Full Judgment Text
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PETITIONER:
R.L. BANSAL AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT08/05/1992
BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
KULDIP SINGH (J)
CITATION:
1993 AIR 978 1992 SCR (3) 133
1992 SCC Supl. (2) 318 JT 1992 (3) 243
1992 SCALE (1)1179
ACT:
Central Public Works Department Assistant Engineers
(Central Engineering Service and Central Electrical
Engineering Service) Group ’B’ (Confirmation and Seniority)
Rules, 1979: Rules 4 and 5 (As amended by 1982 Rules)-
Constitutional-Validity of.
Central Engineering Service-C.P.W.D.-Assistant
Engineers-Direct recruits and promotees-Confirmation-
Determination of seniority-Rule 4 in so far as it predicates
determination of seniority based on date of confirmation
held violative of Articles 14 and 16(1).
Central Engineering Service, Class II Recruitment
Rules, 1954-Part II-Rules 3,4,5,.
Central Engineering Service Class II
Recruitment (Amendment) Rules, 1976 and 1978.
Constitution of India, 1950: Article 309:
Proviso-Rules framed under-Held legislative in
character-Can be struck down only on the grounds upon which
a legislative measure can be struck down.
HEADNOTE:
The Central Engineering Service Class II Recruitment
Rules, 1954 provided for four methods of appointment to the
category of Assistant Engineers in the Central Public Works
Department, viz., (i) by competitive examinations to be
conducted by Union Public Service Commission - Rule 3(a);
(ii) by direct appointment, i.e. selection from amongst
temporary engineers and temporary Section Officers employed
on the Civil engineering side of the C.P.W.D. after
consultation with the Union Public Service Commission - Rule
3(b); (iii) by promotion, i.e. by selection on merit from
amongst permanent Section Officers employed in the Civil
Engineering side of the C.P.W.D. - Rule 3(c); (iv) by
transfer - Rule 3(d). From time to time appointments to the
category of Assistant Engineers were made from
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different sources. Since particular method of confirmation
was followed, some of the temporary Assistant Engineers, who
we’re directly appointed under Rule 3(b), filed a Writ
Petition in Delhi High Court challenging the confirmation
procedure stating that the other Assistant Engineers
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recruited by competitive examination under Rule 3(a) as well
as those directly appointed under Rule 3(b) and appointed
subsequent to them have been confirmed leaving the
petitioners unconfirmed. The High Court allowed the
petition by directing that the petitioners be considered for
confirmation and their inter se seniority fixed accordingly.
Subsequent to the judgment of the High Court, the
Central Government prepared a seniority list of Assistant
Engineers in 1972 which was based on the date of
appointment/promotion and communicated to all concerned
inviting objections thereto. However, before the said
seniority list could be finalised, the decision of the Delhi
High Court was challenged before this Court; it was upheld
by this Court. After the judgment of this Court, the 1954
Rules were amended in 1977 and again in 1978. The Central
Government than promulgated Central Public Works Department
Assistant Engineers (Central Engineering Service and Central
Electrical Service) Group ’B’ (Confirmation and seniority)
Rules, 1979 with retrospective effect from 1954. These
rules, which prescribed the mode of determination of
seniority of Assistant Engineers, were extensively amended
in 1982.
The effect of the amended Rules was that the Assistant
Engineers who were appointed by direct recruitment from
amongst temporary engineers and Section Officers after
consultation with the Union Public Service Commission were
sought to be treated as promotees. Persons appointed under
3(a) were treated as appointed against permanent post of
Assistant Engineers and were given prior claim for
confirmation. Appointments made prior to 22nd December,
1959 and those made after this date were to be treated
differently for the purpose of confirmation. The Assistant
Engineers appointed before 22nd December, 1959 were to be
confirmed in the order of their seniority. But in the case
of appointments made subsequent to 22nd December, 1959, the
Assistant Engineers recruited against permanent posts were
first to be confirmed en bloc against permanent vacancies in
that year and thereafter Assistant Engineers recruited
against temporary posts and those promoted from lower posts
were to be confirmed against permanent vacancies available
in that
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year by continuous interspersing of one promotee and one
direct recruit appointee against temporary post till the
permanent vacancies of that year exhausted.
Giving effect to the 1979 Rules a fresh seniority list
of Assistant Engineers was prepared. The petitioners filed
a Writ petition in this Court challenging the validity of
1979 Rules and for quashing the 1979 seniority list and
restoration of 1972 list alleging that by virtue of 1972
seniority rules, the promotees have been relegated to far
lower positions in seniority as compared to their position
in 1972 list.
Allowing the petition, this Court,
HELD: 1. Rules made under the proviso Article 309 of
the Constitution being legislative in character cannot be
struck down merely because the Court thinks that they are
unreasonable. They can be struck down only on the grounds
upon which a legislative measure can be struck down. [154 G]
B.S. Vadera v. Union of India, A.I.R. 1969 S.C. 118;
B.S. Yadav v. State of Haryana, A.I.R. 1981 S.C. 561,
referred to.
2. Rule 4 of the Central Public Works Department
Assistant Engineers (Central Engineering Service and Central
Electrical Engineering Service) Group ‘B’ (Confirmation and
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Seniority) Rules, 1979 (as amended by the Central
Engineering Service and Central Electrical Engineering
Service) Group ‘B’ (Confirmation and Seniority) Amendment
Rules, 1982, insofar as it predicates the seniority of
Assistant Engineers, appointed on or after December 22,
1959, on the date of their confirmation, is violative of the
fundamental rights guaranteed to the petitioners and other
similarly placed Assistant Engineers by Articles 14 and
16(1) of the Constitution of India and accordingly held to
be inoperative and void. [157 -D-E]
3. The cadre, it is admitted, consists of both
permanent and temporary members. The Rules do not say that
promotees shall not be appointed against permanent posts or
that they shall be appointed only against temporary posts.
It is true that generally direct recruitment is made only
against permanent vacancies whereas promotions may be made
both against permanent as well as temporary vacancies. But
in this service,
136
It is clear from the Rules themselves that even direct
recruitment is made against temporary posts. There is no
distinction between the four erstwhile categories mentioned
in unamended Rule 3 of the Central Engineering Service,
Class II Recruitment Rules, 1954. All the four sources were
equal quality-wise. Neither was superior to the other. They
could be appointed both against permanent as well as
temporary posts. In these circumstances, bringing in new
concepts of "Assistant Engineers recruited against permanent
posts", and "assistant Engineers promoted from the lower
ranks" through the 1979 Rules, as amended by 1982 Rules, and
treating the latter category unfavourably on that basis vide
Rules 4 and 5 of 1979/1982 Rules, is a clear case of hostile
discrimination. [155 B-F]
4. The entire course of amendments and new Rules
appears to be designed to undo the effect of the Judgment of
the High Court with retrospective effect. Not only the
classification has no basis in the Rules-or in the factual
situation-It is unreasonable and unjust; it is also
unrelated to the object-the object being efficiency of
administration. [155H, 156-A]
5. The formula constrained in Rule 5 of 1979 Rules (as
amended in 1982) is devised to govern the order of
confirmation. This very rule is discriminatory inasmuch as
it seeks to treat to equals unequllly, to the prejudice of
what is now compendiously called, the class of "Promotees".
[157-C]
6. The seniority of Assistant Engineers appointed on or
after December 22, 1959 shall be determined on the same
basis and in the same manner as it is determined in the case
of Assistant Engineers appointed prior to the said date.
[157-F]
JUDGMENT:
S.B. Patwardhan and Anr.v. State of Maharashtra and
Ors., A.I.R. 1977 S.C. 2051,relied on.
Jagmal Singh Yadev v. M. Ramaya, A.I.R. 1977 S.C. 1474,
referred to.
&
ORIGINAL JURISDICTION : Writ Petition (C) No. 1438 of
1981.
(Under Article 32 of the Constitution of India.)
Vijay K. Jain, Baldev Atreya and S. Shekhar for the
Petitioners.
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V.C. Mahajan, Ms. Sarla Chandra, V.K. Verma and Ashok
Bhan for the Respondents.
137
Ashok Grover (NP) for the intervenor.
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. This writ petition is an instance of
the classic dispute between promotees and direct recruits.
The writ petitoners are Assistant Engineers in the Central
Engineering Service-Class III (Gazetted Officers) in the
Central Public Works Department (C.P.W.D.). Appointment to
the category of Assistant Engineers’ Serivce is governed by
the Central Engineering Service, Class-II Recruitment Rules,
1954 (hereinafter referred to as ‘1954 rules’). These Rules,
are divided into six parts. Part I is general. It contains
the interpretation clause. Part-II deals with the method of
recruitment. Rules 3 to 5, relevant for our purpose occur in
this part. The Rules before their amendment in 1977 and
1978 read as follows:
"3. Recruitment to the Service shall be made by any
of the following method:-
(a) By competitive examination in India in
accordance with Part III of these Rules.
(b) By direct appointment in accordance with Part
IV of these Rules of persons selected in India
otherwise than by competitive examination.
(c) By promotion in accordance with Part V of these
Rules.
(d) By transfer in accordance with Part VI of these
Rules."
"4.(a) All appointments to the service or to posts
borne upon the cadre of the Service shall be made
by the Government.
(b) No appointment shall be made to the Service or
to any post borne upon the cadre of the Service by
any method not specified in Rule 3.
(c) Subject to the provisions of sub-rule (b), the
method or methods of recruitment to be employed for
the purpose of filling any particular vacancies in
the Service or such vacancies therein as may be
required to be filled during any
138
particular period and the number of candidates to
be recruited by each method shall be determined by
the Government.
5. Appointments to the Service made otherwise than
by promotion will be subject to orders issued from
time to time by the Ministry of Home Affairs
regarding special representation in the Services
for specific sections of the people".
Rule 3 thus provided for four methods of appointment
namely, (a) by competitive examination held in accordance
with Part III of the said rules, which means an examination
conducted by the U.P.S.C Rule 21 which occurs in Part III
provides that the candidates selected under this part shall
be appointed as Assistant Engineers on probation for two
years and if considered fit for permanent appointment, they
will be confirmed in their appointments;
(b) by direct appointment in accordance with Part IV of
these Rules i.e., otherwise than by competitive examination.
Rule 23 occurred in Part IV. Recruitment by selection under
this rule was to be made " from among temporary engineers
and temporary section officers employed on the civil
engineering side of the Central Public Works Department
after consultation with the Commission." The proviso to Rule
23(1), however, provided that it is not necessary to consult
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the commission in the case of any person, if the commission
were consulted in connected with his temporary appointment
to the service. The eligibility criteria are the same as is
provided for appointment under method (a) except in the
matter of age. The age of the candidate should not be more
than 40 years;
(c) by promotion in accordance with Part V. Rule 24 is
the only rule occuring in Part V. It reads "recruitment by
promotion shall be made by selection on the basis of merit
from among permanent section officers employed in the civil
engineering side of the Central Public Works Department."
(d) by transfer in accordance with Part VI of the said
rules. Part VI again contained a solitary rule - Rule 25.
We need not refer to this rule since it is not relevant for
our purpose.
Rule 4 provided that no appointment shall be made to the
service
139
except in the manner prescribed by Rule 3. Clause (c) of
Rule 4, however, empowers the Central Government to
determine the number of candidates to be recruited by each
method, among other matters.
After the coming into force of 1954 Rules, appointments
were being made from different sources from time to time.
In the matter of confirmation, however, the authorities
followed a particular method which gave rise to discontent
and disquiet among certain sections leading to the filing of
a writ petition in the Delhi High Court, being Civil Writ
Petition No. 238 of 1969. It is necessary to briefly notice
the facts of this writ petition and the principle
enunciated by the Full Bench of the Delhi High Court while
disposing it, as also the decision of this court on appeal
reported as Jagmal Singh Yadav v. M. Ramaya A.I.R. (1977)
S.C. 1474. Writ Petition No.238 of 1969 was filed by 12
Assistant Engineers who were appointed as Assistant
Engineers on various dates between 18th October, 1958 and
8th January, 1963 to officiate temporarily until further
orders. The respondent Nos. 1, 2 and 3 to the writ petition
were the Union of India, U.P.S.C. and another official
respondent. Respondents 4 to 51 were recruited directly
under clause (a) of Rule 3 read with Part III i.e., by
competitive examination held by U.P.S.C., while respondent
62 to 99 were recruited directly under clause (b) of Rule 3
read with Part IV i.e., in consultation with the U.P.S.C.
but otherwise than by holding competitive examination. The
case of the petitioners was that prior to their appointment
as Assistant Engineers they were working as temporary
section officers in C.P.W.D. (in the subordinate engineering
services, Class-III Non-gazetted) and that they were
appointed as Assistant Engineers in accordance with clause
(b) of Rule 3 read with Part IV of 1954 Rules. Their
grievance was that though respondents 4 to 99 were appointed
subsequent to them, they have been confirmed in the category
of Assistant Engineers leaving the writ petitioner
unconfirmed. They submitted that they were entitled to be
confirmed prior to or at any rate along with the said
respondents. On behalf of the respondents, it was submitted
that the writ petitioners therein were not appointed under
clause (b) of Rule 3 read with Part IV but under clause (c)
of Rule 3 read with Part V. It was also submitted that the
writ petitioners were appointed "to officiate temporarily
and until further orders" as Assistant Engineers and,
therefore, they cannot claim parity with respondents 4 to
99. The writ petition was heard by a Full Bench of the Delhi
High Court which allowed the writ petition in the following
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terms:
140
(1) The writ petitioners were, and must be deemed to
have been, appointed under clause (b) of Rule 3 read with
Part IV and not under clause (c) of Rule 3 read with Part V.
At the time of their appointment, they held the same
qualifications as the respondents.
(2) That the petitioners in the said writ petition and
other persons similarly situated like them. Who had joined
the service earlier, should be confirmed first according to
the dates of joining the service as Assistant Engineers,
after giving weightage, in preference to the respondents
therein.
(3) That there was no final determination of quota as
contemplated by Rule 4(c) between the four methods/sources
of recruitment specified in Rule 3. Fixation of quota was a
matter still under consideration of the Central Government
but no final decision was taken till the rendering of
decision by the High Court.
(4) The writ petitioners did not really question the
validity of the appointment of any of the respondents 4 to
99 but only the validity of their confirmation. It is,
however, not necessary to set aside their confirmation for
giving relief to the writ petitioners in the circumstances
of the case. The operative portion and the direction issued
by the High Court is better to put in their own words:
"For the foregoing reasons we hold that the
petitioners were appointed as temporary Assistant
Engineers rule 3(b) read with part IV (rule 23) and
were entitled to be considered for confirmation as
Assistant Engineer when many of the respondents
were confirmed. Since they were not so considered
it would normally follow that the confirmation of
the said respondents will have to be set aside if
the vacancies available at the relevant time were
less than the eligible persons including the
petitioners and the confirmed respondents. We have
already pointed out that Mr. Gopal Krishan stated
before us on behalf of the petitioners that they do
not question the validity of the appointment of any
of the respondents Nos. 4 to 99 but that the
petitioners question the validity of the
confirmation of those of the respondents who have
been confirmed. However we consider that it is not
necessary to set aside the said confirmation of the
following reasons: Mr. Gopalan Krishanan stated
before us that out of the sanctioned No. of post of
Assistant
141
Engineer, a large number of posts have remained
vacant and they will be more than sufficient to
accommodate the petitioners in case they are
confirmed. The correctness of this statement was
not disputed by the counsel for the respondent. In
other words there are a sufficiently large number
of vacant posts for accommodating the petitioners
if they are considered and confirmed. It is thus
not necessary and we are not inclined to disturb
the existing situation by setting aside or
questioning the confirmation of these respondents
who have been confirmed.
In the result, we allow the writ petition partly
and direct the respondents (1) to (3) to consider
the petitioner for confirmation as Assistant
Engineer, and to adjust the inter se seniority of
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such of the petitioners as might be confirmed after
consideration and the respondents in accordance
with law.
In the circumstances of the case we direct the
parties to bear their own costs in the writ
petition."
No appeal was preferred against the said judgment by
the Union of India. However, one of the contesting
respondents viz., respondent No.51 in the writ petition
approached this Court questioning the correctness of the
said decision. This court, in the decision referred to
above, agreed with the High Court that the writ petitioners
in the said writ petition must be deemed to have been
appointed under Rule 3(b) read with part IV of the Rules
inasmuch as the Committee which selected them was presided
over by a member of the U.P.S.C. This court also agreed with
the High Court that there was no final determination by the
Union of India on the question of inter se quota as between
the four sources/channels of recruitment specified in Rule
3. Accordingly, the appeal was dismissed. While dismissing
the appeal, this court made the following observations in
the penultimate para of its judgment:
"Before parting with the records we consider it
proper to point out that persons entering
Government service have the right to know where
they stand with regard to their conditions of
service and future promotion. Since there is no
impediment in the way of the Government to make
appropriate rules regarding conditions of service,
even retrospectively, subject to constitu-
142
tionality, keeping in view justice and fair play to
all concerned, it is a sorry sight to find that
officers in the same Service fight over the years
in courts having failed to get redress from the
Government. When officers are qualified to hold
certain posts after recruitment, according to
rules, and they have put in a number of years,
without break, in the service to the satisfaction
of the authorities, it is impermissible to invoke a
recondite rule and call it in aid to deprive a
large section of officers of the benefit of
otherwise satisfactory service. The matter may be
different when posts in the Service are abolished,
appointments to the Service are transitory or
fortuitous or incumbents are found unsuitable for
absorption. The history of this Service is that
temporary posts are first created and then after
some years they are converted into permanent posts.
The Government, therefore, cannot merely be an on-
looker where it could rightly claim to be a
legitimate arbiter on its own authority and having
proper regard to all just claims. We also cannot
held feeling that thinking in the Ministry has not
always been uniform, sympathy warning or waxing
form time to time for reasons not always manifest."
The petitioners in C.W.P.238/69, it may be noted, were
not promotees. They contended - an which contention was
upheld by the Delhi High Court and this court - that they
are direct recruits having been appointed under Rule 3(b)
read with part IV of 1954 Rule. Respondents 4 to 99 to that
writ petition were also direct recruits - some of them
having been appointed under Rule 3(a) read with part II and
the others under Rule 3(b) read with part IV. It was thus
not a dispute between promotees and direct recruits - as the
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Rules then stood - but as between two categories of direct
recruits. In fact, a large number of respondents appointed
under Rule 3(b) were in the same position as the writ
petitioners therein. The Respondents, no doubt, had
contended that the writ petitioners therein were promotees
appointed under Rule 3(c) read with part V but that
contention was rejected.
After the judgment of the Delhi High Court in writ
petition No.238 of 1969 (in November, 1971) the Central
Government prepared a seniority list of Assistant Engineers
in the year 1972, based on the date of
appointment/promotion, and communicated to all concerned
inviting objections, if
143
any, thereto. Before the said provisional seniority list
could be finalised, this court rendered its decision in the
appeal on 6th January, 1977. Now what happened after the
pronouncement of the said judgment by this court is very
significant.
On 17th January, 1977, the Central Government
(President) issued GSR 168 amending the 1954 Rule called
Central Engineering Service, Class II, Recruitment
(Amendment) Rules 1976. By clause (b) of Rule 2 of these
Amendment Rules, Rule 24 was substituted altogether. After
its substitution, Rule 24 reads as follows:
"24. Recruitment by promotion shall be made
(i) 50% by selection on the basis of merit from
among permanent Junior Engineers employed on the
Civil Engineering side of the Central Public Works
Department; and
(ii) 50% by selection from among Junior Engineers
employed on the Civil Engineering side of the
Central Public Works Department, after consultation
with the Union Public Service Commission on the
basis of a limited Departmental Competitive
Examination which shall be held in accordance with
the rules to be made by the Central Government,
after consultation with the Union Public Service
Commission."
It may be noted that Rule 24 in part V was relatable
to clause (c) of Rule 3, which dealt with promotion. Now by
virtue of the above amendment, the category covered by
clause (b) of Rule 3 was sought to be brought within the
preview of Rule 24, without correspondingly amending Rule 23
or Rule 3(b). In other words, the Assistant Engineers who
were appointed by direct recruitment from among temporary
engineers and temporary section officers after consultation
with Public Service Commission were sought to be treated as
promotees. Evidently, the above amendments were issued in
some haste without a proper scrutiny which is evident from
the fact that only Rule 24 was amended without
correspondingly amending other Rules in the 1954 Rules.
When this was realised, it is evident, the Central
Government came forward with yet another set of amendment
Rules contained in GSR 418 dated 8th March, 1978. Now, by
these Amendment Rules (1978 Amendment Rules) Rule 3 was
substituted altogether. Instead of four
channels/sources/methods of recruitment, they
144
became only two viz., direct recruitment and promotion. As
substituted, Rule 3 read as follows:
"3. Recruitment to the service shall be made by way
of the following methods:-
(a) by competitive examination in India in
accordance with Part III of these Rules.
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(b) by promotion in accordance with part IV of
these Rules."
To be consistent with the amendment to Rule 3, certain
other amendments were also made. They were:
(a) part IV containing Rule 23 was omitted;
(b) part V and Rule 24 therein were renumbered as
part IV and Rule 23 respectively; and
(c) part IV containing Rule 25 was omitted.
Similar amendments were made with respect to Electrical
Engineering Service.
The net effect of the 1977 and 1978 amendments was
this:
(i) only the Assistant Engineers recruited in
accordance with unamended clause (a) of Rule 3
(also clause (a) of Rule 3 after amendment) read
with part III were to be treated as direct
recruits.
(ii) recruitment by transfer as provided earlier by
clause (d) of Rule read with part VI was deleted
altogether; and
(iii) Assistant Engineers appointed under clause
(b) read with Rule 23 (part IV) and those appointed
under clause (c) read with Rule 24 (part V) were
clubbed together and called/treated as promotees
with equal quota as between them. It is worth
recalling that clause (b) of Rule 3, as it stood
before the said Amendment, expressly termed those
appointed thereunder as direct recruits.
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The matters did not stop there. Purporting to draw
inspiration from the observations contained in the
penultimate para of the judgment of this court in A.I.R.
1977 S.C. 1474, the Central Government framed a new set of
rules called "Central Public Works Department Assistant
Engineers (Central Engineering Service and Central
Electrical Service) Group B (confirmation and seniority)
Rules, 1979. "Though these rules were issued in January,
1979 they were given retrospective effect from 21st May,
1954 i.e., the date on which the 1954 Rules were brought
into force. Since the validity of these rules - as amended
in 1982 - is the main issue in this writ petition it would
be appropriate to notice these Rules. Rule 2 is the
definition clause. Clause (a) defines the expression
"appointed day" to mean 21st May, 1954. The expression
"Service Rules" defined in Clause (b) refer to the 1954
Rules. Sub-rule (2) of Rule 2 says that the words and
expressions not defined in this rule shall carry the same
meaning as is assigned to them in the service Rules. Rule 3
provides that every member of service whether appointed by
direct recruitment, by promotion or by transfer shall be on
probation for a period of two years unless the period of
probation has already been approved by the Government under
Service Rules. Rules 4 and 5 which dealt with confirmation
and seniority respectively constituted the central theme of
these rules. It is, however, not necessary to set out these
Rules inasmuch as they have been totally substituted in
1982. Suffice it to state that Seniority was to be
determined with reference to the date of confirmation and
the date of confirmation was determined in a particular
manner, to be elaborated hereinafter - and not with
reference to the date of appointment or date of promotion,
as the case may be. Actually, the purport of the Rules
remains the same even after amendment. Even so, it would be
sufficient if we refer to Rules 4 & 5 as substituted in
1982. But before we refer to 1982 Amendment Rules, which
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were framed and issued after the filing of the writ
petition, it is necessary to refer to a few more facts as
also to the pleadings to the parties
Giving effect to the 1979 Rules, a fresh provisional
seniority list of Assistant Engineers was prepared and
communicated to the persons concerned. The revised
provisional seniority list is referred hereinafter as 1979
provisional seniority list. It is on receipt of the said
seniority list that the four petitioners herein have come
forward with the present writ petition. The petitioners
submit that the 1979 Rules are arbitrary, unreasonable and
discriminatory and that they have been deliberately so
framed as to prejudice the seniority position of the
promotees. They submit that the
146
1972 provisional seniority list was correctly prepared in
accordance with the decision of the Delhi High Court and
that the 1979 Rules have been so designed as to undo the
effect of the Judgment of this Court and Delhi High Court.
By virtue of the 1979 seniority Rules, the promotees have
been relegated to far lower positions in seniority as
compared to their position obtaining in 1972 list. The
direct recruits on the other hand have gained enormously
vis-a-vis the 1972 list. By way of illustration, the
petitioners have cited two instances: One is that of Sri
R.M. Agrawal who is a direct recruit(temporary) vis-a-vis
Shri A.N. Kapoor, a promotee. In the 1972 list their
position was 1033 and 207 respectively whereas in the 1979
seniority list their position is 623 and 624 respectively.
In other words, whereas a direct recruit (temporary) has
come up from 1033 to 623, the promotee has gone down from
207 to 624. Another instance cited is that of Shri G.S.
Mittal, direct recruit (temporary) vis-a-vis Shri S.
Doraiswamy, promotee. In the 1972 list, their position was
1094 and 236 respectively which has become 691 and 692
respectively in the 1979 list. Inasmuch as this situation
has been brought about by virtue of the 1979 Rules, the
petitioners’ main attach is directed against the said rules,
particularly insofar as they provide that seniority of
Assistant Engineers shall be determined with reference to
and shall depend upon their date of confirmation. The
petitioners say that seniority does not and should not be made
to depend upon the date of confirmation. The reliefs sought
for in the writ petition are (a) to strike down the 1979
rules (b) to quash the 1979 provisional seniority list and
(c) to restore the 1972 provisional seniority list. It is
evident that reliefs (b) and (c) are more or less
consequential to relief (a). The main question before us is
the validity of the 1979 rules and in particular the rule
which predicates seniority on the date of confirmation. If
the said rules are found to be good, question of quashing
the 1979 provisional seniority list or restoring the 1972
provisional seniority list does not arise. Moreover, the
impugned 1979 list is also a provisional list and yet to be
finalised after considering the objections received in that
behalf. We shall, therefore, have to confine our attention
to the validity of the Rules, rather than the correctness of
the provisional seniority list prepared on the basis of the
Rules.
In the counter-affidavit filed by one Shri Jagdish
Prasad, Dy. Director (Administration) in the office of
Director General (Works), C.P.W.D., New Delhi, it is
submitted that though the 1972 provisional seniority list
was prepared on the basis of the judgment of the Delhi High
Court, the
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matter was thoroughly re-examined after the decision of this
Court in Jagmal Singh and the 1979 Rules were issued after
consulting the Law Department and keeping in view all the
relevant facts and circumstances of the case. It is
submitted that the judgment of this court aforesaid
impliedly concedes the existence of a nexus between
confirmation and seniority. The Rules are perfectly just
and valid. The 1972 seniority list, it is submitted, was
also a provisional one and before it could be finalised, the
1979 Rules were promulgated by the President of India, with
retrospective effect from 1954, which Rules prescribed the
mode of determining the seniority of Assistant Engineers.
Accordingly, a new revised seniority list was prepared. It
is submitted in para 20 "that the appointees under Rule 3(b)
have been selected for appointment by the same Departmental
Promotion Committee which have considered the question of
promotion of officers as Assistant Engineers under Rule
3(c). By clubbing them together the persons appointed under
Rule 3(b) are not at a disadvantageous position. Direct
recruits who have come against permanent posts are a
distinct group." It is also submitted that "both the
temporary appointments under Rule 3(a) and promotees under
Rule 3(b) and (c) have been treated alike in the Rules by
giving them 1:1 ratio." Another relevant statement made in
the counter-affidavit is that "the cadre consists of both
permanent and temporary officers." It is submitted that the
persons appointed against the permanent posts have a prior
claim for confirmation over those appointed against
temporary posts.
It was brought to our notice that after the filing of
the writ petition, the 1979 Rules have been extensively
amended in the year 1982 with retrospective effect from 21st
May, 1954 and another fresh provisional seniority list has
been prepared and communicated on basis of the 1979 Rules as
amended 1982. For a full and complete disposal of the
dispute, we thought it necessary to take notice of the 1982
Amendments and the revised provisional seniority list
prepared on that basis. Actually these amendments were
brought to our notice only in the written submissions, which
were filed after the close of arguments. In this view of
the matter, we directed the matter to be posted for further
hearing, on which occasion, the counsel for petitioners
brought to our notice not only the 1982 Amendments but also
the 1976 and 1978 Amendments referred to hereinbefore. We
have taken notice of all these Amendments in the interest of
justice and with a view to do effective justice between the
parties. (The only respondents to the writ petition are the
Union of India, Director
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General of Works and U.P.S.C. No other group or any of its
members are impleaded).
The reason for promulgating the 1982 Amendments is
stated in the explanatory Memorandum accompanying the
Amendments. It reads:
"In the Central Public Works Department, Assistant
Engineers (Central Engineering Service) Group ‘B’
(Confirmation and Seniority) Rules, 1979, which had
been given retrospective effect from the 21st May,
1954, the definitions of Assistant Engineers
appointed by different methods had not been given.
This amendment has necessarily to be given
retrospective effect from the same date as the
original rules. In the Civil Appeal No.1260 of
1973 - Shri Jagmal Singh Yadav v, Ramayyah & Others
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- the Superme Court had also observed that there
was no impediment in the way of the Government to
make appropriate rules regarding conditions of
service, even retrospectively subject to
constitutionality and keeping in view justice and
fair play to all concerned.
2. The Central Engineering Service Class II
Recruitment Rules and the Central Electrical
Engineering Service Class II, Recruitment Rules, do
not contain the principles for determinating the
seniority of officers appointed to the grade of
Assistant Engineers through different methods
except Direct Recruitment. No special orders were
also issued by Government in the past laying down
any such principles. Therefore, the officers
appointed to these services are deemed to be
governed by the general principles of seniority
issued by the Ministry of Home Affairs in their
office memorandum No.30/44/48-Apptt. dated the 22nd
June, 1949 and No.9/11/55-RPS dated the 22nd
December, 1959 respectively, according as to
whether they were appointed to the service prior to
the 22nd December, 1959 or on or after that date.
The present amendment seeks to incorporate these
principles, to the extent possible and practicable,
in the Central Public Works Department, Assistant
Engineers (Central Engineering Service and Central
Electrical Engineering (Central Engineering Service
and Central Electrical Engineering Service) Group
‘B’ (Confirmation and Seniority) Rules, 1979, since
the principles have to be applied for deter-
149
mining the seniority of officers appointed to the
service in the past also, these have necessarily to
be given retrospective effect from the date of the
Constitution of the service, viz., the 21st May,
1954. The proposed amendment, according to
Government will be equitable, fair and just to all
groups of Assistant Engineers in the Central
Public Works Department."
The 1982 Amendments have not only substituted Rules 4 &
5 but also added certain definitions in Rule 2(1). Further,
for the reasons set out in the Explanatory Memorandum, a
cut-off date - if it can be so described for the sake of
convenience - is prescribed. It is 22nd December, 1959.
Appointments made prior to this date and those made after
this date are dealt with on different footing. After the
substitution of Rules 4 and 5, Rule 4 deals with seniority
while Rule 5 deals with confirmations, whereas before the
1982 Amendments, Rule 4 dealt with confirmation and Rule 5
with seniority. The definitions introduced in Rule 2(1)
which are relevant for the present purposes - read as
follows:
"(c) Assistant Engineers recruited against
permanent posts" means those Assistant Engineers
who have been directly recruited through the Union
Public Service Commission against permanent posts
of Assistant Engineers in accordance with clause
(a) of rule 3 read with Part III of the Service
Rules;
(d) "Assistant Engineers recruited against
temporary posts" means those Assistant Engineers
who have been directly recruited through the Union
Public Service Commission against temporary posts
of Assistant Engineers in the Central Public Works
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Department in accordance with clause (a) of rule 3
read with Part III of the Service Rules;
(e) "Assistant Engineers promoted from the lower
ranks" means those Assistant Engineers whether
graduates or Diploma holders; promoted or selected
from the rank of Section Officers to the grade of
Assistant Engineers by a duly constituted
Departmental Promotion Committee in accordance with
either clause (b) or rule 3 read with Part IV or
clause (c) of rule 3 read with Part V of the
Service Rules as they existed before they were
amended by GSR Nos. 418 and 419 dated the 8th
March, 1978."
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Rule 4 and 5 as substituted in 1982 read thus:
"4. Seniority
(i) Notwithstanding anything else contained in the
Service Rules, the seniority of the members of the
service appointed by whichever method, or before
the 21st December, 1959 shall be determined with
reference to the date of their appointment as
Assistant Engineers, irrespective of whatever they
have been confirmed in the grade or not and they
shall rank en bloc senior to those appointed on or
after the 22nd December, 1959.
Note: For the purpose of this sub-rule, the date of
appointment of the direct recruits of any batch
appointed on or after the 21st May, 1954 shall be
deemed to be earliest date on which any person from
that batch joined in the service.
(2) Subject to the provisions of sub-rule (4), the seniority
of the members of the service appointed by whichever method,
on or after the 22nd December, 1959 shall be determined in
the order of their confirmation under Rule 5:
Provided that their inter se seniority shall be
determined by the order of merit in which they are selected
for such appointment:
Provided further that persons appointed as a result of
earlier selection shall rank senior to those appointed as a
result of subsequent selection.
(3) As from the commencement of the Central Engineering
Service, Class II, Recruitment (Amendment) Rules, 1976 and
the Central Electrical Engineering Service, Class II,
Recruitment (Amendment) Rules, 1976, the relative seniority
of promotee Assistant Engineers under clause (i) and (ii) of
rule 24 of the Service Rules shall be regulated according to
the rotation of vacancies based on the quotas prescribed for
such promotions beginning with a promotee under clause (i)
of the said rule.
(4) The relative seniority of the members of the service
appointed, by whichever method, shall follow the following
order. Persons falling in each later category shall rank
junior to persons falling in the earlier category:
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(i) Assistant Engineers appointed by whichever
method on or before the 21st day of December, 1959;
(ii) Assistant Engineers appointed on or after the
22nd day of December, 1959, against the permanent
vacancies, in any particular post, in accordance
with Part III of the Service Rules, and
confirmed in accordance with sub-clause (ii) of
clause (b) of rule 5 in that year.
(iii) Assistant Engineers appointed on or after the
22nd day of December, 1959 and confirmed in any
particular year after the confirmation of the
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Assistant Engineers referred to in clause (ii) of
this sub-rule, in the manner and in the order
specified in sub-clause (iii) of clause (b) of sub-
rule (2) of rule 5, in that year.
Confirmation:
(1) To be eligible to be considered for
confirmation an Assistant Engineer appointed, by
whichever method, shall have;
(a) completed the period of probation
satisfactorily and
(b) passed such tests as may be prescribed
from time to time by government by general or
special orders.
(2) Notwithstanding anything else contained in the
Service Rules, but subject to the provisions of
sub-clause (1) above, the confirmation of Assistant
Engineers in the service shall be regulated in
accordance with the provisions hereinafter
contained, namely:-
(a) The Assistant Engineers appointed by
whichever method, on or before the 21st day of
December, 1959 but not confirmed before that date
shall be confirmed in the order of their
seniority, subject to their being found fit under
sub-rule (1).
(b) Confirmation, in the grade of Assistant
Engineers who
152
were appointed on or after the 22nd December,
1959 shall be made in the following manner,
namely:-
(i) the number of permanent vacancies available
in each year shall be determined in the first
instance.
(ii) Assistant Engineers recruited against
permanent posts in a particular year, who have
completed the period of probation, shall be
confirmed en bloc against permanent vacancies
available in that year, in order of the inter se
seniority of such officers and, where the number
of Assistant Engineers so appointed in a
particular year exceeds the number of permanent
posts available in that year, such Assistant
Engineers shall be confirmed against
supernumeratory posts which shall be created for
that purpose.
(iii) After the Assistant Engineers of the
category mentioned in sub-clause (ii) have been
confirmed in a year, the Assistant Engineers
recruited against temporary posts and the
Assistant Engineers promoted from lower ranks on
temporary basis, who have completed the period of
probation, shall be confirmed subject to their
being otherwise found fit, against permanent
vacancies available in that year by continuous
interspersing of one promotee and one direct
recruit appointed against temporary post till the
permanent vacancies of that year are exhausted.
Provided that if, in a particular year, any of the
categories mentioned in sub-clause (iii) nemely,
the promotees or the direct recruits against
temporary posts, gets exhausted in following the
procedure set out in this sub-clause, the remaining
permanent vacancies shall en bloc go to the group
having unconfirmed Assistant Engineers:
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Provided further that if, in a particular year, the
number of permanent vacancies is less than the
number of Assistant Engineers in the categories
mentioned in sub-clause (iii), the Assistant
Engineers not confirmed in that year shall be con-
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sidered for confirmation against permanent
vacancies of the subsequent year, by again
following the principle of inter-spersing, after
the direct recruits against permanent posts of that
year have first been adjusted in the manner
indicated in sub-clause (ii). The direct recruits
or, as the case may be, the promotees shall be
selected for such confirmation under this clause in
the order of their seniority in their respective
seniority lists."
It is necessary to notice the effect of the 1982
amendments. As would be evident from the definitions
"Assistant Engineers recruited against permanent posts",
are those appointed under Rule 3(a) of the 1954 Rules
against permanent vacancies, while "Assistant Engineers
recruited against temporary posts" means those appointed
under Rule 3(a) against temporary posts. "Assistant
Engineers promoted from the lower ranks", are those
appointed/promoted under unamended clauses (b) and (c) of
Rule 3. More important, seniority now depends upon the date
of confirmation, which is determined in accordance with Rule
5 of 1979/1982 Rules. If we read Rule 5 closely, it becomes
clear that of the permanent vacancies available in a year,
the direct recruits against permanent vacancies are to be
accommadated en bloc in the first instance. And thereafter
if any vacancies are left, the direct recruits against
temporary posts and promotees (which category now includes
Assistant Engineers recruited and promoted under Clauses (b)
and (c) - unamended - of Rule 3 of the 1954 Rules) are to be
accommodately alternately. This process is to be repeated
each year. Then again, while Rule 5 refers to "Assistant
Engineers recruited against permanent posts" and "Assistant
Engineers recruited against temporary posts", it does not
speak of "Assistant Engineers promoted from lower ranks".
It speaks of "Assistant Engineers promoted from lower ranks
on temporary basis". What does this mean? Does it mean
that all promotee engineers (including those ‘direct
recruits’ appointed under unamended clause (b) of Rule 3)
were appointed/promoted only against temporary posts ? Was
no such person appointed or promoted against a permanent
post? Were all permanent posts meant only for direct
recruits? Rules do not say so, nor does the counter
affidavit assert so. (If this were so, the seniority list
prepared in 1972 would not have been prepared in the manner
it was prepared.) If on the other hand, these persons were
also appointed and promoted against some of the permanent
vacancies, then where do they fit in in the sequence
prescribed by Rule 5? There is no explanation,
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nor any appartent reason, why the direct recruits against
permanent posts are treated as a superior category to all
the promotees en bloc. Not a single promotee - not even an
Assistant Engineer recruited under unamended clause (b) of
Rule 3 of the 1954 Rules - is ranked on par with them. They
are placed on par with Assistant recruited against temporary
posts. This is totally at variance with the basis and
principle upon which the 1972 seniority list was prepared
pursuant to the Judgment of Delhi High Court - which was
later affirmed by this Court. There is yet another glaring
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feature. So far as the appointments/promotions made prior
to December 22, 1959 are concerned, they are to be confirmed
in the order of their appointment - which means that
seniority is determined on the basis of their appointment
irrespective of the mode in which he is appointed. But when
it comes to the period subsequent to December 22, 1959, the
rule is altogether different. The Assistant Engineers
appointed/promoted on or after December 22, 1959 are divided
into three categories mentioned above. There is no reason
or basis for the date 22.12.1959 except that it is the date
on which the subsequent Memorandum of the Home Ministry
(said to contain the principles regarding determination of
seniority) was issued. (We have not been shown a copy of
the said Memorandum.) It is not a mere case of different
principle being adopted subsequent to 22.12.1959, it is
inherent vice of discrimination implicit in it that is
hurting the promotees (as defined in amended Rule 3(b) of
the 1954 Rules).
The petitioners say that on the basis of the 1982
amendments, a fresh revised provisional seniority list has
been prepared and communicated to all concerned, inviting
their objections, if any. They say that in this revised
list they have been further sent down to far lower positions
than in the 1979 list. The respondents, on the hand, submit
that the amendments are perfectly just and equitable and
that no legitimate grievance can be made against the Rules
or the revised provisional seniority list of 1982.
Now it is true that Rules made under the Proviso to
Article 309 of the Constitution being legislative in
character cannot be struck down merely because the Court
thinks that they are unreasonable, - and that they can be
struck down only on the grounds upon which a legislative
measure can be struck down. (Vide B.S. Vadera v. Union of
India, (1969) S.C. 118 and B.S. Yadav v. State of Haryana,
(1981) S.C. 561, we are yet of the opinion that Rule 4 of
1979 Rules (as amended in 1982) in so far as it
155
predicates seniority on the date of confirmation - which
confirmation is directed to be made on a wholly unequal and
discriminatory basis - is violative of the equal opportunity
clause enshrined in Article 16 of the Constitution. The
cadre, it is admitted consists of both permanent and
temporary members. The Rules do not say that promotees
shall not be appointed against permanent posts or that they
shall be appointed only against temporary posts. It is true
that generally direct recruitment is made only against
permanent vacancies/posts whereas promotions may be made
both against permanent as well as temporary vacancies/posts.
But in this service, it is clear from the Rules themselves
that even the direct recruitment is made against temporary
posts. In short, there is no distinction between the four
erstwhile categories mentioned in unamended Rule 3. They
could be appointed both against permanent as well as
temporary posts. If so, there appears to be no
justification for treating all the appointees under clauses
(b) and (c) of Rule 3, en bloc, on par with direct recruits
against temporary posts (as has been done by Rules 4 and 5
of 1979/1982 Rules) which suggests as if all such
appointments were made, at all points of time, only against
temporary posts. At the cost of repetition, we may mention
that those appointed under unamended clause (b) or Rule 3
were expressly referred to as direct appointees and yet they
are now converted into promotees en bloc and downgraded vis-
a-vis direct recruits under unamended clause (a) of Rule 3.
All this, in our opinion, is discriminatory and violative of
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Articles 14 and 16(1). There were four channels/sources of
appointment. Direct recruitment was one of them - unamended
clause (a). Unamended clause (b) provided for another type
of direct appointment while unamended clause (c) provided
for promotion. True, there was no quota fixed as between
them as held by this Court and Delhi High Court but the
Rules nowhere stated that appointment under unamended
clauses (b) and (c) shall be made only against temporary
posts. All the four sources were equal - quality-wise.
Neither was superior to the other. In these circumstances,
bringing in new concepts of "Assistant Engineers recruited
against permanent posts", and "Assistant Engineers promoted
from the lower ranks" through the 1979 Rules (as amended by
1982 Rules) and treating the latter category unfavourably on
that basis (vide Rules 4 and 5 of 1979/1982 Rules) is a
clear case of hostile discrimination. In this context, if
we recall the principles enunciated by the Delhi High Court
and this court in the earlier writ petition referred to
hereinbefore, the intention of the Rule-making authority to
undo the effect of the said Judgments, to the grave
prejudice of the Assistant Engineers appointed under clauses
(b) and (c) of unamended Rule 3 becomes crystal clear. The
entire course of
156
amendments and new Rules appears to be designed to undo the
effect of the said Judgment with retrospective effect. Not
only the classification has no basis in the Rules - or in
the factual situation - it is unreasonable and unjust; it is
also unrelated to the object - the object being efficiency
of administration.
In S.B. Patwardhan and Anr. v. State of Maharashtra and
Ors. A.I.R. 1977 S.C. 2051, this court observed:-
"Instead of adopting an intelligible diffentia,
Rule 8(iii) leaves seniority to be determined on
the sole touchstone of confirmation which seems to
us indefensible. Confirmation is one of the
inglorious uncertainties of Government service
depending neither on efficiency of the incumbent
nor on the availability of substantive vacancies.
A glaring instance widely known in a part of our
country is of a distinguished member of the
judiciary who was confirmed as a District Judge
years after he was confirmed as a Judge of the High
Court. It is on the record of these writ petitions
that officiating Deputy Engineers were not
confirmed even though substantive vacancies were
available in which they could have been confirmed.
It shows that confirmation does not have to conform
to any set rules and whether an employee should be
confirmed or not depends on the sweet will and
pleasure of the Government.
Rule 8(ii) in the instant case adopts the
seniority-cum-merit test for preparing the
statewise Select List of seniority. And yet Clause
(III) rejects the test of merit altogether. The
vice of that clause is that it leaves the valuable
right of seniority to depend upon the mere accident
of confirmation. That, under Articles 14 and 16
of the Constitution, is impermissible and therefore
we must strike down Rule 8(iii) as being
unconstitutional."
The petitioners also rely upon the following
observations from the same judgment:
"Though drawn from two different sources, the
direct recruits and promotees constitute in the
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instant case a single integrated cadre. They
discharge identical functions, bear similar
responsibilities and acquire an equal amount of
experience in their respective assignments. And
yet clause (iii) of Rule 8 provides
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that probationers recruited during any year shall
in a bunch be treated as senior to promotees
confirmed in that year. The plain arithmetic of
this formula is that a direct recruit appointed on
probation, say in 1966, is to be regarded as senior
to a promotee who was appointed as an officiating
Deputy Engineer, say in 1956, but was confirmed in
1966 after continuous officiation till then."
True it is that in the present case, a formula
contained in Rule 5 of 1979 Rules (as amended in 1982) is
devised to govern the order of confirmation, but as
demonstrated above, this very rule is discriminatory
inasmuch as it seeks to treat equals unequally, to the
prejudice of what is now compendiously called, the class of
"promotees".
For the above reasons, it must be held that Rule 4 of
the Central Public Works Department Assistant Engineers
(Central Engineering Service and Central Electrical
Engineering Service) Group ‘B’ (Confirmation and Seniority)
Rules, 1979 (as amended by the Central Public Works
Department, Assistant Engineers (Central Engineering Service
and Central Electrical Engineering Service) Group ‘B’
(confirmation and Seniority) Amendment Rules, 1982), insofar
as it predicates the seniority of Assistant Engineers
(appointed on or after December 22, 1959) on the date of
their confirmation, is violative of the fundamental rights
guaranteed to the petitioners (and other similarly placed
Assistant Engineers) by Articles 14 and 16(1) of the
Constitution of India and accordingly held to be inoperative
and void.
Having regard to the period for which this dispute has
been pending and in the facts and circumstances of this case
and for the reasons recorded hereinbefore, we direct that
the seniority of Assistant Engineers appointed on or after
December 22, 1959 shall be determined on the same basis and
in the same manner as it is determined in the case of
Assistant Engineers appointed prior to the said date. This
direction is made keeping in view the desirability of giving
a quietus to this dispute at least now.
The writ petition is, accordingly, allowed in the above
terms. No order as to costs.
T.N.A. Petition allowed.
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