in the Central
Engineering Service. It held that the petitioners were
appointed to temporary posts without any right to become
permanent, for the purposes of projects like the
International Development Association Loan Programme,
Emergency Road and Bridge Works Programme and Lateral Road
Project and Strategic Roads Work. Since the temporary
appointments of the petitioners were outside the service and
against ex-cadre posts, rule 3 of the 1959 Rules was
regarded as having no application and therefore, the
petitioners’ appointments could not in any way be said to be
illegal. The High Court relied upon a decision of this Court
in Champaklal Chimanlal Shah v. The Union of India and held
that the Government has to employ temporary servants to
satisfy the needs of urgent contingencies and such
appointments are perfectly legitimate. So long as such
temporary servants work against ex-cadre posts and are even
promoted to higher ex-cadre posts, no member of the Service,
according to the High Court, could have a justifiable
grievance.
While the writ petitions were being argued in the High
Court, orders expressed in the name of the President were
issued on August 28, 1973 by which persons appointed as
Assistant Executive Engineers on the basis of interviews
held by the U.P.S.C. were to be ’deemed to have been
inducted’ into the Engineering Service as Assistant
Executive Engineers with effect from August 2, 1966. On the
same date, provisional joint-seniority lists were issued
separately for different categories of Class I Technical
Gazetted officers in the Roads Wing of The Ministry and
representations from the concerned officers were invited
within a period of one month. The parties requested the High
Court to dispose of the writ petitions without taking into
consideration the effect and legality of the Presidential
order dated August 28, 1973 and the provisional seniority
lists circulated on that date. Accordingly, the High Court
did not pronounce upon the same.
In C.W. 536 of 1970 filed by 4 Assistant Executive
Engineers who were appointed by competitive examination,
against 4 Executive Engineers and 47 Assistant Executive
Engineers who were appointed be the interview method, the
High Court passed the following order: -
"To summarise the position, it may be stated that
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respondents 2 to 52 were not appointed to the Service
or to
217
any posts borne on the cadre of the Service. Their
appointments were to ex-cadre posts and outside the
Service and those appointments were valid. The orders
by which respondents 2 to 6 were promoted as Executive
Engineers are not liable to be quashed as it could not
be shown that the promotions were made to the posts
borne on the cadre of the Service or that as a result
of those promotions the respondents came to be
appointed to the Service. Their initial appointments 35
well as promotions have been outside the service and
not to any posts borne on the cadre of the Service.
There is also no question of giving any directions for
not promoting any of the respondents to the posts of
Executive Engineers so long as the promotions are not
to posts borne on the cadre of the Service. As
respondents 2 to 52 were not appointed to the Service
or to any posts borne on the cadre of the Service, the
only relief to which the petitioners are entitled is
that the Union of India shall not, so long as the said
respondents are not legally appointed to the Ser- vice
or to any posts borne on the cadre of the Service,
treat them as having been appointed to the Service or
promote them to any posts that may be included in the
cadre of the Service."
C.W. 537 of 1970 was filed by 3 Executive Engineers
against 1(3 Executive Engineers, 2 of whom were promoted as
Superintending Engineers. All the three petitioners in that
writ petition were appointed by competitive examination, two
in 1957 and one in 1958, that is to say, before the making
of the 1959 Rules. Respondents 2 to 11 to that writ petition
were appointed by the, interview method. The question
whether the petitioners in that writ petition, having been
appointed prior to 1959 Rules, could be deemed to have been
appointed to the regular cadre of the Central Engineering
Service was not considered by the High Court since the
legality of their appointment was not in issue. While
dismissing the writ petition the High Court held.
"As respondents 2 to 11 were not appointed to the
service and no posts have so far been declared to be
posts borne on the cadre of the Service it follows that
they are holders of ex-cadre posts outside the Service.
The promotion of any one of them to the higher post of
Planning officer or Superintending Engineer cannot
legally be objected to by the petitioners. Even if
somehow the petitioners can be regarded to have been
218
appointed to the Service, as was asserted on their
behalf, still respondents 2 to 11 having been-directly
selected as Executive Engineers against ex-cadre posts
can in their turn aspire for promotion to higher ex-
cadre posts.. .. .... .. The appointments of
respondents 2 to 11 to ex-cadre posts, were in no way
invalid."
In both the writ petitions the High Court made a
significant observation, to which events leading to the
present proceedings may perhaps be traced, that if it was
desired by the Government of India, that persons who were
appointed against ex-cadre posts should also become members
of the regular Service, the service shall have to be
reconstituted by providing, amongst other matters, for the
initial constitution of the Service, future recruitment and
determination of inter se seniority.
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On May 31, 1974 the Government of India in the Ministry
of Shipping and Transport (Roads Wing) issued a Memorandum
saying L that in view of the judgments of the High Court in
the two writ petitions, the provisional inter se Seniority
Lists dated August 28, 1973 of all Class I Technical
Gazetted officers appointed to the various grades in the
Roads Wing were being withdrawn and cancelled.
On the same date, that is, on May 31, 1974 the
President issued a Memorandum in each individual case
cancelling the orders issued under an earlier Memorandum
dated August 28, 1973. By the latter Memorandum orders were
issued in each individual case that officers appointed by
the interview method will be deemed to have been inducted
into Central Engineering Service (Roads) Class I Service as
temporary officers in the particular grade with effect from
August 2, 1966 being the date on which the 1959 Rules were
amended so as to provide for appointment by the interview
method. The Memorandum of May 31, 1974 contains a recital to
the effect that it had become necessary to issue it in view
of the judgment of the Delhi High Court in Writ Petition No.
536 of 1970 holding that the Assistant Executive Engineers
could not be treated as having been appointed to any post
borne on the cadre of the Central Engineering Service.
On March 1, 1976 the Government of India issued a
Notification saying that having regard to the judgments of
the High Court in Civil Writ Petitions 536 and 537 of 1970,
the Government after a most careful consideration had
decided to set up 2 Services for Technical Class I officers
of the Roads Wing, one to be called the Central Engineering
Service (Roads), Group A, comprising of officers appointed
by the method of examination/promotion, and the other, to be
called the
219
Central Engineering Pool, Group A, comprising of officers
appointed by the method of interview. The recruitment Rules
for the two Ser vices were published in the issue of the
Gazette of India, dated February 28, 1976. Two Lists, one
showing the names of officers appoint ed to the two Services
on the date of the commencement of the new Rules and the
other showing the inter se seniority of the officers of the
two Services, were circulated to the officers concerned with
a request to bring to the notice of the Government any
factual errors or omissions and to submit representations,
if so advised, against the proposed Seniority Lists within
one month.
We will notice the relevant rules before proceeding to
consider the validity of the petitioners’ contentions.
On October 16, 1959, the President in the exercise of
powers conferred by the proviso to article 309 of the
Constitution made rules called ’the Central Engineering
Service (Roads) of the Ministry of Transport &
Communications, Department of Transport (Roads Wing) Class
I, Recruitment Rules, 1959’. At the time of promulgation of
these Rules, Assistant Executive Engineers used to be called
Assistant V Engineers Consultant and Executive Engineers as
Divisional Engineers Consultant. Part II of the Rules
containing rules 3 to 5 dealt with the method of recruitment
to the Central Engineering Service (Roads). Rule 3 provided
that Recruitment to the Service shall be made by any of the
following three methods: (a) By competitive examination m
accordance with Part III of the Rules; (b) by promotion in
accordance with Part IV of the Rules; and (c) by transfer of
an officer in Government service in accordance with Part V
of the Rules. Rule 4 (b) provided that no appointment shall
be made to the Service or to any post borne on the cadre of
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the Service by any method not specified in rule 3. By rule
4(c) Government was given the power to determine, subject to
the provisions of sub-rule (3), the methods of recruitment
to be employed for the purpose of filling any particular
vacancy in the Service or such vacancies therein as may be
required to be filled during any particular period and the
number of candidates to be recruited by such method. Rule
4(d) provided for reservation in the ratio of 2/3: 1/3 to
Assistant Engineers Consultant and Assistant Engineers,
Grade I (Class II) respectively in the matter of promotion
to or for selection for the post of Divisional Engineer
Consultant. Rule 4(d) contained an important qualification
to the effect that if sufficient number of suitable
candidates were not available for promotion from the grade
of Assistant Engineer Consultant and Assistant Engineer
Grade I to the grade of Divisional Engineer Consultant, the
remaining vacancies in the grade of Divisional Engineer
Consultant were to be filled by transfer in accordance with
Part V of the Rules.
220
Part III of the Rules containing rules 6 to 18 dealt
with recruitment to the Service by competitive examination.
Part IV containing rule 19 dealt with recruitment by
promotion to the grade of Divisional Engineer Consultant,
Class I. Sub-rule (2) of rule 19 provided that if sufficient
number of officers were not available to fill the quota of
either of the two categories mentioned in rule 19 (1) (i)
the remaining vacancies in each category were to be filled
either in accordance with Part V of the Rules or through the
Commission.
Part V of the Rules which dealt with recruitment by
transfer of an officer in Government service provided that
the Government may, in special cases and after consulting
the Commission where such consultation was necessary under
the Union Public Service Commission (Exemption from
Consultation) Regulations, transfer or take on deputation an
officer in Government service in India to a post borne on
the cadre of the Service.
On August 2, 1966 the Rules of 1959 were amended in
exercise of powers conferred by the proviso to article 309
of the Constitution. The first significant amendment made in
1966 was the addition of clause (d) to rule 3 of the 1959
Rules. By that clause an additional method or recruitment
was provided, namely, ’By direct recruitment through the
Commission in accordance with Part VI’ of the Rules.
Consequential amendments were made to clauses (c) and (d) of
rule 4 of the 1959 Rules. By rule 4 of the Amendment Rules,
the concluding words "or through the Commission" of rule
19(2) of the 1959 rules were omitted. Lastly, a new part,
Part VI, was added to the 1959 Rules under the heading
"Direct recruitment by selection through the Commission".
The newly added Part VI provided that-
In special circumstances, direct recruitment by
selection of suitable candidates, with such
qualifications, within such age limits, and satisfying
such other conditions as are considered necessary at
any time in the interest of the service, to the posts
mentioned in Appendix IV, shall be made by the
Commission by open advertisement notwithstanding
anything contained in these rules.
The Central Engineering Pool Group ’A’ of the Ministry
of Ship ping and Transport (Roads Wing) Rules, 1976 and the
Central Engineering Service (Roads) Group ’A’ of the
Ministry of Shipping and Transport (Roads Wing) Rules, 1976
made under the proviso to article 309 of the Constitution
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were notified on February 24, 1976. We will refer to the
former as the ’Pool Rules’ and to the latter as the ’CES
Rules’.
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Turning first to the Pool Rules, rule 2(a) defines
"Pool" as the "Central Engineering Pool, Group ’A’,
constituted under rule 3". Rule ’’(e) provides that "Regular
continuous Service" means service rendered on a continuous
basis after regular appointment to a grade on the
recommendations of the Departmental Promotion Committee, or
in consultation with the Commission, as the case may be.
Part II of the Pool Rules which deals with the
constitution of the Central Engineering Service Group ’A’
provides that there shall be constituted a pool, to be known
as the "Central Engineering Pool Group ’A’ ", consisting of
persons appointed to the Roads Wing by the competitive
selections by the method of interview through the Commission
before the commencement of the Pool rules The note appended
to rule 3 contains a clarification to the effect that the
regular continuous service of the officers in the respective
grade in the Ministry of Shipping and Transport (Roads Wing)
prior to their appointment to the Pool will count for the
purposes of qualifying service for promotion and
confirmation in the Pool in the grade of Assistant Executive
Engineers, Executive Engineers, Superintending Engineers
and, Chief Engineers (Level I and Level II posts). By rule
S, the authorised strength of the various grades of posts in
the pool shall be such as may be determined and notified by
the Government from time to time, provided that the
Government may, for reasons to be recorded in writing and in
consultation with the Commission, keep in abeyance such
number of posts in such grades as are included in the table
below rule 4 and operate them as "isolated posts" outside
the Pool. Appointments to the "isolated posts" are to be
made by selection- or promotion, as the case may be, on the
recommendation of a duly constituted Departmental Promotion
Committee, from an integrated list of officers working in
the next lower grade in the Pool and in the Central
Engineering Service (Roads), Group ’A’. The list is to be
drawn up on the basis of the length of their regular
continuous service in their respective grades. The
qualifying service for promotion is the same as laid down in
Part III. By rule 6, recruitment to the grades of Executive
Engineer, Superintending Engineer and Chief Engineer (Level
II and Level I) in the Pool shall be made by promotion in
accordance with Part III, provided that a vacancy in these
grades, whenever it occurs, shall first be filled by
transfer of an officer of the Pool holding a corresponding
post in the "isolated category of posts" in accordance with
the proviso to rule 5.
Part III of the Pool Rules deals with recruitment by
promotion to the grades of Executive Engineer,
Superintending Engineer and Chief
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Engineer. These promotions are required to be made on the
recommendations of the Departmental Promotion Committee
The CES Rules contain provisions governing appointments
to the Central Engineering Service as contrasted with
appointments to the posts in the Pool. By rule 3 of the CES
Rules a new Service called the "Central Engineering Service
(Roads), Group ’A’ " is constituted of (a) persons who were
holding posts in the various grades included in the Central
Engineering Service (Roads) Class I immediately before the
commencement of the 1959 Rules, (b) persons who were
appointed to the old Service on or after the date of
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commencement of the 1959 Rules, except those who have been
appointed to the Pool Service and (c) persons who may be
appointed to the new Service after the commencement of the
new Rules. Rule 3 (3) contains a proviso regarding isolated
posts which is similar to the proviso to rule 5 of the Pool
Rules. By rule 3 (4), recruitment to the Service after the
initial constitution thereof has to be made either by
competitive examination or by promotion or by selection or
by transfer or deputation of an officer in Government
service or by direct recruitment through the Commission. The
proviso to this sub-rule says that a vacancy in the grades
of Executive Engineer, Superintending Engineer and Chief
Engineer (Level II and Level I), whenever it occurs, shall
first be filled by the appointment of an officer of the
Service holding a corresponding post in the "isolated
category of posts" in accordance with the proviso to sub-
rule (3).
The validity of these rules is assailed before us in
these Writ Petitions and the Appeal. The main grievance of
the petitioners is that though they were appointed to their
posts long before the contesting respondents, they will rank
much below the latter in the list of seniority and will
consequently be denied promotional opportunities to the
higher posts. It is contended on behalf of the petitioners
that their segregation into a separate class called the Pool
is totally unscientific and is in violation of the
provisions of articles 14 and 16 of the Constitution. The
petitioners made no grievance against the creation of the
category of ’isolated posts’ but their contention is that
the classification made between the Pool officers and the
Service officers is discriminatory and bears nexus with the’
object to be achieved by it. If the object of the
classification is to ensure higher efficiency in the Central
Engineering Service, it is contended that the petitioners,
who have rendered meritorious service for the past many
years and for longer periods than The contesting
respondents, cannot’ be put into a separate class thereby
denying to them an equal opportunity for promotion to higher
posts along with those junior officers who are put into the
class of Service
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Officers. Shri Chitale, who led the argument on behalf of
the petitioners, demonstrated to us by a comparative
examination of the allocation of posts made by the
Government to the two categories in the exercise of the
power conferred upon it by the 1976 Rules, that’ whereas, 15
posts of Superintending Engineers are available for 19
Executive Engineers in the Service Class, in so far as the
Pool officers are concerned only 17 posts in the grade of
Superintending Engineer have been allocated for as many as
69 Executive Engineers. Out of 15 posts of Superintending
Engineers available for the Service category, 13 are put in
the Service class and 2 in the isolated category. Out of 17
posts of Superintending Engineers available for Pool
officers, 8 are put in the Pool and 9 in the isolated
category. This broadly is the grievance or the petitioners.
As against this, Shri Lalit appearing on behalf of the
Union of India contends that the judgment rendered by the
Delhi High Court in the two writ petitions left no option to
the Government save to classify The petitioners in a
separate category. Counsel says that in spite of the
contention of the Government that the petitioners were
appointed to cadre posts in the regular Service, the Delhi
High Court held in the writ petitions that petitioners were
appointed to ex-cadre posts and that if their appointments
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were to be treated as having been made to cadre posts, the
appointments would be illegal, being in contravention of the
rules then hl force. The High Court having held that the
petitioners were appointed to ex-cadre posts, there is a
valid basis for classifying the petitioners in a separate
category qua others whose appointments were made in
accordance with the rules. It is denied on behalf of the
Government that any substantial prejudice is likely to
result to the petitioners on account of the classification
made by the 1976 Rules. In fact, Shri Lalit urged as one of
his strongest points that granting everything in favour of
the petitioners, the classification did not bring about such
hostile discrimination against the petitioners that this
Court should take notice of it. It is argued that it is not
the 1976 Rules which have created two distinct classes but
such classes existed independently or the rules, by reason
of the fact that persons like the petitioners were appointed
contrary to the rules while the contesting respondents were
appointed in conformity with the rules. There is no
obligation on the Government, it is contended, to integrate
two distinct and different classes of employees in order to
bring about equality between them.
Shri H. B. Datar appearing for some of the contesting
respondents supported the arguments advanced on behalf OF
the Government of India and contended that since the
appointments of the petitioners who
224
were appointed by the interview method were at any rate
under a cloud the Government was driven to classify them
separately in order to protect their tenure which was
essentially precarious and insecure. The object of
classifying the petitioners separately, far from being to
subject them to hostile discrimination, is to confer upon
them a status which could easily and justifiably be denied
to them. The Government, according to Shri Dadar, has been
more than fair to the petitioners firstly, by condoning the
illegality which had crept into their appointments and
secondly, by allocating to them a sufficient number of posts
of promotion. No grievance could be made by the petitioners
that the Government is generous but not generous enough.
We are not disposed to accept Shri Chitale’s contention
in its entirety that any great prejudice has been occasioned
to the petitioners as a result of the classification made by
the 1976 Rules. Out of 4 posts of Superintending Engineers,
the Pool officers are occupying 27 whereas the Service
officers hold 13 only. The break-up is as follows. out of
these 40, 19 are placed in the isolated category. These lg
posts and 8 posts of Superintending Engineers in the Pool
are occupied by the Pool officers. There is a historic
reason for this state of affairs. Recruitment on a very
large scale was made by the interview method in 1962, 1964
and 1965 for the execution of the International Development
Association programme, Emergency road and bridge works
programme, Lateral Road Project and Strategic Road works in
Gujarat and Rajasthan. Most of the petitioners have a longer
standing, though not in the regular cadre, and naturally
they are occupying even the two posts in the isolated
category which are meant for officers belonging to the
regular cadre.
It is also necessary to remember, while assessing the
strength of the petitioners’ grievance of hostile
discrimination that the so called Pool created by the 1976
Rules consists of stagnant water. There is going to be no
fresh recruitment to the Pool posts and therefore,
allocations to the Pool will always be shared by a definite
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and predictable number of officers. On the other hand, the
other wing is a living and growing service to which
recruitment will continue to be made in years to come.
Allocations to that wing will of course have to be in pro
portion to the total number of officers working therein but
in the very nature of things there are budgetary constraints
on the creation of additional posts.
Even though this is so, we are unable to accept the
contention that persons holding similar posts and having
similar responsibilities to discharge can be classified into
different categories for the mere reason that some of them
were recruited directly by the interview method and some
were recruited directly on the result of a com-
225
petitive examination. Were it permissible to make such
classifications, ingenuity may suggest the nature of
curriculum in different years as the basis of
classification. If subjection to different kinds of tests as
a condition of eligibility produces qualitative difference
in the ability of persons recruited to similar posts, it may
perhaps become necessary to limit the promotional
opportunities, in regard to the relatively higher posts, to
those whose abilities are remarkably higher. But, it is
nobody’s case and the Government has made no grievance that
the petitioners who were appointed by the interview method
are in any way inferior in ability, efficiency or
educational qualifications to those who were appointed after
a written competitive examination In the matter of
experience too, the petitioners are in no way inferior to
the contesting respondents.
Both the sides urged, though for different reasons,
that at least some of the Executive Engineers can be
justifiably treated differently. On behalf of the Government
Shri Lalit urged that 10 out of 69 Executive Engineers from
the 1962 batch were parties to the Delhi High Court judgment
in Writ Petition 536 of 1970 (out of which Civil Appeal 1275
of 1975 arises). The Delhi High Court having held that their
appointments are to ex-cadre posts, no grievance, it is
urged, can be made by them at any rate, if they are treated
differently. On the other hand, Shri Chitale contended that
the appointment of those Executive Engineers was in
accordance with rule 19(2) of the 1959 Rules since they were
appointed because no one was available from the Department
for being promoted as Executive Engineer
We do not want to add to the confusion in which these
matters, like Most of the service matters abound, by putting
our seal of approval on a sub-classification amongst
Executive Engineers depending on whether their appointments
were within or without the scope of rule 19(2). It is in the
interest of all concerned to evolve a uniform pattern which
will, in so far as is reasonably possible, cause injustice
to none.
Though classification which proceeds merely on the
basis that G: certain persons were recruited after going
through one test and certain others after going through
another test would be unscientific. it cannot be said on the
facts of the instant case that there can be no valid basis
or justification for classifying the various officers of the
Roads Wing into separate categories. As we have stated
earlier, the appointments of some of the petitioners and
some of the respondents were made in violation of the rules
which were in force at the relevant time. It is in respect
of that class of person that the Delhi High
226
Court was driven to hold that they must be deemed to have
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been appointed to ex-cadre posts. Persons for whose
appointments the necessary legal sanction was wanting, were
liable to be put out of employment but in order to prevent
any such harsh consequence, the Delhi High Court came to
record the finding that they must be held to have been
appointed to ex-cadre posts. T. hat finding must be taken to
have been affirmed in these proceedings, with the result
that no action will lie hereafter for a declaration or any
similar relief asking that their appointments are illegal.
But, the fact remains that persons who were appointed
contrary to the rules but to ex-cadre posts were taken
initially for purposes of certain projects to which we have
already referred. Their pre carious tenure was continued
from time to time but that will not furnish justification
for treating them on the same footing as others whose
appointments were made strictly in accordance with the rules
and who were appointed to posts borne on the cadre of the
Central Engineering Service. A division of these two classes
of officers into separate categories will remove possible
injustice to those who were appointed to cadre posts in
that, their promotional opportunities will not be blocked or
hindered by ex-cadre officers who were recruited on a large
scale to meet an urgent necessity. Such a classification
will also minimise the injustice which would otherwise have
been caused to those who were appointed to ex-cadre posts.
Taking all relevant aspects of the matter into
consideration we propose to pass the following order which,
it must be stated, was discussed by us quite at some length
with all the learned counsel appearing in the case. In
fairness to them we must say that the order which we propose
to pass does not proceed from their consent though they have
helped to shape it.
(1) All persons appointed in accordance with any
of the modes of appointment prescribed by
rule 3 or rule 19(2) of the 1959 Rules must
be taken to have been appointed to the
regular cadre of the Central Engineering
Service. It will not be permissible to
classify them separately as ’pool’ officers
or other wise.
(2) Those whose appointments are not in
accordance with any of the modes of
appointment prescribed by rule 3 or rule
19(2) of the 1959 Rules, shall be taken to
have been appointed to ex-cadre
227
posts. Such persons may be classified into a
separate category from those referred to in
clause (1) above
(3) The Central Government will scrutinise the
cases of all persons involved in the present
proceedings, who have been placed in the
’pool’. The Government shall, upon such
scrutiny, decide whether the appointment in
each particular case was made in conformity
with rule 3 or rule 19(2) of the 1959 Rules.
All persons concerned may, if they so desire,
submit their representations to the
authorities concerned before 1st October,
1979. On consideration of the representations
and upon examination of the relevant
material, the Central Government shall make a
declaration before 1st January, 1980 whether
any and which appointment was in accordance
with rule 3 or rule 19(2) of the 1959 Rules
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and which was against the same. The
classification of the officers concerned
under clauses (1) and (2) above will depend
upon and be governed by the declaration to be
made by the Government.
(4) Cases of all persons, who according to the
declaration to be made by the Government are
wrongly placed in the ’pool’, shall be
reviewed by the Government or by the
appropriate authority as the case may be.
However, all promotions made prior to 31-5-
1974 will remain undisturbed. Promotions made
after that date shall be reviewed by the
appropriate authority, as expeditiously as
possible, in the light of the declarations
made by the Government so as to give to such
officers the promotions which are due to
them.
This order takes note of the grievance of those persons
also who have been placed in the ’pool’ but who contend that
they have been wrongly included therein, since their
appointments were in accordance with the 1959 Rules as they
stood at the time of their recruitment.
The Writ Petitions and the Appeal shall stand disposed
of in, terms of this order. There will be no order as to
costs.
N.V.K.
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