Full Judgment Text
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PETITIONER:
P.D. AGGARWAL & ORS.
Vs.
RESPONDENT:
STATE OF U.P. & ORS.
DATE OF JUDGMENT08/06/1987
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 1676 1987 SCR (3) 427
1987 SCC (3) 622 JT 1987 (2) 606
1987 SCALE (1)1283
ACT:
Constitution of India--Arts. 14 and 16--Validity of rr.
3(c), 5, 6 and 23 of the U.P. Service of Engineers (Build-
ings and Roads Branch), 1936 as amended by the Amendment
Rules of 1969 and 1971--Assistant Engineers substantively
appointed to temporary posts prior to the amendment of the
Rules are entitled to have their seniority reckoned from the
date of their appointment irrespective of the posts, held by
them remaining temporary--Rights vested in them under the
1936 Rules cannot be taken away by giving retrospective
effect to the Amendment Rules of 1969 and 1971.
HEADNOTE:
Rule 3(c) of the U.P. Service of Engineers (Buildings
and Roads Branch) Class II Rules, 1936 defined ’direct
recruitment’ or ’direct appointment’ as recruitment or
appointment of Assistant Engineers in the manner prescribed
in r. 5(i), (ii) and (iii) thereof, after consultation with
the Public Service Commission. Rule 6 empowered the Govern-
ment to decide in each case the source from which a vacancy
shall be filled up provided that 25% of the vacancies were
reserved for promotion of persons selected from subordinate
services. Rule 3(b) thereof defined a ’member of the serv-
ice’ as a government servant appointed in a substantive
capacity. Rule 23 stipulated that seniority in the service
shall be determined by the date of order of appointment to
the service.
By an Office Memorandum dated December 7, 1961, the
State Government laid down that direct recruitment to the
posts of Assistant Engineers would be made on the results of
a competitive examination conducted by the Commission, the
successful candidates being appointed in the order of merit
against vacant permanent posts and, those following, against
temporary posts. It was further laid down that while 50% of
the permanent vacancies in the Department would be filled by
direct recruitment, 25% of them would be filled by selection
from amongst the temporary Assistant Engineers recruited
through the Commission and for this purpose the temporary
Assistant Engineers already working in the Department who
were appointed on the advice of the Commission prior to the
introduction of the new scheme and who
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428
possessed the requisite qualifications were given relaxation
in the age limit upto 40 years for appearing in the competi-
tive examinations to be conducted by the Commission. As a
measure of further concession to the existing temporary
Assistant Engineers, it was provided that initially 50% of
the permanent vacancies would be filled up by selection of
temporary Assistant Engineers and only 25% thereof would be
filled up by direct recruitment. The competitive examina-
tions were held commencing from the year 1962.
On July 28, 1969, the State Government brought into
force the U.P. Service of Engineers (Buildings and Roads
Branch) Class II (Amendment) Rules, 1969 with retrospective
effect from March, 1962 amending inter alia rr: 3(b), 3(c),
5 and 6 of the 1936 Rules to bring them in line with the
scheme enunciated in the Office Memorandum dated December 7,
1961.
On November 26, 1971, r. 23 was amended by the U.P.
Service of Engineers (Buildings and Roads Branch) Class II
(Amendment) Rules, 1971 as under:
"Except as provided for hereunder seniority in
the service will be determined by the date of
order of appointment in a substantive
vacancy ...."
The competitive examinations for direct recruitment of
Assistant Engineers in accordance with the new Scheme were
held upto the year 1971 and were discontinued by the execu-
tive instruction contained in Office Memorandum dated June
23, 1972 as it was felt that the system had done more harm
than good to the service.
The respondents, who were directly recruited Assistant
Engineers appointed, after consultation with the Commission,
to temporary posts in the cadre upto 1961 challenged the
seniority list prepared in 1980 in terms of the Office
Memorandum dated December 7, 1961 and the Amendment Rules,
1969 and 1971 as violative of Arts. 14 and 16 of the Consti-
tution and prayed for determination of their seniority on
the basis of the length of their continuous service in terms
of the decision of this Court in Baleshwar Dass & Ors. v.
State of U.P. & Ors., [1981] 1 S.C.R. 449. The High Court
allowed the petitions and directed preparation of a fresh
seniority list by treating the appointments of respondents
as substantive appointments to the cadre. The appellants in
these appeals were those temporary Assistant Engineers
working in the Department who were selected for appointment
to permanent vacancies
429
on the results of the competitive examinations held by the
Commission.
Dismissing the appeal, this Court,
HELD: There is no controversy that all those Assistant
Engineers who were substantively appointed to temporary
posts in consultation with the Commission and had been
rendering their service for long years till 1961 have become
members of the service in accordance with the provisions of
the Rules. Therefore, on the basis of r. 23 as it was before
the amendment made in 1971, these Assistant Engineers are
entitled to have their seniority reckoned from the date of
their being members of the service, no matter whether they
are holding posts which remain as temporary for years to-
gether. The direct recruits appointed on the basis of the
examination held under the amended Rules cannot encroach
upon their rights in the matter of determination of their
seniority. [442E-H]
2. This Court, in Baleshwar Dass & Ors. v. State of U.
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P. & Ors., [1981] 1 S.C.R. 449, while holding that Office
Memorandum dated December 7, 1961 was not arbitrary in so
far as it fixed the proportion of permanent vacancies to be
filled from various sources, observed that this scheme of
1961 could not stand in isolation and had to be read as
subordinate to the 1936 Rules. Hence, the aforesaid Office
Memorandum does not affect the petitioners who have become
members of the service and are entitled to have their sen-
iority reckoned from the date of their being members of the
service in accordance with r. 23 of the 1936 Rules. [440G-H;
441A-B]
3. The effect of the amendments made in rr. 3(b), 3(c),
5 and 6 is that Assistant Engineers who have become members
of the Service being appointed substantively in temporary
posts will no longer be members of the service and will have
to wait till they are selected and appointed as Assistant
Engineers under r. 5(a)(ii) against quota fixed by r. 6 for
this purpose. This creates serious prejudice to them and it
also creates uncertainty as to when they will be selected
and appointed against the quota set up for such selection
under r. 5(a)(ii). The amended r. 23 lays down that seniori-
ty will be determined from the date of order of appointment
in substantive vacancy. These provisions have been made
retrospectively effective from March 1, 1962 to the existing
officers i.e., the respondents appointed substantively
against temporary vacancies. Such retrospective amendments
cannot take away the vested rights. [444H; A-B]
430
T.R. Kapur v. State of Haryana & Ors., JT (1986) S.C.
1092; E.P. Royappa v. State of Tamil Nadu, A.I.R. 1974 S.C.
555 and Maneka Gandhi v. Union of India, A.I.R. 1978 S.C.
597; relied on.
4. The Assistant Engineers who have already become
members of the service on being appointed substantively
against temporary posts have already acquired the benefit of
1936 Rules for having their seniority computed from the date
of their becoming members of the service. The Amendment
Rules, 1969 and 1971 take away this right of these temporary
Assistant Engineers by expressly providing that those As-
sistant Engineers who are selected and appointed in perma-
nent vacancies against 50% quota provided by amended r. 6
will only be considered for the purpose of computation of
seniority from the date of their appointment against perma-
nent vacancies. Therefore, the temporary Assistant Engineers
are not only deprived of their seniority but they are driven
to a very peculiar position inasmuch as they have to wait
until they are selected and appointed against permanent
vacancies in the quota set up for this purpose by the amend-
ed r. 6. There are about 200 Assistant Engineers who have
been appointed substantively by the Government with the
approval of the Public Service Commission before the en-
forcement of 1969 Rules. The direct recruits appointed on
the basis of the examination against permanent vacancies
will get precedence over Assistant Engineers appointed in
the matter of determination of their seniority in the cadre
of Assistant Engineers on the basis of changed Rules, par-
ticularly amended r. 23, which takes into account only
appointments in substantive vacancies. The 1969 and 1971
Amendments in effect take away from the officers appointed
to the temporary posts after selection by the Public Service
Commission, the substantive character of their appointment.
These amendments are not only disadvantageous to the future
recruits against temporary vacancies but they were made
applicable retrospectively from March 1, 1962 even to exist-
ing officers recruited against temporary vacancies through
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Public Service Commission. The Government has power to make
retrospective amendments to the Rules but if the Rules
purport to take away the vested rights and are arbitrary and
not reasonable then such retrospective amendments are sub-
ject to judicial scrutiny. [446B-H; 447A-C]
S.B. Patwardhan v. State of Maharashtra, [1977] 3 S.C.R.
775, referred to.
5. The Office Memorandum dated December 7, 1961 which
purports to amend the U.P. Service of Engineers (Buildings
and Roads Branch) Class II Rules, 1936 cannot override,
amend or supersede
431
statutory rules as it is nothing but an administrative order
or instruction. The temporary Assistant Engineers who have
become members of the service after being selected by the
Public Service Commission in accordance with the service
rules are entitled to have their seniority reckoned in
accordance with the provisions of r. 23 as it was then, from
the date of their becoming members of the service, and this
cannot be taken away by giving retrospective effect to the
Amendment Rules of 1969 and 1971 as it is arbitrary, irra-
tional and not reasonable. [448B-D]
Sant Ram Sharma v. State of Rajasthan & Anr., [1968] 1
S.C.R. 111, referred to.
6. The Amendment Rules of 1969 read with the Amendment
Rules of 1971 adversely affect the rights of the Assistant
Engineers appointed to substantive posts prior to the intro-
duction of these amended Rules and create fetters for the
long years of service being ever considered for reckoning of
seniority in the cadre of Assistant Engineers. For promotion
from Assistant Engineer to the post of Executive Engineer
seniority-cum-merit is the criterion. These temporary As-
sistant Engineers, unless they are selected to the 50% quota
in permanent vacancies reserved for promotion from the
Assistant Engineers appointed to temporary posts, will never
have their service reckoned for determination of seniority
in the cadre. The respondents were appointed long before the
appointment of appellants as Assistant Engineers in perma-
nent vacancies. The appointment of respondents has been made
in consultation with the Public Service Commission and
according to the decision in Baleshwar Dass’s case the
respondent having become members of the Service they are
deemed to be appointed substantively in temporary posts.
Therefore, the amended Rules, more particularly rr. 3(c), 5
and 6 of 1969 Rules as well as r. 23 of 1971 amended Rules
are wholly arbitrary and discriminatory and are violative of
Arts. 14 and 16 of the Constitution. [448E; F; 449A-B]
Mohammad Shujat Ali & Ors. v. Union of India & Ors.,
[1975] 1 S.C.R. 449, referred to.
7. The argument that the Amendment Rules were framed to
attract meritorious and talented engineers in the U.P.
Service of Engineers (Buildings and Roads Branch) as there
were very little prospects of promotion for such Assistant
Engineers to be promoted to the higher posts owing to the
large number of Assistant Engineers appointed to temporary
posts cannot be sustained, firstly, because it
432
seriously prejudices the rights of the Assistant Engineers
appointed substantively to the temporary posts and working
as Assistant Engineers for a number of years and secondly,
because this process of direct recruitment against permanent
vacancies was discontinued after 1971 as it worked injustice
and had led to patent discrimination. [449C-F]
8. When recruitments to a particular service are made
from more than one source, quota and rota may be introduced
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consistent with the equality clause envisaged in Arts. 14
and 16 of the Constitution. In the instant case all the
Assistant Engineers whether appointed in a temporary post of
the cadre or in the permanent post of the cadre are recruit-
ed directly from graduates in Civil Engineering. The only
difference is that due to exigencies of service a large
number of Assistant Engineers were recruited against tempo-
rary vacancies. Under the 1936 Rules the Assistant Engineers
appointed against temporary vacancies became members of the
Service under the then r. 3 and they were eligible for their
seniority being reckoned from the date of their becoming
members of the service. The impugned Rules of 1969 and 1971
purport to take away or to cruelly cut off the long years of
valuable service rendered by these Assistant Engineers only
on the pretext of appointment against permanent posts. These
temporary Assistant Engineers after introduction of the
amended Rules have been relegated to a very uncertain posi-
tion as to when they will be selected against permanent
vacancies by the Commission in the 50% quota provided under
r. 6 of the amended Rules to become members of service and
to have their seniority reckoned. The fate of those Assist-
ant Engineers who are selected and appointed in temporary
posts on the basis of the results of the examination is also
very uncertain inasmuch as they will be considered for
selection by the Commission against the quota for temporary
Assistant Engineers after the Assistant Engineers appointed
before them are all considered for selection in the said
quota set up for the temporary Assistant Engineers in perma-
nent vacancies even though they have been appointed through
the same process of examination. Considering all these
circumstances we are constrained to hold that the impugned
rr. 3(c), 5 and 6 of the 1969 Rules and r. 23 of the 1971
Rules are arbitrary, irrational and unreasonable infringing
Arts. 14 and 16 of the Constitution. [451G-H; 452A-F]
Narender Chadha v. Union of India & Ors., [1986] 1
S.C.J. 307, referred to.
State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1
S.C.R. 771, distinguished.
433
9. Purely ad hoc employees or employees on purely offi-
ciating basis or employees purely for a temporary period in
the cadre of Assistant Engineer, being not members of the
service in accordance with the service rules, are not enti-
tled to have the benefit of their such adventitious, purely
ad hoc and temporary service being reckoned for determina-
tion of seniority unless and until they become members of
the service in accordance with the provisions of service
rules. Only those ad hoc appointees whose services have been
regularised by the regularisation rules framed under proviso
to Art. 309 of the Constitution after being duly selected by
the Selection Committee and becoming members of the Service,
will be entitled to seniority only from the date of order of
appointment after selection in accordance with those regula-
tions as provided in r. 7 of the Regulations. [453H, 454A-C]
Ashok Gulati and Ors. v. D.S. Jain & Ors., A.I.R. 1987
S.C. 424 and State of Gujarat v.C.G. Desai, [1974] 2
S .C .R. 255, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 622625
of 1982.
From the Judgment and Order dated 14.1.82 of the Allaha-
bad High Court in W.P. Nos. 3387/79, 3327, 2829/80 and
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747/81.
Shobha Dixit, S. Markandeya, M.N. Shroff, Anil Kumar
Gupta. A.K. Sanghi, V.J. Francis, P.D. Sharma, A.K. Panda,
Sunil Kumar Jain and R.B. Mehrotra for the appearing par-
ties.
The Judgment of the Court was delivered by
B.C. RAY, J. These appeals by special leave are against
the common judgment and order dated 14.1.1982 quashing the
seniority list in the cadre of Assistant Engineers in the
United Provinces (Buildings & Roads Branch) Class II pre-
pared on 29.7.1980 and 18.12.1980 with 19.12.1980. A writ of
mandamus was also issued to the State Government for prepa-
ration of fresh seniority list in respect of Assistant
Engineers in the Civil Engineering Wing and Electrical and
Mechanical Wing respectively in accordance with the guide-
lines mentioned in the said judgment. The facts giving rise
to these writ petitions are in brief as follows:-
Previously Public Health Department as well as the
Irrigation Department of the Government of Uttar Pradesh
were integrated into Public Works Department comprising both
these two branches. In
434
1922 Irrigation branch was separated into a different inde-
pendent department. Similarly, in 1927 Public Health Depart-
ment was separated. In 1936 U.P. Service of Engineers Class
II Rules (Buildings and Roads Branch) pertaining to P.W.D.
were framed in exercise of powers conferred under the Gov-
ernment of India Act. Identical rules also governed the
Irrigation Department. Before entering into the controversy
that has been raised in the instant appeal it is appropriate
to refer to the relevant provisions of the said rules. Rule
3(b) defines ’Member of the Service’ as a Government servant
appointed in substantive capacity, under the provisions of
these rules or of rules in force previous to the introduc-
tion in the cadres of the service. Clause (c) defines
’Direct recruitment’ or ’Direct appointment’ as recruitment
or appointment in the manner prescribed in rule 5(i), (ii)
and (iii) of these rules. In Rule 4 which is captioned as
‘Strength of Cadre’ it is mentioned in clause (ii) of the
said rule that the Government may increase the cadre by
creating permanent or temporary posts from time to time as
may be found necessary. Rule 5 lays down five sources of
recruitment:
(i) by direct appointment from amongst
engineer students who have passed out of
Thomson Civil Engineering College, Roorkee,
and who have completed a course of training in
the Buildings and Roads Branch as engineer
students after consulting the Public Service
Commission;
(ii) by the appointment after (sic)
advertisement and after consulting the Public
Service Commission;
(iii) by the appointment of officers in the
temporary service of the United Provinces
Public Works Department, Buildings and Roads
Branch, after consulting the Public Service
Commission; provided that it will not be
necessary to consult the Commission in the
case of appointment of a temporary officer to
a permanent vacancy if he has already been
appointed to a temporary post in the cadre of
service after consultation with the
Commission.
(iv) by promotion of members of the United
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Provinces Subordinate Engineering Service in
the Public Works Department, Buildings and
Roads Branch, who have shown exceptional
merits;
(v) by promotion of computers in the Public
Works Depart-
435
ment, Buildings and Roads Branch, who have
shown exceptional merit and who are
technically qualified.
It has been specifically provided in Rule 6 that the
Government will decide in each ’case the source from which a
vacancy shall be filled up provided that 25% of the vacan-
cies shall be reserved for selected qualified members of the
Subordinate Engineering Service and Computers. It thus
provides that barring 25% of the vacancies to be filled by
promotion from Engineering Subordinate Services and Comput-
ers, the remaining 75% of the vacancies are to be filled up
by direct recruitment as provided in sub-clause (ii) and
(iii) of Rule 5.
Rule 17 which is termed as ’Probation’ specifically
provides that all persons appointed to the service, who are
not already in the permanent employ of the Buildings and
Roads Branch of the United Provinces Government, shall be
placed on probation for four years, provided that such of
them as have undergone training as engineer students, or
have served as temporary engineers in the Buildings .and
Roads Branch of the United Provinces Government, may be
permitted to count the period of such training and service,
respectively towards this period of probation.
Rule 19 deals with confirmation of probationers. It
mentions that a probationer shall be confirmed in his ap-
pointment after he has completed the prescribed period of
probation, has passed all the tests prescribed in the rules
and the Government is satisfied that he is fit for confirma-
tion. It also provides therein that all confirmations under
this rule shall be notified in the United Provinces Gazette.
Rule 23 states that seniority in the service shall be
determined according to the date of order of appointment to
it provided that if the order of appointment of two or more
candidates bears the same date, their seniority inter-se
shall be determined according to the order in which their
appointment has been notified.
On December 7, 1961 an office memorandum No. 4162 EBR
XXIII-PWD-90 EBR 1954 was issued by the Government laying
down the principles for recruitment to the permanent and
temporary posts. It is stated therein that in future direct
recruitment to both permanent and temporary vacancies of
Assistant Engineers (Civil, Electrical and Mechanical) in
the Public Works, Irrigation and Local Self Government
Engineering Departments, will be made on the results of
competitive examination to be conducted by the Public Serv-
ice Commis-
436
sion. Candidates possessing technical and other qualifica-
tions prescribed in the rules for the Uttar Pradesh Service
of Engineers in the Departments concerned will be eligible
to appear at the examination for that particular service. It
has been further provided therein that successful candidates
in order of merit will be appointed on probation against
vacant permanent posts and those following will be appointed
against temporary posts. It also lays down the manner of
filling up the vacancies in the permanent cadre of the
service of Assistant Engineers in the Irrigation Department
as well as in the PWD Department. In PWD Department 50% of
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the vacancies in the permanent cadre will be filled up
through competitive examination, 25% by promotion from
amongst overseers and computers and 25% by selection from
amongst temporary Assistant Engineers recruited through the
Commission. It has been further provided that as a measure
of concession to the existing temporary Assistant Engineers
who were recruited as temporary Assistant Engineers on the
advice of the Public Service Commission prior to the intro-
duction of this scheme, the distribution of vacancies in the
permanent cadre of Assistant Engineers will be 25% by direct
recruitment through competitive examination; 25% by promo-
tion from subordinate service and 50% by selection from
amongst existing temporary Assistant Engineers. It has also
been provided that the Government may in consultation with
the Public Service Commission increase or decrease the
percentage fixed for recruitment by selection and competi-
tive examination in any particular year. In para 7 of the
said memorandum it has been provided that temporary and
officiating Assistant Engineers possessing the requisite
technical qualifications will be eligible to appear in the
competitive examinations and the maximum age limit in the
case of those working in the department with the approval of
the Commission, or after having been recruited by the Com-
mission will be 40 years.
Thereafter on 28.7.1969 an amendment to the Rule was
made by the Government in exercise of power under proviso to
Article 309 of the Constitution. This is known as the United
Provinces Service of Engineers (Buildings and Roads Branch),
Class II (Amendment) Rules, 1969. These rules shall be
deemed to have been in force since March, 1962. The relevant
provisions of these Rules are quoted hereinbelow:-
Rule 3: In these rules unless there is anything repugnant in
the subject or context:-
(a) The ’Service’ means the U.P. Service of
Engineers (Build-
437
ings and Roads Branch), Class II,
(b) ’Member of the Service’ means a
government servant appointed in a substantive
capacity, under the provisions of these rules
or of rules in force previous to the introduc-
tion of these rules to a post in the cadre of
the service.
(c) ’Direct recruitment’ or ’Direct
appointment’ means recruitment or appointment
in the manner prescribed in rule (5)(a) (i)
and 5(b)(1);
(d) ’Commission’ means the Uttar Pradesh
Public Service Commission;
(e) ’Department’ means the Public Works
Department, Uttar Pradesh;
(f) ’Governor’ means the Governor of Uttar
Pradesh.
(g) ’Secretary’ means the Secretary to
Government Public Works Department, Uttar
Pradesh;
(h) ’Chief Engineer’ means the Chief
Engineer, Public Works Department, Uttar
Pradesh.
(i) ’Period of recruitment’ means the
period upto the end of December in the
calendar year succeeding year in which the
recruitment or selection is made;
(j) ’Citizen of India’ means a person who
is or is seemed to be citizen of India under
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Part II of the Constitution of India;
(k) ’Government means the Government of Uttar
Pradesh.
Rule 5: Source of recruitment:-
Recruitment to the post of Assistant Engineer
shall be made from the following sources-
(a) in permanent vacancies-
(i) by direct recruitment on the result of
a competitive examination conducted by the
Commission;
438
(ii) by selection from amongst the Officers
appointed as Assistant Engineer by direct
recruitment through the Commission and working
in temporary or officiating vacancies in the
department;
(iii) by promotion of members of the Public
Works Department, Subordinate Engineering
Service and the Public Works Department
’Computers’ Service.
(b) in officiating or temporary vacancies--
(i) by direct recruitment on the result of
a competitive examination conducted by the
Commission;
(ii) by promotion of members of the Public
Works Department, Subordinate Engineering
Service, and Public Works Department Computers
Service.
Rule 6: Number to be recruited from each
source--The Governor shall decide the number
of appointments to be made at each selection
in each kind of post from the sources speci-
fied in rule 5:
Provided that recruitment in substantive
vacancies occurring during a period of
recruitment in the post of Assistant Engineer,
shall, so far as may be possible, be made from
the source mentioned in rule 5(a) in the
following proportion:-
(a) Fifty per cent of the vacancies shall
be filled by direct recruitment on the results
for a competitive examination under rule
5(a)(i);
(b) Twenty five per cent of the vacancies
shall be filled from the source specified in
rule 5(a)(ii).
(c) Twenty-five per cent of the vacancies
shall be filled from the source specified in
rule 5(a)(iii) which shall be shared by
members of the Public Works Department
Subordinate Engineering Service and the Public
Works Department Computers’ Service in
approximate proportion of permanent strength
of their respective cadres at the time of
selection:
Provided further that with a view to giving
facility to tempor-
439
ary Assistant Engineers recruited in the
Department in consultation with the Commission
up to the date Commencement of the first
competitive examination in accordance with
these rules, the proportion of vacancies to be
filled from the three sources mentioned in the
first proviso shall be 25 per cent, 50 per
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cent and 25 per cent respectively subject to
review at the discretion of the Government in
consultation with the Commission.
Explanation--The vacancies from the source
mentioned in rule 5(a)(ii) will, until further
orders, be filled from amongst those temporary
Assistant Engineers only who were recruited in
the Department in consultation with the
Commission and were working in this capacity
on the date of commencement of first
competitive examination:
Provided also that recruitment to temporary or
officiating vacancies in the posts of
Assistant Engineers by promotion from the
source mentioned in rule 5(b)(ii) shall be
made up to 25 per cent of the vacancies,
occurring during any one period of recruitment
in the same proportion as in clause (c) of the
first proviso and the remaining vacancies
shall be filled by direct recruitment under
rule 5(b)(i).
NOTE--The distribution of vacancies in the
permanent cadre in the above manner will be
subject to the condition that the Governor, in
consultation with the Commission may, for
special reasons, increase or decrease the
percentage fixed for recruitment by selection
and competitive examination in any particular
period of recruitment.
On November 26, 1971 a further amendment to the U.P.
Service of Engineers (Buildings and Roads Branch), Class II
Rules has been brought in and these rules are called U.P.
Service of Engineers (Buildings and Roads Branch) Class II
(Amendment) Rules, 1971. Rule 23 which deals with seniority
has been substituted. The relevant portion of Rule 23 is
quoted hereunder:-
"Except as provided for hereunder seniority in
the service will be determined by the date of
order of appointment in a substantive
vacancy .................................
On the basis of these amended rules of 1969 and 1971 exami-
na-
440
tions were held and the successful candidates in the said
examinations were appointed to the permanent posts and they
were placed on probation. These appointees were called
direct recruits in short ’D’ category. The petitioner Nos.
1, 2 and 4 who are appellants here in these appeals are
those direct recruits. The appellant Nos. 1 and 2 who were
working in the PWD as temporary Assistant Engineers after
selection by the Commission were successful in 1962 competi-
tion for appointment against permanent posts. The Appellant
No. 3 who was also working as temporary Assistant Engineer
in the PWD after selection by the Public Service Commission
in 1962 also competed in the examination held in 1964 for
appointment against a permanent post. The appellant No. 4
who was working in the Irrigation Department after selection
by the Commission in 1962 was successful for appointment
against one of the permanent posts in PWD through 1964
competitive examination. It may be mentioned in this connec-
tion that the first competitive examination was held in 1962
on the basis of the memorandum dated December 7, 1961. The
next examination was held in 1964. Similar examinations were
held thereafter till 1971 in accordance with the amended
Rules. The Shukla Committee in para 36 of its report ob-
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served that "the System had done more harm than good to the
Service" and ultimately recommended that in future such
direct recruitment for permanent posts should be discontin-
ued. No examinations were held in 1963. After 1971 the
recruitment by this method was discontinued by executive
instructions issued in 1972 vide Office Memorandum dated
23.6.1972 (Annexure C2 to the counter affidavit of S.C.
Gupta dated 23.1.81 in Writ Petition No. 3327 of 1980 Syed
Masood Tagi Zaidi v. State of U.P. ) This was followed by
another order dated 8.6. 1973 (Annexure C-3 ibid) stopping
direct promotion against permanent vacancies. These deci-
sions were taken on the basis of the recommendations of
Shukla Committee’s Report.
The respondents are the directly recruited Assistant
Civil Engineers in the Buildings and Roads Branch pursuant
to the provisions of Rule 5(a)(ii) in the temporary posts of
the cadre upto 1961 after consultation with the Public
Service Commission. These temporary Assistant Engineers who
are working continuously since the date of their appointment
in the cadre of Assistant Engineers have questioned the
seniority list of Assistant Engineers made by the Government
in 1980 pursuant to the Office Memorandum dated December 7,
1961 and U.P. Engineering Service (Amendment) Rules of 1969
and 1971 on the grounds that they are arbitrary and discrim-
inatory being violative of Articles 14 and 16 of the Consti-
tution. These amended rules have been challenged further on
the ground that these
441
rules adversely affect their service conditions and as such
prayed for quashing of the seniority list and for determina-
tion of their seniority on the basis of the decision ren-
dered by this Court in Baleshwar Dass & Ors. v. State of U.
P. & Ors., [1981] 1 SCR 449 on the basis of the length of
their continuous service since the date of their becoming
member of the service in accordance with the provisions of
the 1936 rules. The High Court of Allahabad allowed these
Writ Petitions and quashed the 1980 seniority list directing
to prepare a seniority list after taking the appointments of
officers to the service after selection by Public Service
Commission to be substantive appointments to the cadre.
Against this judgment and order the above appeals on
special leave have been preferred to this Court. The only
question that falls for consideration is the determination
of seniority of Assistant Engineers in the cadre of the
service within the meaning of Rule 3(b) of U.P. Service of
Engineers (Buildings and Roads Branch) Class II (Amendment)
Rules. It appears that a similar question about the yard-
stick for determination of seniority between the Assistant
Engineers appointed substantively to temporary posts of the
cadre and those Assistant Engineers appointed against the
permanent posts on probation and confirmed in the said post,
came up for consideration before this Court in Civil Appeal
No. 1717 of 1981. In that appeal we have already considered
this aspect of the case and relying on the decision in
Baleshwar Dass & Ors. v. State of U.P & Ors. and N.K. Chau-
han & Ors. v. State of Gujarat & Ors. etc., [1977] 1 SCR
1037 we have held that since the cadre of the service of
engineers consists of both temporary and permanent posts and
as such there can be substantive appointments against tempo-
rary posts of the cadre in accordance with the provisions of
the Service Rules. When a temporary Assistant Engineer is
selected and appointed by the Government with the approval
of the Public Service Commission after fulfilment of all the
tests presented in the said rules, he shall be deemed to be
member of the service and as such the entire length of
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service from the date of his becoming member of the service
has to be reckoned in computing the seniority of the Assist-
ant Engineers appointed substantively to temporary posts in
the service in accordance with the provisions of Rule 23 as
it was prior to its amendment by 1971 Rules. We have also
held that on the plea of not being confirmed, the long years
of service rendered by an Assistant Engineer though appoint-
ed to a temporary post substantively cannot be arbitrarily
cut off and excluded in determining seniority.
442
Before proceeding to consider the merits of the contro-
versy raised in this appeal it is pertinent to deal with the
preliminary objections raised on behalf of the appellants
that the validity of rules of 1969 and 197 1 was not chal-
lenged by T category officers or by the ad hoc officers at
any time prior to the filing of the present writ
petitions .out of which the instant appeals on special leave
have arisen and as such the writ petitions should be dis-
missed on the ground of undue delay and laches. This objec-
tion was elaborately dealt with by the High Court in its
judgment’ and it was held that there was no such undue delay
and laches which can be considered to be a bar for consider-
ing the writ petitions. It appears that the seniority list
of 1971 that was prepared following 1969 and 1971 rules was
challenged by some ’D’ category officers in Civil Writ
Petition No. 3734 of 1969 (V. C. Aggarwal v. State of U.P. &
Ors.). That petition was allowed and the seniority list of
1971 was quashed. The Government was directed to prepare a
fresh seniority list in accordance with law after adjusting
the recruitment for the period 1962 to 1966 in accordance
with the quota rule. Against that judgment two special
appeals were filed being Nos. 634 and 629 of 1972. These
appeals were allowed in part. Against that judgment the
Government alone came to this Court in SLP(C) No. 951 of
1975. This special leave petition was dismissed on 8.9.
1975. Thereafter the impugned list was published in 1980 and
it was supplemented on the 18th and 19th December, 1980. In
these circumstances we are unable to hold that there has
been undue delay and laches on the part of temporary Assist-
ant Engineers to challenge the aforesaid amended rules and
as such there is no merit in this contention.
In the instant appeal there is no controversy that all
the temporary Assistant Engineers who were appointed in
consultation with the Public Service Commission by the
Government and bad been rendering their services for long
years since 1956 till 1961 when the said notification has
been made by the Government have become members of the
service in accordance with the provisions of the rules.
Therefore on the basis of the provisions of rule 23 as it
was before the amendment made in 197 1 these temporary
Assistant Engineers are legally entitled to have their
seniority reckoned from the date of their being member of
the service no matter whether they are holding posts which
remain as temporary for years together. It is quite clear
that there are about 200 Assistant Engineers who have been
appointed substantively by the Government with the approval
of the Public Service Commission and as such the direct
recruits appointed on the basis of the examination held
under the 1969 rules cannot in any manner whatsoever en-
croach upon the rights of these substantively appointed
Assistant Engineers
443
to temporary posts in the matter of determination of their
seniority in the said cadre of Assistant Engineers.
The Office Memorandum dated December 7, 1961 introduces
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quotas for filling up vacancies in the cadre of Assistant
Engineers in the Public Works Department as well as Irriga-
tion and Local Self Government Engineering Departments by
providing direct recruitment through competitive examination
to both permanent and temporary vacancies of Assistant
Engineers (Civil, Electrical and Mechanical). It has been
provided therein that the quota of 50% of the vacancies in
the cadre of Assistant Engineers in a year will be filled by
direct recruits through competitive examination as well as
it provides 25% of the permanent posts to be filled up by
selection from amongst temporary Assistant Engineers re-
cruited through the Commission. As a concession however, it
has provided that the quota of direct recruits through
competitive examination will be 25% instead of 50% as there
are large number of temporary Assistant Engineers from whom
the selection can be made to the vacancies in the permanent
posts of Assistant Engineers by selection. This memorandum
has subsequently been incorporated in the amended rules of
U.P. Service of Engineers 1969. In Rule 5 of the said Rules
provision has been made for direct recruitment both in
permanent vacancies as well as in officiating or temporary
vacancies on the basis of competitive examination conducted
by the Public Service Commission and the criteria laid down
is that those who are more meritorious judged by the result
of the examination and occupy higher place will be recruited
to the permanent vacancies whereas others less meritorious
judged by their performance in the competitive examination
will be recruited to the post of officiating or temporary
vacancies of Assistant Engineers. It has also been provided
therein that the temporary Assistant Engineers already
recruited in the department in consultation with the Commis-
sion will. be permitted to compete in the examination and if
they can do well in the competitive examination then they
may be appointed in the permanent posts of Assistant Engi-
neers. This rule if considered properly will clearly show
that direct recruits against permanent vacancies on the
basis of the competitive examination will score a march over
the Assistant Engineers who have been appointed substantive-
ly in temporary posts of the cadre and have become members
of the service. They will be deprived of having their serv-
ices reckoned from the date of their substantive appointment
to temporary posts for the purpose of determination of
seniority. In accordance with the provisions of Rule 23 of
the amended rules of 1971 which has been substituted for the
old rules of 1936 seniority in the service has to be deter-
mined by the date
444
of order of appointment in a substantive vacancy. As a
result this rule expressly debars Assistant Engineers who
have been appointed long before the appointment of the
direct recruits under the amended rules of 1969 to have
their long years of service as Assistant Engineers after
being appointed substantively and after being members of the
service fulfilling all the tests prescribed within the
meaning of rule 3 of the rules of 1936 and also under rule
3(b) as amended by the 1969 amendment to be left out in
fixation of seniority. In other words these temporary As-
sistant Engineers will ever remain temporary though they
have been rendering identical service for long years and
having same educational qualification and long experience in
the service.
This memorandum dated 7.12.1961 was considered in Ba-
leshwar Dass’s case by this Court and it was held that this
G.O. was not arbitrary insofar as it fixes the proportion of
permanent vacancies to be filled from various sources, and
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it has statutory force being under Rule 6. It has also been
observed that:
"The office memorandum makes it clear that
direct recruitments will be made to both
permanent and temporary vacancies of Assistant
Engineers. But this scheme of 1961 cannot
stand in isolation and has to be read as
subordinate to the 1936 Rules. After all, the
196 1 Memorandum cannot override the Rules
which are valid under Article 3 13, and so
must be treated as filling the gaps, not
flouting the provisions."
Hence the said O.M. does not affect the petitioners who have
become members of the Service and are entitled to have their
seniority reckoned from the date of their being members of
the Service according to Rule 23 of the 1936 Rules. The 1969
Rules and 197 1 Rules have however, affected the rights of
the respondents who have become members of the Service being
substantively appointed in temporary posts as Assistant
Engineers inasmuch as there has been an amendment effected
in Rule 3(b) by providing that a member of the Service meant
a Government servant appointed in a substantive capacity to
a post in the cadre of the Service. Rule 3(c) also amends
the earlier provisions by meaning direct recruitment as in
the manner prescribed in Rule 5(a)(i) and 5(b)(i). Similar
amendments have been made in Rule 5 and 6. The effect of
these amendments is that Assistant Engineers who have become
members of the Service being appointed substantively in
temporary posts will no longer be members of the service and
will have to wait till they are selected and appointed as
Assistant
445
Engineers under Rule 5(a)(ii) against quota fixed by Rule 6
for this purpose. This creates serious prejudice to them and
it also creates uncertainty as to when they will be selected
and appointed against the quota set up for such selection
under Rule 5(a)(ii). The amended Rule 23 lays down that
seniority will be determined from the date of order of
appointment in substantive vacancy. These amended provisions
have been made retrospectively effective from March 1, 1962
to the existing officers i.e. the respondents appointed
substantively against temporary vacancies. It has been urged
that Government has the power to amend rules retrospectively
and such rules are quite valid. Several decisions have been
cited of this Court at the Bar. Undoubtedly the Government
has got the power under proviso to Article 309 of Constitu-
tion to make rules and amend the rules giving retrospective
effect. Nevertheless, such retrospective amendments cannot
take away the vested rights and the amendments must be
reasonable, not arbitrary or discriminatory violating Arti-
cles 14 and 16 of the Constitution.
"It is well-settled that the power to frame rules to
regulate the conditions of service under the proviso to Art.
309 of the Constitution carries with it the power to amend
or alter the rules with a retrospective effect: B.S. Vadhera
v. Union of India, [1968] 3 SCR 575; Raj Kumar v. Union of
India, [1975] 3 SCR 963; K. Nagraj & Ors. v. State of A.P. &
Anr., [1985] 1 SCC 523 and State of J & K v. Triloki Nath
Khosla & Ors., [1974] 1 SCR 77 1. It is equally well-settled
that any rule which affects the right of a person to be
considered for promotion is a condition of service although
mere chances of promotion may not be. It may further be
stated that an authority competent to lay down qualifica-
tions for promotion, is also competent to change the quali-
fications. The rules defining qualifications and suitability
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for promotion are conditions of service and they can be
changed retrospectively. This rule is however subject to a
well-recognised principle that the benefits required under
the existing rules cannot be taken away by an amendment with
retrospective effect, that is to say, there is no power to
make such a rule under the proviso to Art. 309 which affects
or impairs vested rights. Therefore, unless it is specifi-
cally provided in the rules, the employees who are already
promoted before the amendment of the rules, cannot be re-
verted and their promotions cannot be recalled. In other
words, such rules laying down qualifications for promotion
made with retrospective effect must necessarily satisfy the
tests of Arts. 14 and 16(1) of the Constitution."
The above observations have been made by this Court in
the case of T.R. Kapur v. State of Haryana & Ors., JT 1986
(SC) 1092 at 1101
446
(in which one of us was a party). It has been held by this
Court in E.P. Ravappa v. State of Tamil Nadu, AIR 1974 (SC)
555 at 583 and Maneka Gandhi v. Union of India, AIR 1978
(SC) 597 at 624 that there should not be arbitrariness in
State action and the State action must ensure fairness and
equality of treatment. It is open to judicial review whether
any rule or provision of any Act has violated the principles
of equality and non-arbitrariness and thereby invaded the
rights of citizens guaranteed under Arts. 14 and 16 of the
Constitution. As has been stated hereinbefore the Assistant
Engineers who have already become members of the Service on
being appointed substantively against temporary posts have
already acquired the benefit of 1936 rules for having their
seniority computed from the date of their becoming members
of the Service. 1969 and 197 1 Amended Rules take away this
right of these temporary Assistant Engineers by expressly
providing that those Assistant Engineers who are selected
and appointed in permanent vacancies against 50% quota
provided by Rule 6 of the amended 1969 Rules will only be
considered for the purpose of computation of seniority from
the date of their appointment against permanent vacancies.
Therefore the temporary Assistant Engineers are not only
deprived of the right that accrued to them in the matter of
determination of their seniority but they are driven to a
very peculiar position inasmuch as they are to wait until
they are selected and appointed against permanent vacancies
in the quota set up for this purpose by the amended Rule 6.
The direct recruits on the basis of the competitive examina-
tion conducted by the Commission and appointed against
permanent vacancies on probation will supersede the rights
that accrued under the unamended rules to the temporary
Assistant Engineers having precedences in the matter of
determination of their seniority from the date of their
appointment against permanent vacancies. In other words, the
Assistant Engineers appointed substantively against tempo-
rary posts several years before the direct recruits and
working in the posts of Assistant Engineers will be pushed
down to the direct recruits against permanent vacancies. It
is also evident that there are about 200 Assistant Engineers
who have been appointed substantively by the Government with
the approval of the Public Service Commission before the
enforcement of 1969 rules. The direct recruits appointed on
the basis of the examination against permanent vacancies
will get precedence over Assistant Engineers appointed in
the matter of determination of their seniority in the cadre
of Assistant Engineers on the basis of changed rules, par-
ticularly new Rule 23 which takes into account only appoint-
ments in substantive vacancies. Thus appointments made under
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Rule 5(b)(i) are to be treated as temporary i.e. ’T’ catego-
ry officers and their such services will not be
447
taken into consideration in determining seniority until they
are selected and appointed to permanent posts under Rule
5(a)(ii). Note I to Rule 23 made it clear that an appoint-
ment made substantively on probation against a clear vacancy
in a permanent post will be treated as substantive appoint-
ment. Thus the 1969 and 1971 amendments in effect take away
from the officers appointed to the temporary posts in the
cadre through Public Service Commission, i.e. after selec-
tion by Public Service Commission, the substantive character
of their appointment. These amendments are not only disad-
vantageous to the future recruits against temporary vacan-
cies but they were made applicable retrospectively from
1.3.1962 even to existing officers recruited against tempo-
rary vacancies through Public Service Commission. As has
been stated hereinbefore that the Government has power to
make retrospective amendments to the Rules but if the Rules
purport to take away the vested rights and are arbitrary and
not reasonable then such retrospective amendments are sub-
ject to judicial scrutiny if they have infringed Arts. 14
and 16 of the Constitution.
In the case of S.B. Patwardhan v. State of Maharashtra.
[1977] 3 SCR 775 at 778 Rule 8(iii) of 1960 Rules of Bombay
Service of Engineers Grade II which provided that direct
recruits on probation in any year will be in a bunch senior
to promotees confirmed in that year was declared ultra vires
of Art. 14 of the Constitution as it purported to take away
from the promotees their right of seniority being determined
from date of their promotion from subordinate service to the
posts of Deputy Engineers before confirmation. It was held
that:
"Though drawn from two different sources˜ the
direct recruits and promotees constitute in
the instant case a single integrated cadre.
They discharge identical functions, bear
similar responsibilities and acquire an equal
amount of experience in their respective
assignments. Yet clause (iii) of r. 8 provides
that probationers recruited during any year
shall in a bunch be treated as senior to
promotees confirmed in that year. This formula
gives to the direct recruit even the benefit
of his one year period of training and another
year’s period of probation for the purposes of
seniority and denies to promotees the benefit
of their long and valuable experience. If
there was some intelligible, ground for this
differentiation bearing nexus with efficiency
in public services, it might perhaps have been
possible to sustain such a classification.
Instead of adopting an intelligible
differentia, r. 8(iii) leaves seniority to be
determined
448
on the sole touchstone of confirmation.
Confirmation is one of the inglorious
uncertainties of government service depending
neither on efficiency of the incumbent nor on
the availability of substantive vacancies."
The Office memorandum dated December 7, 196 1 which
purports to amend the United Provinces Service of Engineers
(Buildings & Roads Branch) Class II Rules, 1936 in our
opinion cannot override, amend or supersede statutory rules.
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This memorandum is nothing but an administrative order or
instruction and as such it cannot amend or supersede the
statutory rules by adding something therein as has been
observed by this Court in Sant Ram Sharma v. State of Rajas-
than & Anr., [1968] 1 SCR 111. Moreover the benefits that
have been conferred on the temporary Assistant Engineers who
have become members of the service after being selected by
the Public Service Commission in accordance with the service
rules are entitled to have their seniority reckoned in
accordance with the provisions of rule 23 as it was then,
from the date of their becoming members of the service, and
this cannot be taken away by giving retrospective effect to
the rules of 1969 and 1971 as it is arbitrary, irrational
and not reasonable.
We have already mentioned hereinbefore that the amended
rules of 1969 read with the amended rules of 197 1 adversely
affect the rights of the Assistant Engineers appointed to
substantive posts prior to the introduction of these amended
rules and create fetters for the long years of service being
ever considered for reckoning of seniority in the cadre of
Assistant Engineer. It is pertinent to refer in this connec-
tion the decision of this Court in the case of Mohammad
Shujat Ali & Ors. etc. v. Union of India & Ors. etc.,
[1975] 1 SCR 449 wherein it has been observed that "it is
true that a rule which confers a right of promotion or the
right to be considered for promotion is a rule prescribing
condition of service." For promotion from Assistant Engineer
to the post of Executive Engineer seniority-cum-merit is the
criterion in accordance with the service rules in question.
These temporary Assistant Engineers unless they are selected
to the 50% quota in permanent vacancies reserved for promo-
tion from the Assistant Engineers appointed to temporary
posts, will never have their service reckoned for determina-
tion of seniority in the cadre. It is pertinent to mention
in this connection that ’T’ category and ’D’ category engi-
neers have got some technical qualification i.e. both are
graduates in Civil Engineering and both worked as Assistant
Engineers in temporary vacancies. the respondents were
appointed long before the appointment of appellants as
Assistant Engineers in permanent vacancies. The appoint-
449
ment of respondents has been made in consultation with the
Public Service Commission and according to the decision in
Baleshwar Dass’s case the respondents having become members
of the Service they are deemed to be appointed substantively
in temporary posts. Therefore the amended rules more partic-
ularly rules 3(c), 5 and 6 of 1960 rules as well as rule 23
of 197 1 amended rules are wholly arbitrary and discrimina-
tory and so they are violative of Articles 14 and 16 of the
Constitution. It has been tried to be urged in this connec-
tion on behalf of the direct recruits that the method of
selection to the cadre of Assistant Engineers by providing
quota for direct recruits in permanent vacancies was intro-
duced by the authorities concerned in order to attract
meritorious and talented engineers in the U.P. Service of
Engineers (Buildings & Roads Branch) as there were very
little prospects of promotion for such Assistant Engineers
to be promoted to the higher posts owing to the large number
of Assistant Engineers appointed to temporary posts. It has
thus been urged that these new rules have been introduced in
order to give an incentive to meritorious and talented
engineers to get themselves recruited directly to permanent
posts in the cadre on the basis of the competitive examina-
tion in order to have a fair promotional prospect in the
service. This submission cannot be sustained in view of the
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fact that firstly it seriously prejudices the rights of the
Assistant Engineers appointed substantively to the temporary
posts and working as Assistant Engineers for a number of
years and discriminates them from having their long years of
service after being appointed substantively in temporary
posts and being members of the service though the ’D’ cate-
gory engineers appointed much later in permanent posts will
steal a march over them by having their seniority reckoned
from the date of their appointment on probation. Secondly,
this process of direct recruitment against permanent vacan-
cies was discontinued after 1971 and these amended rules
were not thereafter taken recourse to in filling up the
vacancies in the cadre of Assistant Civil Engineers as it
worked injustice and had led to patent discrimination vio-
lating Articles 14 and 16 of the Constitution. This is
perhaps the reason and rationale which impelled the Shukla
Committee to recommend the discontinuance of this practice
of giving promotion to direct recruits. Quota and rota are
introduced where recruitments to a cadre of Service are made
from two or more sources. But in the instant case the quota
has been introduced for the first time after their recruit-
ment for determining seniority in service ’T’ category
having become members of the Service already and also there
are no different sources of recruitment as both ’D’ and ’T’
category employees are recruited by examination conducted by
Commission. Moreover no quota for filling up permanent
vacancies has been
450
provided at the initial stage of recruitment but a quota has
been made after recruitment at the stage of confirmation.
In this connection it is relevant to mention that the
quota and rota which was introduced by the 197 1 amendment
of Rule 23 cannot be questioned to be arbitrary in as much
as when recruitments to a particular service are made from
more than one source quota and rota may be introduced con-
sistent with the equality clause envisaged in Articles 14
and 16 of the constitution. This decision is new well set-
tled by several decisions of this Court, the last of these
decisions is in the case of Narender Chadha & Ors. v. Union
of India & Ors., [1980] 1 SCJ 307. In the instant case the
question is whether by the substitution of rule 23 by the
amendment Act of 1971 the long years of service already
rendered by the temporary Assistant Engineers who have
become members of the cadre of the service of Assistant
Engineers fulfilling all the conditions can be arbitrarily
and unreasonably excluded while fixing seniority and ’T’
category officers can be deprived of their long years of
services being rackoned for determination of seniority.
It has been urged on behalf of the appellants that the
classification made between temporary Assistant Engineers
though working for a considerable period of time but not
appointed against permanent vacancies and direct recruits
appointed on the basis of the examination against permanent
vacancies on probation is based on merits. In support of
this submission the decision in State of Jammu & Kashmir v.
Triloki Nath Khosa &’Ors., [1974] 1 SCC 771 has been cited
at the bar. This decision in our considered opinion is not
applicable to the instant case inasmuch as in that case
recruitment to the cadre of Assistant Engineers in Jammu &
Kashmir Engineering Service was made by direct recruitment
of degree holders in civil engineering as well as by trans-
fer of degree or diploma holders having served as Supervisor
for a period of not less than five years. The recruitment
rules also further provided for promotion to the cadre of
Executive Engineer on the basis of merit, ability and previ-
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ous service record of the candidates. In 1970 the Jammu &
Kashmir Engineering (Gazetted) Service Recruitment Rules
1970 were made providing that recruitment to the post of
Executive Engineers was to be made only by promotion of
Assistant Engineers possessing degree in civil engineering.
It was held by this Court that the classification made had
reasonable nexus for classification namely to achieve admin-
istrative efficiency in the engineering service by introduc-
ing higher qualification for promotion to the post of Execu-
tive Engineer. In the instant case, all the Assistant Engi-
neers whether appointed in a temporary post of the cadre or
in the perma-
451
nent post of the cadre are recruited directly from Graduates
in Civil Engineering. The only difference is that due to
exigencies of service a large number of Assistant Engineers
were recruited by the Government in consultation with the
Public Service Commission in accordance with Rule 5(a)(ii)
of 1936 Rules as it was prior to its amendment, against
temporary vacancies and those Engineers have been working as
Assistant Engineers since their appointment from 1956 on-
wards till the end of 1961 when the impugned 1961 Memorandum
was promulgated by the Government and thereafter the amended
Rules of 1969 and 197 1 were made. It was for the first time
that the amendment in the rules was made retrospective by
introducing the process of selecting Assistant Engineers to
be appointed directly against permanent posts on probation
through examination to be conducted by the Public Service
Commission in 1962. Necessary amendments were also made in
the Rules 3(c), 5 and 6 of the 1969 Rules as well as Rule 23
of the 1971 Rules in order to provide better prospects of
promotion to these direct recruits by laying down that their
seniority will be reckoned from the date of their appoint-
ment on probation whereas in the case of Assistant Engineers
who were working for years together but appointed against
temporary posts, their seniority from the date of their
appointment after consultation with the Public Service
Commission cannot be counted for the purposes of determina-
tion of seniority unless they are appointed against perma-
nent posts and confirmed. Therefore it cannot be said that
higher education qualification has been prescribed as in the
case of State of Jammu & Kashmir v. Triloki Nath Khosa &
Ors. for the purpose of appointing Assistant Engineers
directly against permanent post on promotion. In the instant
case undoubtedly, both ’T’ and ’D’ category Assistant Engi-
neers are Graduates in Engineering and both are performing
the same nature of work. It is also significant to note in
this connection that the appellants were previously appoint-
ed as Assistant Engineers against temporary vacancies of the
cadre but subsequently on the basis of this examination they
have been appointed directly on probation against permanent
vacancies. There is nothing to show that these Assistant
Engineers had shown any extraordinary or brilliant perform-
ance as Assistant Engineers. It is also to be noted that the
temporary Assistant Engineers have acquired much experience
in their work having been appointed much before the direct
recruits against permanent vacancies. As stated hereinbefore
that under the 1936 Rules the Assistant Engineers appointed
against temporary vacancies became members of the Service
under the then Rule 3 and they were eligible for their
seniority being reckoned from the date of their becoming
member of the Service. In these circumstances it is evident
that the impugned
452
Rules of 1969 and 197 1 purport to take away or to cruelly
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cut off the long years of valuable service rendered by these
respondents i.e. Assistant Engineers appointed in temporary
vacancies of the cadre only to the pretext of appointment
against permanent post and confirmation. The effect of the
1969 and 1971 amendments was thus to take away from the
officers appointed to the temporary cadre through Public
Service Commission i.e. after the selection by the Commis-
sion the long years of service after becoming members of the
Service. It is also pertinent to mention here that though
these temporary posts of the cadre have been continuing for
over years together yet these temporary posts have not been
made permanent before 1961 and thereby depriving the Assist-
ant Engineers from being appointed against permanent vacan-
cies even though they have become members of the service
being appointed in a substantive capacity. These temporary,
Assistant Engineers after introduction of the amended rules
have been relegated to a very uncertain position as to when
they will be selected against permanent vacancies by the
Commission in the 50% quota provided under Rule 6 of the
amended Rules to become members of Service and to have their
seniority reckoned. Moreover the fate of those Assistant
Engineers who are selected and appointed in temporary posts
on the basis of the results of the examination is also very
uncertain inasmuch as they will be considered for selection
by the Commission against the quota for temporary Assistant
Engineers after the Assistant Engineers appointed before
them are all considered for selection in the said quota set
up for the temporary Assistant Engineers in permanent vacan-
cies even though they have been appointed through the same
process of examination considering all these circumstances
we are constraint to hold that the impugned provisions of
Rule 3(c), 5 and 6 of the 1969 Rules and Rule 23 of the 1971
Rules are arbitrary, irrational an unreasonable infringing
Articles 14 and 16 of the Constitution insofar as they
affect the question of determining the inter se seniority of
temporary Assistant Engineers appointed by the Government
i.e. T-category officers under rule 5(2) of the Rules as
against that of D-category officers i.e. officers directly
recruited by the Government against permanent vacancies and
placed on probation.
An argument has been advanced on behalf of the direct
recruits i.e. the appellants that they having duly succeeded
in the competitive examination on the basis of the amended
rules cannot be deprived of their right to be promoted on
the basis of the fixation of their seniority in the cadre of
Assistant Engineers as provided in the amended rule 23 of
1971 rules. This argument in our considered opinion cannot
hold
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good in as much as the cadre of Assistant Engineers com-
prises of both permanent and temporary posts. Rule 3(b)
specifically lays down that an Assistant Engineer becomes
member of the service as soon as he is appointed in the
substantive capacity even in a temporary post in the cadre.
It is inconceivable how a member of the service can be
prevented from having his service reckoned for determination
of seniority in the service from the date he became member
of the Service. The substituted rule 23 introduced in 197 1
is on the face of it unreasonable and arbitrary in as much
as it purports to deprive a member of the service from
having his seniority reckoned on the ipse dixit of the rules
that he has not been appointed in a substantive vacancy.
Rules 3(c) 5 and 6 of 1969 Rules are arbitrary, irrational
and not reasonable infringing Article 14 of the Constitu-
tion. While considering this we of course agree with the
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finding arrived at by the High Court that so far as the
selections made on the basis of the competitive examination
on the basis of the amended rules of 1969 and 197 1 read
with G.O. dated 7.12. 196 1 more than two decades before,
should not be disturbed in as much as these selections were
not challenged during all these years and these direct
recruits have worked there since their appointment. We also
make it clear that our decision will not affect any confir-
mations or substantive promotions made prior to the filing
of the writ petitions.
It appears that an interim order was made by this Court
on 5.5. 1982 to the effect that "if any appointments pursu-
ant to the fresh rules which are framed, are made these will
be subject to the results of these appeals." It also appears
that in Civil Appeal Nos. 2616-19 of 1981 this Court while
disposing of those appeals by order dated 15.4.1981 directed
that in regard to promotions already made in accordance with
the impugned seniority list there shall be status quo as on
the date on which the writ petitions were filed in the
court. It was also directed that such promotions and any
future promotions made in accordance with the impugned
seniority list will abide by the result of these appeals. We
make it clear that since we are dismissing these appeals all
those ad hoc promotions given during the pendency of these
writ petitions as well as civil appeals will not confer any
right on the promotees.
We further hold that so far as the temporary Assistant
Engineers who have been appointed substantively to temporary
posts and have been working for years together after being
only recruited and selected by the Public Service Commission
as required under the service rules have become members of
the service but so far as purely ad hoc employees or employ-
ees on purely officiating basis or employees purely for
454
a temporary period in the cadre of Assistant Engineer in
Public Works Department being not members of the service in
accordance with the service rules, are not entitled to have
the benefit of their such adventitious, purely ad hoc and
temporary service being not appointed substantively even to
a temporary post will not be reckoned for determination of
seniority unless and until they become members of the serv-
ice in accordance with the provisions of service rules. Only
those ad hoc appointees whose services have been regularised
by the regularisation rules framed under proviso to Article
309 of the Constitution after being duly selected by the
Selection Committee and becoming member of the service, will
be entitled to seniority only from the date of order of
appointment after selection in accordance with those regula-
tions as provided in rule 7 of the regulations.
We mention in this connection the observations of this
Court in the case of Ashok Gulati and Ors. v. R.S. Jain &
Ors., AIR 1987 (SC) 424 (to which one of us was a party). It
has been observed as follows:-
"According to the accepted canons of service
jurisprudence, seniority of a person appointed
must be reckoned from the date he becomes a
member of the service ........ It is well
settled that an ad hoc or fortuitous
appointment on a temporary or stop-gap basis
cannot be taken into account for the purpose
of seniority even if the appointee was
qualified to hold the post on a regular basis,
as such temporary tenure hardly counts for
seniority in any system of service
jurisprudence."
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Similar observation was also made by this Court in the
case of State of Gujarat v.C.G. Desai, [1974] 2 SCR 255.
Therefore we make it clear that the period of service ren-
dered by the ad hoc appointees before their service has been
duly regularised in accordance with the regularisations
rules, cannot be taken into account in reckoning their
seniority in service. Their seniority in service will be
counted only from the date when such ad hoc appointees after
regularisation in accordance with concerned rules have
become members of the service.
We direct the authorities concerned to prepare a fresh
seniority list of all the members of the service in the
cadre of Assistant Engineer in the PWD Department on the
basis of their length of service from the date they have
become members of the service fulfilling all the require-
ments laid down in the service rules. We cannot but observe
in this connection that though the temporary Assistant
Engineers have
455
been duly selected by the Public Service Commission after
they are appointed as temporary Assistant Engineers yet in
spite of several directions given by this Court, the author-
ities concerned did not think it fit and proper to prepare
the seniority list in accordance with the directions given
by this Court and as a result no seniority list in the cadre
of Assistant Engineer has yet been prepared following the
directions made even by this Court as embodied in the deci-
sion in Baleshwar Dass & Ors. v. State of U.P. & Ors. On the
other hand amendments have been made to the existing 1936
service rules which per se seem to be arbitrary and this led
to a spate of litigations. We do hope and expect that con-
sidering all these, the Government will take effective steps
for preparation of seniority list as early as possible in
order to create incentive for the members of the service by
holding out prospects of future promotions in the interests
of the service.
In the premises aforesaid we dismiss these appeals and
affirm the judgment and order of the High Court of Allahabad
quashing the said seniority list dated 29.7.1980 together
with supplementary seniority lists dated 18.12. 1980 and
19.12. 1980 relating to Civil Engineering Wing. Rules 3(c),
5 and 6 of 1969 Rules as well as Rule 23 of 1971 Rules are
also quashed. The condition in Office Memorandum dated
21.1.1980, Annexure 2 of Writ Petition No. 2447 of 1980
providing that for the selection for the post of Superin-
tending Engineer the officer must be a confirmed Executive
Engineer is quashed. A writ of mandamus be issued directing
the Government to prepare a fresh seniority list of Engi-
neers in the Civil Engineering and E.M. Wing respectively in
the light of the observations made hereinbefore. This order,
however, will not affect any confirmations or promotions
(other than ad hoc promotions) made before 29.11.1979. In
the facts and circumstances of the case, there will be no
order as to costs.
H.L.C. Appeals dis-
missed.
456