Full Judgment Text
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PETITIONER:
FEDERATION OF DIRECTLY APPOINTED OFFICERS OF INDIANRAILWAY A
Vs.
RESPONDENT:
UNION OF INDIA AND ORS. ETC. ETC.
DATE OF JUDGMENT18/06/1993
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
AHMADI, A.M. (J)
CITATION:
1993 AIR 2422 1993 SCR (3)1018
1993 SCC (3) 364 JT 1993 (4) 32
1993 SCALE (3)45
ACT:
%
Civil Services:
Indian Railway Service of Engineers (Class-I)- Absorption of
temporary Assistant Engineers (Officers) into the service-
Seniority-Weightage-Half the length of service prior to
absorption subject to a maximum of five years-Correctness
of-Dispute between parties in representative capacity-
Applicability of Res-Judicata.
HEADNOTE:
There were two parallel Services of Engineers in the Indian
Railways. One was the Indian Railways Service of Engineers
(Class-(I) who were subjected to competitive written and
personality tests and appointed by the President of India.
The other Service was the temporary Assistant Engineers
(later known as Temporary Assistant Officers) appointed by
the Railway Board, on selection based (on interview alone.
In addition to the minimum educational qualifications which
was the same for both the services three years experience as
Civil Engineer was required for the Railway Service of
Engineers.
The temporary Assistant Officers were gradually absorbed
into the Indian Railway Service of Engineers and the Railway
Board took a decision that they would be given weightage
in seniority on the basis of half the total length of
continuous service in working posts in Railways prior to
their permanent absorption into Class-I subject to a maximum
weightage of five years.
Writ Petitions were filed in this Court by the Federation of
Temporary Officers Association in a representative capacity
seeking relief in their seniority status.
This Court dismissed the Writ Petitions holding that the
classification of temporary, Assistant Officers separate
from the Indian Railway Service
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Engineers Class-I, was neither discriminatory nor violative
of Articles 14 and 16 of the Constitution; and that the
object of recruitment, methods of recruitment, appointing
authority and training imparted being different, no question
of their entitlement to equal rights arose fill they were
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absorbed into the Indian Railway Service of Engineers Class-
1. This Court also approved ,the measures of the Railway
Board in regard to giving weightage of half the length of
service as temporary Assistant Officers subject to a maximum
of five years. Their claim for equal status for equal pay
and equal work was also rejected. (Katyani Dayal & Ors. v.
U.0.1. [1980] 3 SCR 139).
In the present Writ Petitions and Civil Appeals filed in a
representative capacity, the relief claimed were on the same
lines as in Katyani Dayal,s case. As directed by this Court
the affected parties were impleaded in their representative
capacity, so that the decision of this. Court would he
binding on every member of both the classes of employees.
On behalf of the Petitioners/Appellants, it was contended
that equal pay for equal work with equality in all other
conditions of service including avenues of confirmation,
absorption, promotion, pension and security have become
inflexible postulates of service jurisprudence.
The respondents contended that what was being asked was a
virtual review of Katyani Dayal’s case which could not be
permitted. It was also contended that principles of
constructive res judicata would bar the re agitation of the
issues decided in Katyani Dayal’s case if not the strict
principles of res judicata ; and that when the matter has
been settled in this particular service, its unsettling by
means of a petition under Article 32 of the Constitution was
impermissible.
Dismissing the matters, this Court
HELD: 1. The distinction between the two services was
well marked in Katyani Dayal’s case and the important
question of equality was once for all settled. To find
fault with it, at this juncture again on the touch-stone of
equality dimension would be to unsettle a settled position.
That venture is neither in the interest of justice nor in
the interest of service. When there has been complete
absorption of the personnel of one service into the other,
and the seniority of the absorbers is to he reckoned from
their date of absorption as stipulated in their appointment
letters with weightage of half the length of
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service subject to a maximum (of give years, it would
otherwise be imprudent now. at this point of time to dig up
old issues, The rule or weightage also appears to be
reasonable and this is a pattern which has been noticed and
approved In many a Service. Similarly when the dispute
raised between the Officers in a representative capacity and
Engineers riot so represented, still it was a dispute raised
before this Court which has been decided finally. (1026 B-
D)
Katyani Dayal Ors. v. Union of India & Ors,[1980] 3 SCR 139
referred to.
2. The dispute now sought to he raised under Article 32 of
the Constitution between the Officers in a representative
capacity and Engineer.%- across also in a representative
capacity is barred by principles of res judicata as also
by the rule of Constructive res judicata. (1026 D-E)
3. It cannot he said that the State is prohibited from
creating separate channels of service. Equally when
absorption had been made possible and its pace quickened
with weight-age, it is difficult to find fault with the
scheme at this point of time to look for a substitution, as
that would unsettle a settled position, established more
than a decade ago. (1026 E-F)
Direct Recruit Class II Engineering Officers Association v.
State of Maharashtra & Others [1990] 2 SCC 715, followed.
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Raghunandan Prasad Singh v. Secretary, Home (Police)
Department Government of Bihar and Ors. [1988] Suppl. SCC
519 & Dr. O.Z Hussain v. Union of India,[1990] Supp. SCC
688, referred to.
JUDGMENT:
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) Nos.
7900-02 of 1982.
WITH
Writ Petition Nos. 837 & 853 of 1982.
(Under Article 32 of the Constitution of India)
WITH
Civil Appeals Nos. 3137-38 of 1993.
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From the Judgment and Order dated 26.7.84 & 27.7.84 of the
Rajasthan High Court in D.B. Civil Special Appeal Nos. 182 &
184 of 1984.
WITH
C.M.P. Nos. 19643-45 of 1988 & C.M.P.-No. 8272 of 1986.
R.K. Garg, Aruneshwar Gupta, R.K. Kamal and S.K. Gupta for
the Petitioners in W.P. Nos. 7900, 7902/82, SLPS.
12682/84,830/85. and for the Respondent No. 4 in CA.No.
1649/78.
T. Sridharan for the Petitioner in WPs. Nos. 837 & 853 of
1982.
M.K. Ramamurthi, and Parijat Sinha for the Appellants in CA.
No. 1649/78 and for the Respondent No, 4 in WPs. Nos. 7900-
82/82.
R. F. Nariman and P.H. Parekh for the intervenor in WPs.
Nos. 7900-02/82.
V.R. Reddy, Additional Solicitor General, V.C. Mahajan,
Ms.B. Sunita Rao, V.K. Verma and Ms. A. Subhashini for the
Respondent in U.O.I.
C.V.S. Rao, (NP) for the Respondent in SLP Nos.
12682/84,830/85.
C.V. Rappai for the Respondent No. 14 in WP. Nos. 7900-
02/82.
The Judgment of the Court was delivered by
PUNCHHI, J. These are a handful of writ petitions and
special leave petitions which, on grant of leave hereby, and
having become appeals, can conveniently be disposed of by a
common judgment.
The fulcrum of the controversy herein, and the shadow in
which it works is a three-judge Bench decision of this Court
in Katyani Dayal & Ors. v. Union of India & Ors. [1980] 3
SCR 139 decided on March 26, 1980. Before adverting to the
facts and circumstances in which this cause has been
presented to this Court it would be fruitful to give a broad
outline of Katyani Dayal’s case, in the immediately
succeeding, paragraphs.
Connected with Katyani Dayal’s case were writ petitions
filed in a represen-
1022
tative capacity, purporting to represent all temporary
Assistant Engineers (on a later point of time known as
temporary Assistant Officers) appointed by the Railway
Board, pursuant to the authority given by the President of
India, on the recommendations of the Union Public Service
Commission; selection based on interview alone. There was a
separate classification of such temporary Assistant.
Officers when compared with India Railway Service Engineers
(Class 1). Direct recruits to the Indian Railway Service of
Engineers (Class 1) were subjected to competitive written
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and personality tests and in the nature of things only the
very best could emerge out successfully. On the other hand
temporary Assistant Officers, (hereafter referred as
’Officers’ at places) were neither subjected to written nor
to a personality test but, as said before, were selected on
the basis of interview. Besides the minimum educational
qualification, which was the same for both the services
three years experience as a Civil Engineer was. additionally
required for the aspirants to the Indian Railway Service of
Engineers (Class 1) (hereafter referred to as the
’Engineers’ at places). While the President was the
appointing authority of the Engineers, the Railway Board was
the appointing authority of the Officers. Both the members
of these services on selection were due for different
courses of training earmarked separately. There were a host
of other factors which distinguished the quality and
character of the personnel of the two parallel services as
elaborately detailed in Katyani Dayal’s case (supra).
Between the years 1955 and 1964, as many as 553 officers
(temporary Assistant Engineers) were appointed by the
Railway Board through the Union Public Service Commission.
Though in the letters of appointment the officers (temporary
Assistant Engineers) and others concerned were told that six
of them, would be absorbed into the Indian Railway Service
of Engineers (Class 1) every year, this figure in the
subsequent years was increased from time to time when in
1975, the figure as increased stood at 25 per year. The net
result was that after absorption, 107 Officers were
residually left unabsorbed in the year 1976 by the time of
the filing of the connected writ petitions in Katyani
Dayal’s case and they too were finally absorbed in 1979 by
What was described as a "blanket order". Before hand on
September 17, 1965, the Railway Board had taken a decision
to the effect that the Officers so absorbed into the Indian
Service of Engineers would be given weightage in seniority
"on the basis of half the total years of continuous service
in working posts in Railways prior to their permanent
absorption into Class. 1, subject to a maximum weightage of
five years". The then writ petitioners, describing
themselves as members of the Federation of Temporary
Officers Association, Indian Railways joining with them,
their President, Vice-President and Secretary of the
aforesaid Federation as writ petitioners approached this
Court
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in a representative capacity to seek relief in their
seniority status.
The principal claim of the writ petitioners was that
Officers were appointed to temporary posts on the cadre of
Engineers and that their seniority had to be reckoned on the
basis of their length of continuous service, though they
conceded that in any given year, the candidates appointed as
Engineers on the basis of the results of the competitive
examinations were placed above those appointed on the basis
of selection by the Union Public Service Commission. The
challenge was to the authority of the Railway Board to
create such an unclassified parallel service, something
outside the preview of the Indian Railway Establishment
Board. Notwithstanding the procedure of selection so
adopted the writ petitioners contended that they were
recruited in Class I service and supported their claim on
diverse grounds so as to obtain the result that all
Assistant Engineers formed one class under the Indian
Railway Establishment Board. Challenge was made to the
classification of personnel into those that were recruited
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on the basis of the competitive examinations and those that
were recruited by selection, but both by Union Public
Service Commission, terming it as arbitrary and not
permissible under the equality clause in the Constitution.
Grievance was voiced that the right of absorption of a
handful of temporary Engineers (Officers) every year into
the Service of Engineers was arbitrary and inequituous
resulting in grave injustice rendering decades of service of
the Officers to a mere waste.
Unfortunately the then writ petitioners did not sue the
respondents across in a representative capacity. In the
fitness of things it would have been appropriate for the
then writ petitioners to either involve all parties who
could possibly have an interest or a likely affectation in
the litigation, or to sue them in a representative capacity
if not individually. However some people did get impleaded
as parties in that case to project their. point of view and
due to the nature of dispute those predominantly were
members of the Indian Railways Service of Engineers Class 1.
This Court while dismissing the writ petitions held that the
classification of temporary Assistant Officers separately
from the Indian Railway Service Engineers of Class I was
neither discriminatory nor violative of Articles 14 and 16
of the Constitution, for the reason that it had nexus to the
object sought to be achieved, which mainly was efficiency of
service, and that both the services had started separately
and never became one. This Court further viewed that the
object of recruitment being different, the methods of
recruitment dissimilar, the appointing authority being not
the same, the training imparted to the two unlike, the
tenure of temporary Assistant Officers being precarious, and
their maximum aspiration being only to be absorbed into the
Indian Railway Service of Engineers Class
1024
were distinctive features and, therefore, no question of
their entitlement to equal rights arose until and unless the
temporary Assistant Officers got absorbed into the Indian
Railway Service of Engineers Class-1. This court also ruled
that the. seniority of the.absorbed temporary Assistant
Officers would ordinarily reckon from the date of their
absorption into the Indian Railway Service of Engineers
Class I as stipulated in their letters of appointments With
regard to the time factor, this Court also took into account
the long wait involved in the process but all the same
approved of the measures of the Railway Board in lessening
the Iona wait by giving them weightage of half of the length
of service as temporary Assistant Officers subject to the
maximum of five years. And lastly this court rejected the
claim of the temporary Assistant Officers asking for "equal
status for equal pay and equal work" leaving a ray of hope
that such goal might be achieved in the not too distant
future.
The instant batch of matters is virtually on the same lines
as of Katyani Dayal’s case claiming the same relief and this
time by the Temporary Assistant Officers through a body
styled as the Federation of Directly Appointed Officers
(Suppressed) of Indian Railways and a few others, in a
representative capacity across which stand arrayed the Union
of India and the Railway Board as respondents. When this
matter came up for hearing on 15 March, 1990 before a three-
judge Bench in which one of us (Punchhi, J.) was a member,
it was It that the affected parties should be impleaded in
their representative capacity so as to make the decision of
this Court binding on every member of both the classes of
employees. The requisite direction was thus made and
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carried out. Pursuant thereto some private respondents on
record represent the entire body of similarly placed
Engineers, Thus both sides have sued and are being sued in
their representative capacity.
Mr. R.K. Garg, learned counsel for the petitioners has spear
headed the claim of the temporary Assistant Officers on the
basis of the so called developing concept of Article 14 in
the years gone by, especially in the field of the right to
equality in matters relating to employment on appointment in
service. He asserts that the development of law has gone a
long way so as to shed the views expressed in Katyani
Dayal’s case justifying demolition of the demarcation
between the two services made as it was in Katyani Dayal’s
case examining the question afresh in the light of
Raghunandan Prasad Singh v. Secretary, Home (Police)
Department, Government of Bihar & Ors [1988] Supp. SCC 519,
Dr. O.Z Hussain v. Union of India [1990] Supp. SCC 688 at
691, & Direct Recruit Class II Engineering of officers
Association v. State of Maharashtra & Others [1990] 2 SCC
715 and-
1025
other cases. It was contended that Katyani Dayal’s case
upholding the creation of temporary posts outside the
service was on the basis which has since been eroded and
"equal pay for equal work" with equality in all other
conditions of service including avenues of confirmation,
absorption, promotion, pension and security have become
inflexible postulates of service jurisprudence. On the
other hand, learned counsel for the respondents has opposed
such method contending that what is being asked is a virtual
review of Katyani Dayal’s case which is not permissible by
means of successive writ petitions. Addedly it is urged
that principles of constructive res judicata would bar the
re-agitation of the issues decided in Katyani Dayal’s case,
if not the strict principles of res judicata. Lastly it was
urged that when the matter has been settled in this
particular service, its unsettling by means of a petition
under Article 32 of the Constitution is impermissible.
We were taken through Katyani Dayal’s case extensively.
What we find is that the distinction and the classification
of the temporary Assistant Officers and members of the
Indian Railway Service of Engineers Class I fell clearly to
be identified and marked. The only method of fusion was by
means of a phased absorption as noticed in paragraph 9 of
the Report detailed above. The scheme having met with
approval of this Court cannot by mere passage of time be
taken to have become vulnerable by subsequent exponence and
dimension of Article 14 of the Constitution. This Court in
Katyani Dayal’s case specifically said that relief of
equality was being denied to the then petitioners because of
the history, origin, and structure of the Services. No
opinion was expressed however as to the validity of the
given weightage of half the length of service to Temporary
Assistant Officers. subject to a maximum of five years,
because of its being questioned elsewhere.
We are unable to make any headway or act in judicial
indiscipline towards widening the scope of these matters in
the face of the Constitution Bench decision of Direct
Recruit’s case (supra). Amongst the conclusions summed up
by the Constitution Bench conclusion (J) and (K) seal the
fate of these matters. These are:
"(J) The decision dealing with important
questions concerning a particular service
given after careful consideration should be
respected rather than scrutinised for finding
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out any possible error. It is not in the
interest of service to unsettle a settled
position.
(K)That a dispute raised by an application
under Article 32 of the
1026
Constitution must be held to be barred by
principles of res judicata including the rule
of constructive res judicata if the same has
been earlier decided by a competent court by
a judgment which became final."
The distinction between, the two services was well marked in
Katyani Dayal’s case (supra) and the important question of
equality was once for all settled. To find fault with it,
at this juncture again on the touch-stone of equality
dimension would be to unsettle a settled position. That
venture is neither-in the interest of justice nor in the
interest of service. When there has been complete
absorption of the personnel of one service into the other,
and the seniority of the absorbers is to be reckoned from
their date of absorption as stipulated in their appointment
matters and as held by this Court with weightage of half the
length of service subject to a maximum of five years, it
would otherwise be imprudent now, at this point of time to
dig up old issues. The rule of weightage also appears to us
to be reasonable and this is a pattern which has been
noticed and approved in many a Service. Similarly when the
dispute raised between the Officers in a representative
capacity and Engineers not so represented, in Katyani
Dayal’s case (supra), still it was a dispute raised before
this Court which has been decided finally. A dispute now
sought to be raised under Article 32 of the Constitution
between the Officers in a representative capacity and
Engineers across also in a representative capacity must be
held to be barred by principles of res judicata as also in
the rule of constructive res judicata. The cases
aforementioned relied upon by learned counsel for the
petitioners/appellants do not remove this hurdle, however,
broadly may Article 14 and 16 be viewed and expanded. It is
thus unnecessary to elaborate those cases and discover their
ratio. The are argument of learned counsel for the
appellant that the State is prohibited to create separate
channels of service and create discrimination by making one
as an isolated one, and not providing for promotional
avenues reasonably, falls to the ground in view of the bar
of re-agitation erected by Direct Recruit’s case (supra).
Equally when absorption had been made possible and its pace
quickened with weightage, it is difficult to find fault with
the scheme at this point of time to look for a substitution
at our end, as that would unsettle a settled position,
established more than a decade ago. We also do not see any
compelling reasons to deviate from the principles enunciated
in the judgment. At this point of time the bars erected by
Direct Recruit’s case (supra) appear to us to have further
thickened goading us to refrain from the exercise of any
undoing. We thus leave the matter as it is.
It needs mentioning that the appeals being decided instantly
are against the judgments and orders of the High Court
rejecting writ petitions of the petitioners
1027
before it on the basis of Katyani Dayal’s case (supra). No
details of these cases are necessary to dispose of these
appeals for the reasons stated above.
As a result these petitions and appeals tail, but without
any order as to costs. In view of the dismissal of the main
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matters, no orders are necessary on all the C.M.Ps.
G.N. Matters dismissed.
1028