PETITIONER:
KATYANI DAYAL AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT26/03/1980
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
PATHAK, R.S.
CITATION:
1980 SCR (3) 139 1980 SCC (3) 245
ACT:
Temporary Assistant Engineers, gazetted service
recruited by Railway Board-Neither classified as Class I or
Class II but given the junior scale of pay of Indian Service
of Engineers Class I, and eligible to be considered for
absorption in permanent vacancies as per quota fixed per
year-Whether belong to the cadre of Indian Service of
Engineers-Whether treating them purely temporary offends
Articles 14 and 16 of the Constitution-Constitution of India
Articles 53, 73(1) (a) and 109-Indian Railway Establishment
Rules 102(3) (13), 105, 106-109, 112, 116, 118(i), 125, 129,
130-133, 140 and Rule 2003(3), (22), (29), (30), (31).
HEADNOTE:
Several assignments such as the construction of major
bridges, new lines, doubling of and electrification of
existing lines etc. were taken up the Engineering Department
of the Indian Railways and to carry out these works, a
number of temporary posts of Class I (Indian Railway Service
of Engineers) and Class II engineers were created. It was
not thought possible to meet additional personnel
requirements from existing sources, i.e. direct recruitment
to Class I by competitive examination and promotion to class
II from class III. Instead, under a special scheme the
various writ petitioners were appointed at various times
between 1955 and 1964 as temporary Assistant Engineers by
the Railway Board. Everyone of them was told that the
appointment, would be on a temporary basis, that the post to
which they were appointed would be neither in Class I nor in
Class II service though they were eligible, on completion of
three year's service, to be considered along with other
temporary Assistant Engineers for absorption in Class I
(Junior Scale) against vacancies ear-marked from time to
time for such absorption in the Indian Railway Service of
Engineers cadre upto a maximum of six per year, and that in
the event of their being selected in Class I Service their
seniority would count from the date of the permanent
appointment to Class I service. They were required to
execute service agreements "as applicable to temporary
officers". The petitioners accepted the terms offered to
them and joined duty in the post to which they were
appointed. The petitioners also executed agreements in a
standard form known as "Agreement for Temporary Assistant
Officers of the Indian Railways".
140
Though in their orders of appointment as temporary
Assistant Engineers the petitioners and others were told
that six of them would be absorbed into the Indian Railway
Service of Engineers Class I every year, the quota was
increased to eight per year in 1957 and fifteen per year in
1961. In 1960, the quota was fixed at 60 per cent of the
actual intake of probationers from the CES etc.
examinations. Again in 1975 the quota was increased to 25
per year. The net result was that all but a 107 temporary
Assistant Engineers were left unabsorbed by the time of the
filing of the writ petitions and they too were finally
absorbed in 1979 by a blanket order. On September 17, 1965,
the Railway Board decided that the temporary officers so
absorbed into the Railway Service of Engineers should be
given weightage in seniority "on the basis of half the total
number of years of continuous service in working posts on
Railways prior to their permanent absorption into Class I,
subject to maximum weightage of five years."
One of the writ petitioners, Katyani Dayal field a writ
petition in the Allahabad High Court claiming promotion to
the Senior scale post of District Officer. He found his
claim on Rule 133(3)(c) of the Railway Establishment Code on
the basis that he was an Assistant Officer within the
meaning of that expression as then defined by Rule 102(3).
The High Court allowed the writ petition and gave a
direction to the Railway Administration to consider the
claim of the petitioner for appointment in officiating
vacancies to the post of District Officer as soon as
vacancies arose, ignoring the circulars which gave
preference to Class I junior scale officers of four years
standing or more as against temporary Assistant Engineers.
An appeal filed by the Railway Administration under the
Letters Patent was dismissed by a Division Bench of the High
Court. Though the Division Bench dismissed the appeal on
August 1, 1974, the Railway Administration did not implement
the judgment but instead on December 12, 1975 amended the
Rule 102(3), 133(3)(c) and (f) and introduced new rule
102(17) so as to expressly exclude temporary Assistant
Officers (newly defined by Rule 102 (7), from the category
of Assistant Officers and thus make them ineligible for
promotion to the senior scale under Rule 133(3)(c) and (f).
The petitioners, therefore, have filed these writ
petitions in a representative capacity purporting to
represent all temporary Assistant Engineers appointed on the
recommendation of the Union Public Service Commission,
claiming that, in law they could only be and were appointed
to the Indian Railway Service of Engineers Class I right
from the beginning and that the Railway Board was wrong in
treating them as belonging to neither Class I nor Class II.
They claimed that they were appointed to temporary posts in
the cadre of Indian Railway Service of Engineers Class I and
that their seniority had to be reckoned on the basis of
their length of continuous service, though they
141
conceded that in any given year those appointed on the basis
of the results of the competitive examination might be
placed above those appointed on the basis of the selection
by the Union Public Service Commission.
Dismissing the petitions the Court
^
HELD: (1) Arts. 53, 73(1)(a) and 309, make it clear
that the President, acting directly or through officers
subordinate to him is free to constitute a service (with as
many cadres as he chooses), to create posts without
constituting a service or to create posts outside (the
cadres of) the constituted service. The President (or the
person directed by him) may, or, again, if he so chooses he
may not make rules regulating the recruitment and conditions
of service of persons appointed to such service or posts. He
is also free to make or not to make appointments to such
services or posts. Nor is it obligatory for him to make
rules of recruitment etc. before a service may be
constituted or a post created or filled. But, if there is an
Act of Parliament or a rule under the proviso to Article 309
on the matter, the executive power under Articles 53 and 73,
may not be exercised in a manner inconsistent with or
contrary to such Act or rule. [162D-F]
B.N. Nagarajan v. State of Mysore, [1966] SCR 682 @
686; State of Kerala v. M.K. Krishnan Nair and ors., [1978]
2 S.C.R. 864 at 874; referred to.
(2) The previous existence of the Indian Railway
Service of Engineers and the rules made for recruitment to
that service do not bar the constitution of another service
or the creation of posts outside the cadres of the Indian
Railway Service of Engineers. Though to start with there was
no Presidential sanction for the creation of the posts of
Temporary Assistant Officers in the various departments of
Indian Railways, which were neither in Class I nor in Class
II but merely in gazetted service, the matter was soon
rectified by the grant of Presidential sanction for the
posts in November 1956, and by the President further
specifying the Railway Board as the authority competent to
make appointment of such temporary Assistant Officers. The
posts of Temporary Assistant Officers were thus created and
appointments made, under valid authority and outside the
existing cadres of the Indian Railway Service of Engineers.
The letters of "indent", the advertisements, the letters of
appointment and the agreements show that the temporary
Assistant Officers appointed in this fashion after selection
by the Union Public Service Commission were to be a source
of recruitment to the Indian Railway Service of Engineers
Class I. If Temporary Assistant Officers were to be a source
of recruitment to the Indian Railway Service of Engineers
Class, no temporary Assistant Officer could possibly be
under any misapprehension that he was
142
appointed to the Indian Railway Service of Engineers Class I
or could claim that he was appointed to such service. [162G-
H, 163G-H, 164A]
The petitioners cannot be considered to have been
appointed under rule 130(d) of the Indian Railway
Establishment Code which provides for occasional admission
of other qualified persons on the recommendation of the
Union Public Service Commission merely because they were
selected for appointment by the Union Public Service
Commission, their scale of pay was the same as that of the
Class I Junior Scale Officers of the Indian Railway Service
of Engineers and their duties were the same. [164A-C]
(3) It is no doubt true that a cadre may consist of
permanent vacancies in permanent as well as temporary posts
borne on the cadre. But it does not follow that appointments
stated to be made to posts outside the very service and
therefore necessarily outside the cadre must be considered
to be made to temporary posts borne on the cadre merely
because the posts were likely to continue indefinitely and
did so continue. [164 F-G]
The Annual Administrative Reports merely refer to
appointments, temporary as well as permanent, made in the
gazetted service by direct recruitment. Gazetted Railway
services must include both the Indian Railway Service of
Engineers and the Gazetted Railway Service constituted by
the temporary Assistant Officers. Therefore, by merely
taking into account the number of Temporary Assistant
Officers for the purpose of calculating the total number of
persons appointed to Gazetted Railway Service it cannot
conceivably be said that Temporary Assistant Officers were
appointed to cadre posts in the Indian Railway Service of
Engineers. Even the classified lists of Gazetted officers do
not indicate that persons who were appointed as Temporary
Assistant Officers were appointed to posts borne on the
cadre of Indian Railway Service of Engineers. On the other
hand under the column "Date of appointment to Class" no
entry is made against the names of any of the Temporary
Assistant Officers who had not yet been absorbed into the
Indian Railway Service of Engineers. [165 B-C, D-E]
If posts were initially created and sanctioned, the
subsequent continuance of the posts indefinitely would not
make persons appointed to the posts members of the Railway
Service, namely, the Indian Railway Service of Engineers
Class I. [165 F-G]
(4) The note below Rule 106 of the Railway
Establishment Code merely states an existing fact known to
all concerned, namely, that posts of Temporary Assistant
Officers in gazetted railway service who were not to be
classified 'either as Class I or as Class II' had been
sanctioned by the President
143
who had designated the Railway Board as the authority
competent to make appointments to those posts. With or
without the note, the Temporary Assistant Officers would
still not be classified either as Class I or Class II. Their
classification outside Class I and Class II was not
dependant on the note but on the Presidential sanction in
regard to the creation of the posts.
[166 A-B]
(5) Temporary Assistant Officers are not Assistant
Officers within the meaning of that expression in the Indian
Railway Establishment Code. The expression "Temporary
Assistant Officer", which was not previously defined in the
Railway Establishment Code, was sought to be defined by new
clause 17 of R.102 to mean "a Gazetted Railway Servant
drawing pay on the scale applicable to junior Scale Officers
but not classified either as Class I or as Class II
Officers. The expression Assistant Officer was redefined so
as not to include a Temporary Assistant Officer who was not
'classified' either as Class I or as Class II. [166 C-D]
The amendments do not have any effect one way or the
other on the status of the Temporary Assistant Officers.
What was always well known to the Temporary Assistant
Officers and the Railway Board and what was the inevitable
result of the Presidential sanction for the creation of
posts which were not to be classified either as Class I or
Class II, was made explicit in the Indian Railway
Establishment Code also by the introduction of these
amendments. This became necessary because in the Writ
Petition filed by Katyani Dayal, the Allahabad High Court,
while appearing to hold that Temporary Assistant Officers
belonged neither to Class I nor to Class II service, held
that they came within the then existing definition of
'Assistant Officer' so as to entitle them for promotion
under r. 133 of the Indian Railway Establishment Code.
[166E-G]
The definition of Assistant Officer was not to be read
in isolation but should have been read conjunctively with
Rules 105, 106 and 108. A reference to Rule 105 would show
that for the purposes of the rules in the Indian Railway
Establishment Code, Railway services were to be classified
into Class I, Class II, Class III, Class IV and workshop
staff. Rule 106 specified the appointments and categories
falling under the services mentioned in Rule 105. Rule 108
required the Railway Board to fix the strength of the
Railway Services, Class I and II. There could therefore, be
no question of an officer not falling within the class,
category or cadres specified in rules 105, 106 and 108
claiming to be an 'Assistant Officer' within the meaning of
that expression. A person recruited to the post of Temporary
Assistant Officer not classified as Class I or Class II
Officer could not claim to belong to the Class, category or
cadre spe-
144
cified in Rules 105, 106 and 108 and was, therefore, not an
Assistant Officers within the meaning of that expression
even before the 1975 amendment.
[167 D-F]
(6) There are and there can be no absolutes when the
Court considers claims to justice on complaints of
inequality. The Marxian of a classless society, however
laudable that may be, is evidently not what is sought to be
achieved by Arts. 14 and 16 of the Constitution. The goal is
a limited one. It is equality among comparables. A
necessary, but not necessarily cynical, implication of
equality among comparables is the permissibility of
reasonable classification, having nexus with the object to
be achieved. If two services started and continued
dissimilarly, though they apparently discharged similar
duties, they were not comparable services so as to furnish a
basis for the claim to equality. But if in the same service
there were two sources of recruitment to the same service, a
classification based solely on source of recruitment was not
permissible. [176 E-G]
State of Punjab v. Joginder Singh, [1963] Supp. 2 SCR
169, 191, 192; Roshan Lal Tandon v. Union of India, [1968] 1
SCR 185 and Mervyn Coutindo & Ors. v. Collector of Customs,
Bombay and Ors., [1966] 3 SCR 600; referred to.
(7) Those who were appointed to ex-cadre posts outside
the rules and whose tenure was therefore precarious could
not claim to be treated on the same footing as those who
were appointed strictly in accordance with the rules and
posts borne on the cadre of the service. [177 F-G]
H.S. Varma & Ors. v. Secretary, Ministry of Shipping
and Transport & Ors. [1979] 4 SCC 415 @ 427, 428; referred
to.
(8) The classification of Temporary Assistant Officers
separately from the Indian Railway Service of Engineers
Class I is neither discriminatory nor is violative of
Articles 14 and 16 of the Constitution for the reason that
it had no nexus to the object to be achieved namely
efficiency of service.
[167 G-H]
The service comprising the Temporary Assistant Officers
and the Indian Railway Service of Engineers Class I started
separately and never became one. The objects of their
recruitment were different, the methods of recruitment were
dissimilar and the appointing authority was not the same.
The training that was imparted was also unlike. The very
tenure of the Temporary Assistant Officers was precarious
and their immediate aspiration was only to be absorbed into
the Indian Railway Services of Engineers Class I. These
distinctive features marked out the Temporary Assistant
Officers as a Class apart from the Indian
145
Railway Service of Engineers Class I and therefore there was
no question of entitlement of equal rights with the latter.
Of course, once they were absorbed into the Indian Railway
Service of Engineers they would be entitled not to be
treated differently thereafter. Their seniority would
ordinarily be reckoned from the date of their absorption
into the Indian Railway Service of Engineers, as promised in
their letters of appointment. No doubt these Officers
merited something more than the 'long wait' at the portals
of the Indian Railway Service of Engineers. The Railway
Board however, appears to have tried to make the long wait a
little less tedious by giving them weightage of half of
their length of service as Temporary Assistant Officers,
subject to maximum of five years [177D-G]
Equally important, is the fundamental qualitative
difference, linked with the method of recruitment. True, the
minimum educational qualification is the same. But, those
who are recruited directly to the Indian Railway Service of
Engineers Class I are subjected to stiff and competative,
written and personality tests. Only the very best can aspire
to come out successful. The Temporary Assistant Officers
were not subjected either to a written or to a personality
test but were selected on the basis of an interview by the
Union Public Service Commission. In addition to the minimum
educational qualification, three years' experience as a
Civil Engineer was also prescribed. Thus while brilliance
was the beacon light which beckoned those aspiring to become
members of the Indian Railway Service of Engineers Class I,
it was replaced by experience in the case of those wanting
to be Temporary Assistant Officers. Again the appointing
authority in the case of Indian Railway Service of Engineers
Class I is the President while the appointing authority in
the case of Temporary Assistant Officers was the Railway
Board, no doubt, pursuant to the authority given by the
President. Different courses of training were prescribed for
the Indian Railway Service of Engineers and the Temporary
Assistant Officers. For the Indian Railway Service of
Engineers the training is an intensive and comprehensive one
designed to equip them for higher posts in the Department
too; while the training for Temporary Assistant Engineers
was a brief six months' training intended merely to equip
them for carrying out the specific jobs. In the matter of
terms and conditions of service, while the provisions of the
Indian Railway Establishment Code are fully applicable to
the Indian Railway Service of Engineers Class I, those
provisions are applicable to 'Temporary Assistant Officers'
to the extent there is no specific provision in their letter
of appointment and agreement. [169 C-H]
State of Punjab v. Joginder Singh, [1963] Supp. 2 SCR
169, @ 191, 192, Kishori Mohanlal v. Union of India, A.I.R.
1962 SC 1139, Jammu & Kashmir v. Triloki Nath Khosa and
Ors., [1974] 1 SCR 771 @ 790, 792 Roshan Lal Tandon v. Union
of India, [1968] 1 SCR 185; Mervyn Coutindo and Ors. v.
146
Collector of Customs, Bombay and Ors., [1966] 3 SCR 600,
Mohammad Sujat Ali and Ors. v. Union of India and Ors. etc.,
[1975] 1 SCR 449 @ 481, S.B. Patwardhan and Ors. etc. v.
State of Maharashtra and Ors. [1977] 3 SCR 775; A. K.
Subraman v. Union of India, [1975] 2 SCR 979 and M.S. Verma
and Ors. v. Secty. Ministry of Shipping & Transport and
Ors., [1979] 4 SCC 415 @ 427, 428; discussed.
Observation:
There is nothing 'doctrinaire' in the principle of
"equal pay for equal work" and "equal status for equal pay
and equal work". They are not goals to be scoffed at. It may
be that in the present societal context, the goals may
appear to be distant. But they are goals worthy of
attainment and would be achieved in the not too distant
future. [178 A-B]
JUDGMENT:
ORIGINAL (CIVIL) APPELLATE JURISDICTION: Writ Petition
Nos. 147 to 151 of 1976.
(Under Article 32 of the Constitution)
WITH
SPECIAL LEAVE PETITION (CIVIL) No.7905 OF 1979
From the Judgment and Order dated 29-8-1978 of the
Allahabad High Court, in S.A. No. 887/70.
M.C. Bhandare, Mrs. S. Bhandare and T. Sreedharan for
the Petitioners.
L.N. Sinha, Attorney General, Mr. M.K. Banerjee, Addl.
Solicitor General, R.B. Datar, A.K. Ganguli, R.N. Sachthey
and Miss A. Subhashini for RR 1 and 2.
F.S. Nariman, Anil B. Dawan, P.H. Parekh, C.B. Singh
and R. Karanjwala for RR 1 & 19.
S.C. Gupta and Ramesh Chand for RR 14.
Madan Bhatia and D. Goburdhan for RR 20.
Y.S. Chitale, V.M. Tarkunde, and A.N. Karkhanis for RR
28 and 31.
S.D. Gupta in person for impleading RR in WP 147/76.
Girdharee Singh and S.K. Jain for the Intervener.
147
The Judgment of the Court was delivered by,
CHINNAPPA REDDY, J.-Several hundred Railway Engineers
who should have been busy elsewhere, building bridges,
laying or doubling tracks and so on have found themselves in
the corridors of this Court in pursuit of the leaves of
career. Quite a contingent was present in Court anxiously
watching the proceedings and listening with expect attention
to every word that fell from counsel and judge. One could
not help wondering whether this multitiered. ‘multi-varne’
Service-system was itself not productive of a career
neurosis, destructive of the very efficiency which is sought
to achieve.
2. In this case, as in most other service matters that
reach this Court, the question which arise for consideration
relate to classification, confirmation, seniority, promotion
etc., questions which appear to agitate the minds of the
members of all services. Administrators seeking to find
solutions to some of the problems very soon discover that
their solutions are no more than illusions and have created
other problems. First one party and then another party, all
seek the protection of the Court. The Court is no expert
administrator. Lacking expertise, lacking the
administrator’s access to information, there are obvious
limitations to what the Court may be. The Court may at best
attempt to solve some basic legal issues. That the Court
strives to do without disturbing the administrative
equilibrium.
3. The service with which we are concerned in this Case
is the Indian Railway Service of Engineers, Class I. While
the petitioners claim that they were appointed to this
service after selection by the Union Public Service
Commission, the respondents allege that the petitioners were
appointed as temporary Engineers only, constituting a
special class and service by themselves, and were not
appointed to the Indian Railway Service of Engineers Class I
at all.
4. It appears that from the time of the first Five Year
Plan onwards several important assignments such as the
construction of major bridges, new lines, doubling of
electrification of existing lines etc. were taken up by the
Civil Engineering Department of the Indian Railways. It
became necessary to create a number of temporary posts of
Class I (Indian Railway Service of Engineers) and Class II
Engineers to carry out these works. In 1955 it was estimated
that about 200 additional Engineers would be necessary
within the next two years to deal with the planning,
surveying, estimating and construction of the multitude of
the proposed development works. It was not thought possible
to
148
meet the additional personnel requirements from existing
sources, which were direct recruitment to Class I on the
basis of the results of a competitive examination and
promotion to Class II from Class III. Though the conversion
of some of the temporary posts into permanent ones might
meet part of the requirement, it was thought, recruitment
through normal channel to such posts would necessarily have
to be spread over a period of years so as to avoid ‘bunching
of officers within particular age group’. It was, therefore,
decided to recruit, in the first instance, fifty temporary
Engineers immediately. Their scale of pay was to be the same
as that of the Indian Railway Service of Engineers. The age
limit was to be 25 to 35 years so as to attract Engineers
with practical experience. The appointments were to be
normally made on the minimum of the time scale but persons
with previous experience could be fitted into the scale at a
higher stage. As the posts were to be temporary, it was
decided that an incentive should be given to attract
suitable candidates by reserving a proportion of the
permanent vacancies in the Indian Railway Service of
Engineers each year for being filled by such temporary
Engineers. Six vacancies in the Indian Railway Service of
Engineers were to be so earmarked annually to start with.
The quota could be increased later. On permanent appointment
to the Indian Railway Service of Engineers seniority would
count from the date of such appointment. Proposals on these
lines were conveyed by the Railway Board to the Union Public
Service Commission on February 21, 1955 with a request to
take steps for the early recruitment of temporary Engineers.
A formal requisition in the prescribed form was also sent to
the Union Public Service Commission. In this form, the post
was designated as “Assistant Engineer”, the number of posts
was mentioned as 50, and, the class of service to which the
post belonged was mentioned as “Gazetted Railway Service”.
Against the heading “whether permanent or temporary”, the
posts were mentioned as “temporary”. Against the column “if
the post is temporary, please state : (a) when it was
sanctioned; (b) the period for which it has been sanctioned
and (c) irrespective of the period of sanction how long it
is expected to last and whether it is expected to be
retained on a permanent basis eventually”, it was mentioned
that the posts would be sanctioned shortly in connection
with a number of projects, that the period would be two
years in the first instance but was likely to be extended
upto five years and that the employment might continue
indefinitely but on a temporary basis. It was specified that
the candidates would be eligible to be considered for
absorption in permanent vacancies at the rate of six per
year. The scale was mentioned as Rs. 350-350-380-380-30-590-
E.B.-30-770-40-850, this being the Junior Scale of pay of
Indian Railway Service of Engineers Class I. It was
149
said that higher initial salary was permissible according to
experience and qualifications. The academic qualifications
were to be the same as for regular recruitment to Indian
Railway Service of Engineers. Against the heading prospects
of promotion to higher post it was stated that they might be
considered for promotion to senior scale posts in the grade
of Rs. 600-40-1000-50/2-1150 according to the exigencies of
service. Similar proposals and “indents” for recruitment of
temporary officers to six other departments of the Railways
were also simultaneously made.
5. Pursuant to the requisition by the Railway Board,
the Union Public Service Commission issued an advertisement
inviting applications for “50 posts of Assistant Engineers,
Ministry of Railways, Service Class I (Gazetted), posts
temporary for two years in the first instance but likely to
continue”. The minimum educational qualification was stated
to be a Degree in Civil Engineering, but an additional
qualification of ‘about 3 years experience as a Civil
Engineer’ was also prescribed. The qualification was
relaxable at the discretion of the commission in the case of
candidates otherwise well qualified. It was mentioned in the
advertisement that the candidates would be eligible ‘for
being considered for absorption in permanent vacancies at
the rate of six per year’ and might be considered ‘for
promotion to senior grade posts in the scale of Rs. 600-40-
1100-50/2-1150 according to the exigencies of service’. It
appears that the reference to Class I in the advertisement
was considered by the Railway Board to be a mistake. The
Railway Board, therefore, addressed a letter dated October
31, 1955 to the Union Public Service Commission pointing out
that in their requisition they had indicated “Gazetted
Railway Service” as the service to which recruitment was to
be made and that it was not intended that it should be
either Class I or Class II. It was also mentioned that
statements had been made on the floor of the Lok Sabha and
Rajya Sabha that the posts were “temporary” and “neither in
Class I nor in Class II”. The Commission was accordingly
requested to issue a suitable correction slip. Thereafter,
in the subsequent advertisements issued by the Union Public
Service Commission there was no reference to Class I. It was
merely mentioned that applications were invited for
specified number of posts of “Assistant Engineers (Civil),
Ministry of Railways, posts temporary but likely to
continue”.
6. The petitioners in the various Writ Petitions who
submitted their applications in response to such
advertisements, were selected by the Union Public Service
Commission, at various times between 1955
150
and 1964 and were offered appointments as ‘Temporary
Assistant Engineers’ by the Railway Board. Everyone of them
was told that the appointment would be on a temporary basis
in the scale of Rs. 350-350-380-380-30-590-E.B.-30-770-40-
850. They were also expressly told that the posts to which
they were appointed would be neither in Class I nor in Class
II, service though they were eligible, on completion of
three years service, to be considered alongwith other
temporary Assistant Engineers for absorption in Class I
(Junior Scale) against vacancies ear-marked from time to
time for the absorption of temporary Assistant Engineers in
the Indian Railway Service of Engineers Cadre upto a maximum
of six per year. They were also expressly informed that in
the event of their being selected in Class I Service their
seniority would count from the date of their permanent
appointment to Class I Service. They were required to
execute service agreements “as applicable to temporary
officers”. It was also stipulated that in all matters not
specifically referred to in the order of appointment, the
person appointed would be governed by the provisions of the
Indian Railway Establishment Code and the extant orders
issued from time to time. The petitioners accepted the terms
offered to them and joined duty in the posts to which they
were appointed.
7. The agreements which the petitioners and others like
them were required to execute and which they presumably did
execute (were in a standard form known as ‘Agreement for
Temporary Assistant Officers of the Indian Railways’.
Paragraph 2 of the standard form and agreement specified
that the appointment was in a gazetted post C which is
neither in Class I nor in Class II service) on scale Rs.
350-350-380-380-30-590-E.B.-770-40-850. Paragraph 5
mentioned that the person appointed would be eligible along
with other temporary Assistant Officers “for being
considered for absorption in the permanent vacancies in the
Class I (junior scale) of the……….department upto a
maximum number of vacancies in a year as may be fixed by the
Government” and that in the event of his being selected for
that service his seniority would count from the date of
confirmation. Paragraph 6 recited that he would be
considered for appointment to a Senior Scale post. The
agreement provided that in respect of matters for which no
provision was made in it, the provisions of the Indian
Railway Establishment Code from time to time in force or
rules made thereunder shall apply to the extent they were
applicable to temporary Assistant officers. It was further
provided that the decision of the Government as to their
applicability, interpretation and effect shall be final.
8. It should be mentioned here that though there was no
previous Presidential sanction for making appointments to
posts which were
151
neither in Class I nor in Class II but merely in ‘gazetted
service’, the matter was rectified and Presidential
sanction was subsequently obtained in November, 1956. This
was communicated by the Railway Board to the General
Managers of all Indian Railways by letter No. E-55RC-16 (Pt.
A) dated November, 22, 1956. It was also decided by the
President that the Railway Board of the competent authority
to appoint Temporary Assistant Officers in the various
departments of the Railways. This was mentioned by the Board
in letter No. E. (GF-P) 56RC-16 Pt. A dated 18-12-57
addressed to the General Managers of all Indian Railways.
9. Between the years 1955 and 1964 as many as 553
temporary Assistant Engineers were appointed after selection
by the Union Public Service Commission. Though in their
orders of appointment as temporary Assistant Engineers, the
petitioners and others were told that six of them would be
absorbed into the Indian Railway Service of Engineers Class
I every year, the quota was increased to eight per year in
1957 and fifteen per year in 1961. In 1960 the quota was
fixed at “60% of the actual intake of Probationers from the
CES etc. examinations”. Again in 1975 the quota was
increased to 25 per year. The net result was that all but a
107 temporary Assistant Engineers were left unabsorbed by
the time of the filing of the Writ Petitions and they too
were finally absorbed in 1979 by what was described to us as
a ‘blanket order’. We were informed that the validity of the
absorption on this mass scale is under challenge in some
Writ Petitions filed by members of the Indian Railway
Service of Engineers, Class I. At this juncture we also find
it necessary to mention that the Railway Board decided, on
September 17, 1965, that the temporary officers so absorbed
into the Indian Railway Service of Engineers should also be
given weightage in seniority “on the basis of half the total
number of years of continuous service in working posts on
Railways prior to their permanent absorption into Class I,
subject to a maximum weightage of five years”. This, of
course, was the result of representations made by the
temporary officers. This too we are told is under challenge.
10. The petitioners have filed these Writ Petitions in
a representative capacity purporting to represent all
temporary Assistant Engineers appointed on the
recommendation of the Union Public Service Commission,
claiming that, in law, they could only be and were appointed
to the Indian Railway Service of Engineers Class I right
from the beginning and that the Railway Board was wrong in
treating them as belonging to neither Class I nor Class II.
They claim that they were appointed to temporary posts in
the cadre of Indian Railway Service
152
of Engineers Class I and that their seniority had to be
reckoned on the basis of their length of continuous service,
though they concede that in any given year those appointed
on the basis of the results of the competitive examination
might be placed above those appointed on the basis of the
selection by the Union Public Service Commission. They
contend that the Railway Board had no authority to create an
unclassified service, as it were, outside the provisions of
the Indian Railway Establishment Code. Notwithstanding the
requisitions issued by the Railway Board, the advertisements
issued by the Union Public Service Commission and the
letters of appointment issued to the petitioners, they
contend that they were appointed to the cadre of Indian
Railway Service of Engineers Class I and to no other
service. They contend that they were recruited to Class I
service under rule 130(d) of the Indian Railway
Establishment Code which provides for “occasional admission
of other qualified persons on the recommendations of the
Union Public Service Commission”. They question the vires of
the note to Rule 106 which was added by way of amendment in
1956 and which provided that ‘temporary Assistant Officers
would not be classified either as Class I or as Class II’.
The petitioners claim that the distinction made by the
Railway Administration between Assistant Officers recruited
on the basis of the results of the competitive examination
and the temporary Assistant Officers recruited on the
recommendation of the Union Public Service Commission was
discriminatory and offended Articles 14 and 16. They contend
that all Assistant Officers formed one class under the
Indian Railway Establishment Code. The further
classification of Assistant Officers into those that were
recruited on the basis of a competitive examination and
those that were recruited on the recommendation of the Union
Public Service Commission was a “micro-classification” not
permissible under the law. They point out that the minimum
academic qualifications and the scales of pay of the
Permanent and the Temporary Engineers (for the sake of
brevity the Assistant Officers appointed on the basis of the
results of the competitive examination may hereafter be
described as permanent Engineers while those appointed on
the basis of the recommendation of the Union Public Service
Commission may be described as Temporary Engineers) were
identical, the duties and functions were the same and they
occupied interchangeable posts. They further allege that, in
any case, the right of absorption of six temporary Engineers
only every year into the Indian Railway Service of Engineers
were arbitrary and inequitous. It had resulted in such gross
injustice that two decades of service of several of the
petitioners. was to be counted for nothing.
153
11. Before proceeding to consider the various
contentions raised on behalf of the petitioners it is
necessary to make a brief reference to the history, service
and legal, of one of the many petitioners. Shri Katyani
Dayal was working as an Assistant Engineer in the service of
the Punjab Government from 1952 onwards. He was one of those
who was selected by the Union Public Service Commission and
appointed as a temporary Engineer in 1958. He was drawing
pay in the junior scale. He crossed the Efficiency Bar in
1966 and according to him he was thereafter entitled to be
considered for promotion to the senior scale to the post of
District Officers. He founded his claim on r. 133(3) (c) on
the basis that he was an Assistant Officer within the
meaning of that expression as then defined by r. 102(3). As
he was not so promoted and as it was proposed, on the basis
of some circulars, to promote permanent Engineers of four
years standing, he filed a Writ Petition in the High Court
of Allahabad claiming that he was entitled to be considered
for promotion to officiating post of District Officer. The
Railway Board opposed the claim of Katyani Dayal on the
ground that he was a temporary Assistant Engineer and not an
Assistant Officer and therefore, not entitled to be promoted
in terms of r. 133(3)(c). The Railway Board’s contention was
over-ruled by a learned Single Judge of the High Court and a
direction was given to the Railway Administration to
consider the claim of the petitioner for appointment in
officiating vacancies to the posts of District Officers as
soon as vacancies arose. The Railway Administration was
directed to ignore the circulars which gave preference to
Class I junior scale officers of four years standing or more
as against temporary Assistant Engineers. An appeal filed by
the Railway Administration under the Letters Patent was
dismissed by a Division Bench of the High Court. Though the
Division Bench dismissed the appeal on August 1, 1974, the
Railway Administration did not implement the judgment but
instead on December 12, 1975 amended rule 102(3), 133(3)(c)
and (f) and introduced new rule 102(17) so as to expressly
exclude temporary Assistant Officer [newly defined by r.
102(7) from the category of Assistant Officer and thus make
him ineligible for promotion to the senior scale under r.
133 (3)(c) and (f)].
12. It appears that the status of the temporary
Assistant Engineers recruited on the recommendation of the
Union Public Service Commission has been the subject matter
of the decisions of several High Courts. Some of them have
been placed before us.
13. The relevant provisions of the Indian Railway
Establishment Code may now be referred to.
154
14. Rule 102(3) originally defined an Assistant Officer
to mean ‘a Gazetted Railway Servant drawing pay on the scale
applicable to Junior Scale Officers’, but ‘was not to
include a Class II Officer’. By an amendment made on
December 31, 1975, the expression was redefined and an
‘Assistant Officer’ now ‘means a Gazetted Class I Railway
Servant drawing pay in the junior scale. It does not include
a Class II Officer or a temporary Assistant Officer who is
not classified either as Class I or Class II’.
Prior to December 31, 1975 “Temporary Assistant
Officer” was not defined but by an amendment dated December
31, 1975 “Temporary Assistant Officer” has been defined and
now means “a gazetted Railway servant drawing pay on the
scale applicable to junior Scale Officers but not classified
either as Class I or as Class II Officer”.
Rule 102(13) defines a ‘Railway, Servant’ as meaning a
person who is a member of a service or who holds a post
under the administrative control of the Railway Board,
including a person who holds a post in the Railway Board.
Rules 105 and 106 to the extent they are relevant are
as follows:
“105. For the purpose of the rules in this Volume
the railway services shall be classified as follows:-
Gazetted
(1) The Railway Services, Class I.
(2) The Railway Services, Class II.
Non-gazetted.
(3) The Railway Services, Class III.
(4) The Railway Services, Class IV.
(5) The Workshop Staff.
106. Establishments and categories (including
probationers), falling under the services mentioned in
rule 105, are shown below-
Class I
(1) Posts in the Railway Board;
155
(2) Directors, Joint Directors, Deputy Directors,
Assistant Directors, Railway Board and
Research, Designs and Standards Organisation;
Secretary, Deputy Secretary, Under Secretary
and Section Officers, Grade II, Railway
Board.
(3) Indian Railway Service of Engineers;
(4) Indian Railway Accounts Service;
(5) Indian Railway Traffic Services;
(6) Indian Railway Service of Mechanical Engineers; (7) Indian Railway Service of Electrical Engineers;
(8) Indian Railway Service of Signal Engineers;
(9) Indian Railway Medical Service;
(10) Indian Railway Stores Service;
(11) Senior Revenue Establishment, Indian
Railways, comprising such specialist and
Miscellaneous posts as have been included in
Class I e.g., Chemist and Metallurgists
(Senior Scale) and Chief Cashiers (Senior
Scale).
Class II
Gazetted posts not included in Class I.
Note.-Temporary Assistant Officers will not be
classified either as Class I or Class II.
Class III
———
* * * * *
Class IV
--------
* * * * *
It must be mentioned here that this Note to rule 106 was not
there originally but was added in 1956.
Rule 107 provides that the prescribed scale of pay
admissible to Railway servants belonging to Railway Service
Class I and Class II shall be as specified in appendix XIV.
156
Rule 108 may also be extracted here and it is as follows:
“108. Sanctioned strength of cadres.-Subject to
any statutory provision in this regard, the strength,
including both the number and character of posts of the
Railway Services, Class I and II, shall be determined
by the Railway Board, General Managers of Indian
Railways may create temporary posts in the Railway
Services, Class I and Class II, subject to such limits
as may be laid down by the Railway Board.
Note.-Provided the total number of sanctioned
gazetted post in any grade (Heads of Departments,
Deputy Heads of Departments, District Officers,
Assistant Officers are Class II Officers) of the
service concerned is not exceeded, General Managers are
empowered to vary solely in the public interest having
regard to changes in the work and responsibilities of
the posts, concerned (and not in the interest of
individual officers), the distribution of posts within
that grade for a period not exceeding 12 months”.
Rule 109 to the extent it is relevant in this case
is as follows:
“109. The cadres of the services and departments
included in Railway Services, Classes I and II (other
than the Medical Department and specialists posts) on
Indian Railways shall be fixed in accordance with the
principles stated below :-
(1) Separate cadres shall be maintained for each
Indian Railway.
(2) The number of permanent working posts, that
is, posts required for ordinary duty on the
railway, shall be first determined for each
service or department and divided into the
following grades :-
(i) Administrative,
(ii) District Officers,
157
(iii)Assistant Officers and Class II
Services.
(b) * * * *
(c) The number of posts to be allotted to the
Assistant Officers’ grade shall be calculated
with reference to the total number of
Administrative and District Officers’ Posts,
and shall be so fixed as to allow of a
continuous flow of promotion from the
Assistant Officers’ grade to the higher grade
after a given period of service. For this
purpose, all the administrative posts,
including the general administrative posts,
shall be taken into account.
(d) The rest of the posts included in (a) (iii)
shall be allotted to the Class II Service.
(e) The total number of posts thus arrived at for
each grade in a department shall form the
permanent duty strength of each service or
department.
(3) * * * * (4) * * * *
Rule 112 provides that the number of posts sanctioned
in each grade in a department shall in no case be exceeded
without the sanction of the authority competent to create a
post, either permanent or temporary in the grade.
Rule 116 prescribes that except as provided in r.
133(4) officiating promotion to the Assistant Officer’s
grade or to a higher grade of gazetted Railway Servants from
Class II service or from the non-gazetted establishment is
not permissible.
Rule 118(1) provides that the number of Gazetted
Railway servants on duty in a department shall not exceed
the permanent duty strength sanctioned for that department.
Rule 125 prescribes that all appointments to a Railway
Service Class II shall be made by the President on the
recommendation of the Union Public Service Commission from
time to time in accordance with the rules framed by them.
158
Rule 129 provides that the rate of normal recruitment
shall be determined by the President with reference to the
sanctioned strength of a service or Department.
Rule 130 is important and may be fully extracted here.
It is as follows:
“130. Method of recruitment.-Recruitment to Class
I service in the various departments of Railways shall
be made through-
(a) competitive examination held in India by the
Union Public Service Commission;
(b) promotion of specially qualified gazetted
railway servants of the Class II Service
including officiating gazetted railway
servants of the service or department;
(c) in the case of Transportation (Power) and
Mechanical Engineering Department, by
appointment of candidates as Special Class
Apprentices; and
(d) occasional admission of other qualified
persons on the recommendation of the Union
Public Service Commission.
Note.-The quota reserved for permanent promotion
from Class II to Class I has been fixed at 33-1/3% of
the vacancies in the Junior Scale, Class I (Senior
Scale in the case of Medical Department).
Rule 131 provides that Probationers to the Railway
Service Class I shall be required to undergo a period of
training as may be prescribed by the President.
Rule 132 provides for recruitment to Railway Service
Class II.
Rule 133 deals with promotions to gazetted posts. We
are concerned with rule 133(3)(c) and (f) which to the
extent relevant were previously as follows:
“133. Promotions to gazetted posts.-
(1) * * * *
(2) * * * *
159
(3) The General Manager may appoint-
(a) * * * *
(b) * * * *
(c) An Assistant Officer to officiate as District
Officer, provided that such a gazetted
railway servant who has not passed the
efficiency bar may be so appointed only, if-
(i) a gazetted railway servant who has
passed the efficiency bar is not
available; or
(ii) the vacancy is not expected to exceed
three months;
(d)(e) * * *
(f) substantively, an Assistant Officer to the
District grade provided such promotions are
made in strict order of seniority subject
further to the condition that no officer
shall be so promoted unless he has rendered
not less than ten years of total service and
has been declared fit to cross the efficiency
bar in the junior scale.
Note.-The period of 10 years of total service will
also include the two years of training in the case of
direct recruits. In respect of promoted gazetted
railway servants all those placed in the Seniority list
above the last direct recruit who fulfils the above
condition will receive confirmation in their turn.”
These provisions were also amended on December 31, 1975, and
they are now as follows :-
“(c) an Assistant Officer to officiate in the
Senior Scale provided that such an Assistant Officer
who has not passed the efficiency bar may be so
appointed only, if an
Assistant Officer, who has passed the efficiency bar is
not available;
(d) * * * *
160
(f) substantively, an Assistant Officer to the
Senior Scale, provided such promotions are made in
strict order of seniority subject further to the
condition that no officer shall be so promoted unless
he has rendered not less than eight years of total
service and has been declared fit to cross the
efficiency bar in the junior scale.
Note.-The period of eight years of total service
will also include the two years of training in the case
of direct recruits. In respect of promoted gazetted
railway servants all those placed in the seniority list
above the last direct recruit who fulfils the above
condition will receive a confirmation in their turn”.
Rule 139 makes provision for the making of recruitment
rules and the note to rule 139 provides that in the case of
recruitment to gazetted posts, the rules should be published
in the Gazette of India in the section allotted to Statutory
Rules and Orders.
Rule 144 obliges every railway servant to execute an
agreement with the President of India at the time of his
substantive appointment and further provides that those
appointed for a limited period may also be required to
execute such agreements.
Rule 2003(3) defines cadre as meaning ‘the strength of
a service or a part of a service sanctioned as a separate
unit’.
Rule 2003(22) defines a permanent post as meaning a
post carrying a definite rate of pay sanctioned without
limit of time.
Rule 2003(29) defines a temporary post as meaning a
post carrying a definite rate of pay sanctioned for a
limited time.
Rule 2003(30) defines a tenure post as meaning a
permanent post which an individual Railway servant may not
hold for more than a limited period.
Rule 2003(31) defines time scale of pay and whole of it
may be extracted here:
“(31) (a) Time-scale pay means pay which subject
to any conditions prescribes in these rules, rises by
periodical increments from a minimum to a maximum. It
includes the slabs of pay formerly known as
progressive.
(b) Time-scales are said to be identical if the
minimum, the maximum, the period of increment and the
rate of increment of the time-scales are identical
161
(c) A post is said to be on the same, time-scale
as another post on a time-scale if the two time scales
are identical and the posts fall within a cadre, or a
class in a cadre, such cadre or class having been
created in order to fill all posts involving duties of
approximately the same character or degree of
responsibility, in a service or establishment or group
of establishments; so that the pay of the holder of any
particular post is determined by his position in the
cadre or class, and not by the fact that he holds that
post”.
15. The earlier narrated facts show that for quite
several years it was distinctly understood by the appointing
authority as well as the persons appointed that those who
were appointed as Temporary Assistant Engineers on the basis
of the selection made by the Union Public Service Commission
did not belong either to Class I or to Class II of the
Indian Railway Service of Engineers. It was understood that
they would be eligible for being considered for absorption
in the Indian Railway Service of Engineers Class I in an
annual quota reserved for such absorption and that their
seniority would be reckoned thereafter from the date of
their confirmation in Class I. It was also understood that
they would be eligible for being considered for promotion to
officiating posts in the senior scale. This position in
regard to their status was made clear, without the
possibility of a shadow of doubt, in the letters of
appointment issued to them and the agreements which they
were required to execute. Considerable argument as advanced
on the question whether a service not contemplated by the
Indian Railway Establishment Code could be created and
whether appointments of Gazetted Railway servants not
falling in Class I or Class II and therefore falling outside
the provisions of the Indian Railway Establishment Code
could be made. The submission was that the Indian Railway
Establishment Code did not contemplate a class of service
which did not belong either to Class I or Class II, and that
every gazetted railway servant had to belong either to Class
I or Class II and the question whether the posts to which
appointments were made belonged to Class I or not had to be
determined with reference to the minimum educational
qualifications prescribed for the post, the scales of pay,
the functions and duties etc. It was submitted that
notwithstanding the clear assertion in the letters of
appointment and the agreements, the petitioners must, in
law, be considered to have been appointed to the Indian
Railway Service of Engineers Class I and to no other
service.
16. Art. 53 of the Constitution vests the executive
power of the Union in the President, to be exercised by him
either directly or through
162
officers subordinate to him, in accordance with the
Constitution. Art. 73(1)(a) stipulates that the executive
power of the Union shall extent “to the matters with respect
to which Parliament has power to make laws”. “Union Public
Service and all-India Services” are included in item 70 of
the Union List (List I of the Seventh Schedule) enumerating
the matters with respect to which Parliament has the
exclusive power to make laws. The proviso to Art. 309 of the
Constitution makes it competent for the President or such
person as he may direct in the case of services and posts in
connection with the affairs of the Union, to make rules
regulating the recruitment, and the conditions of service of
persons appointed, to such services and posts until
provision in that behalf is made by or under an Act of the
Parliament to regulate the recruitment and conditions of
service of persons appointed to public services and posts in
connection with the affairs of the Union.
17. The inevitable sequitur from these Constitutional
provisions is that the President, acting directly or through
Officers subordinate to him, is free to constitute a service
(with as many cadres as he chooses), to create posts without
constituting a service or to create posts outside (the
cadres of) the constituted service. The President (or the
person directed by him) may, or, again if he so chooses he
may not, make rules regulating the recruitment and
conditions of service of persons appointed to such service
or posts. He is also free to make or not to make
appointments to such services or posts. Nor is it obligatory
for him to make rules of recruitment etc. before a service
may be constituted or a post created or filled. But if there
is an Act of Parliament or a rule under the proviso to Art.
309 on the matter, the executive power, under Articles 53
and 73, may not be exercised in a manner in consistent with
or contrary to such Act or rule (vide B. N. Nagarajan & Ors.
v. State of Mysore & Ors., State of Kerala v. M. K. Krishan
Nair & Ors., etc. etc.
17a. So, the previous existence of the Indian Railway
Service of Engineers and the rules made for recruitment to
that service do not bar the constitution of another service
or the creation of posts outside the cadres of the Indian
Railway Service of Engineers. That, precisely, was what was
done in 1956 and subsequent years upto 1965. The
administrative expedience and exigence of the time required
the creation of temporary posts outside the cadres of the
Indian Railway
163
Service of Engineers. The circumstances and the reasons
necessitating the creation of these posts of Temporary
Engineers were fully set out in the ‘letters of indent’
addressed by the Railway Board to the Union Public Service
Commission, the details of which have already been mentioned
by us in paragraph 4 supra. The posts so created were not to
be confused with the posts in the cadre of the Indian
Railway Service of Engineers Class I notwithstanding that
the scale of pay and the duties were to be the same. That
the posts were not to be treated as in Class I or in Class
II of the Indian Railway Service of Engineers was expressly
mentioned and clarified in the requisitions made by the
Railway Board to the Union Public Service Commission and the
correspondence which ensued between the Railway Board and
the Union Public Service Commission. It was also made clear
in the letters of appointment and the agreements required to
be executed by the persons appointed. Though to start with
there was no Presidential sanction for the creation of the
posts of Temporary Assistant Officers in the various
Departments of Indian Railways, which were neither in Class
I nor in Class II but merely in gazetted service, the matter
was soon rectified by the grant of Presidential sanction for
the posts in November 1956 and by the President further
specifying the Railway Board as the authority competent to
make appointments of such temporary Assistant Officers. This
is apparent from the letter No. E-55RC-16(Pt. A) dated
November 22, 1956 and letter No. 5 (GF-P)56 RC-16/Pt. A
dated December 12, 1956 to which we have referred in
paragraph 8 supra.
18. The posts of Temporary Assistant Officers were thus
created, and appointments made, under valid authority and
outside the existing cadres of the Indian Railway Service of
Engineers. The letters of “indent”, the advertisements, the
letters of appointment and the agreements show that the
temporary Assistant Officers appointed in this fashion after
selection by the Union Public Service Commission were to be
a source of recruitment to the Indian Railway Service of
Engineers Class I. It was so understood from the inception
by the persons appointed as well as the Railway
Administration. In fact subsequent absorptions into the
Indian Railway Service of Engineers was the sugar, if one
may use such an expression, held cut to those seeking
appointment as temporary Assistant Officers. Year by year a
few Temporary Assistant Officers were indeed absorbed into
the Indian Railway Service of Engineers after selection by a
Departmental Promotion Committee and be it noted, not
automatically on the basis of seniority. If Temporary
Assistant Officers were to be a source of recruitment to the
Indian Railway Service of Engineers Class I, we do not see
how any temporary Assistant Officer could possibly be under
164
any misapprehension that he was appointed to the Indian
Railway Service of Engineers Class I or could claim that he
was appointed to such service.
19. It is not possible to accept the submission that
they must be considered to have been appointed under r.
130(d) of the Indian Railway Establishment Code which
provides for occasional admission of other qualified persons
on the recommendation of the Union Public Service Commission
merely because they were selected for appointment by the
Union Public Service Commission, their scale of pay was the
same as that of the Class I Junior Scale Officers of the
Indian Railway Service of Engineers and their duties were
the same. There were special reasons for recruiting
Temporary Assistant Officers outside the cadres of the
Indian Railway Service of Engineers and when it was
admittedly and avowedly so done, and when right through such
officers were merely treated as a source of recruitment to
the Indian Railway Service of Engineers, it would not be
permissible for us to hold that the Temporary Assistant
Officers were recruited to the cadre of the Indian Railway
Service of Engineers Class I.
20. One of the submissions of the petitioners was that
whatever the Railway Board might be asserting now or might
have asserted even from the inception, factually, the
Temporary Assistant Officers were appointed to temporary
posts borne on the cadre of Indian Railway Service of
Engineers Class I and not to any ex-cadre posts. It was
submitted that the posts to which appointments were made
were not temporary posts in the sense that they were posts
of short duration; they were posts, which admittedly were
likely to continue indefinitely and even made permanent. The
appointments could, therefore, have only been made to
temporary posts borne on the cadre of the Indian Railway
Service of Engineers. We do not think that there is any
substance in these submissions. It is no doubt true that a
cadre may consist of permanent as well as temporary posts
and there may be permanent vacancies in permanent as well as
temporary posts borne on the cadre. But it does not follow
that appointments stated to be made to posts outside the
vary service and therefore necessarily outside the cadre
must be considered to be made to temporary posts borne on
the cadre merely because the posts were likely to continue
indefinitely and did so continue. We do not see how we can
ignore the very purpose of scheme of recruitment of
Temporary Assistant Officer which was to recruit Temporary
Assistant Officers outside the existing Service and cadres
to meet the anticipated requirements of certain special
objects. Even in the requisition made in the prescribed form
by the Railway Board to the Union Public Service Commission
it was men-
165
tioned “the posts will be sanctioned shortly in connection
with a number of projects”. It was not mentioned that the
posts were already borne on the cadre of the Indian Railway
Service of Engineers. Our attention was invited to the
Annual Administrative Reports where, it was said, no
distinction was made between classified and unclassified
service. We do not think that these reports are of the
slightest help. The reports merely refer to appointments,
temporary as well as permanent, made in the gazetted service
by direct recruitment. Gazetted Railway services must
include both the Indian Railway Service of Engineers and the
Gazetted Railway Service constituted by the temporary
Assistant Officers. Therefore, by merely taking into account
the number of Temporary Assistant Officers for the purpose
of calculating the total number of persons appointed to
Gazetted Railway Service it cannot conceivably be said that
Temporary Assistant Officers were appointed to cadre posts
in the Indian Railway Service of Engineers. Our attention
was also invited to the classified lists of Officers
published by the Railway Board. This list takes the case of
the petitioners no further. There is nothing in the list to
indicate that persons who were appointed as Temporary
Assistant Officers were appointed to posts borne on the
cadre of Indian Railway Service of Engineers. On the other
hand under the column “Date of appointment to Class” no
entry is made against the names of any of the Temporary
Assistant Officers who had not yet been absorbed into the
Indian Railway Service of Engineers. We were also referred
to the reports of the Administrative Reforms Commission
where it is said “In the Railways there is a sizeable number
of unclassified posts equivalent to Junior Class I and only
a small number of them are taken each year into the regular
service”. This statement does not support the case of the
petitioners that they were appointed to posts borne on the
cadre of Indian Railway Service of Engineers. Far from it.
Passages from the reports of the Central Pay Commission were
also read out to us to emphasize that the posts have
continued over the years indefinitely. If posts were
initially created and sanctioned for short periods, we do
not see how the subsequent continuance of the posts
indefinitely would make persons appointed to the posts
members of the regular service, namely, the Indian Railway
Service of Engineers Class I.
21. Considerable argument was advanced on the question
of the ‘status’ and the effect of the ‘note’ found below
rule 106. It was said that the note did not form part of the
rules made by the President under the proviso to Article 309
of the Constitution and therefore it could not amend the
other statutory rules. The note was neither declaratory nor
explanatory and was of no affect whatever. We think that the
argument regarding the ‘status’ and the effect of the note
is of no real
166
relevance. The note merely states an existing fact known to
all concerned. It was known that posts of Temporary
Assistant Officers in gazetted railway service who were not
to be classified ‘either as Class I or as Class II’ had been
sanctioned by the President who had designated the Railway
Board as the authority competent to make appointments to
those posts. The note below rule 106 merely stated this
fact. With or without the note, the Temporary Assistant
Officers would still not be classified either as Class I or
Class II. Their classification outside Class I and Class II
was not dependant on the note but on the Presidential action
in regard to the creation of the posts.
22. This is perhaps an appropriate stage for referring
to the amendments, introduced in 1975, to the Indian Railway
Establishment Code. The expression ‘Temporary Assistant
Officers’, which was not previously defined in the Railway
Establishment Code, was sought to be defined by new clause
17 of R. 102 to mean “a Gazetted Railway Servant drawing pay
on the scale applicable to Junior Scale Offices but not
classified either as Class I or as Class II Officer”. The
expression Assistant Officer was redefined so as not to
include a Temporary Assistant Officer who was not
‘classified either as Class I or as Class II’. Apart from
the principal submission that the 1975 amendments were
violative of Arts. 14 and 16 of the Constitution, it was
submitted that the amendments were prospective in nature and
did not affect the petitioners all of whom had been
appointed as Temporary Assistant Officers long prior to the
1975 amendment. We do not think that the amendments have any
effect one way or the other on the status of the Temporary
Assistant Officers. What was always well known to the
Temporary Assistant Officers and the Railway Board and what
was the inevitable result of the Presidential sanction for
the creation of posts which were not to be classified either
as Class I or Class II, was made explicit in the Indian
Railway Establishment code also by the introduction of these
amendments. This became necessary because in the Writ
Petition filed by Katyani Dayal, the Allahabad High Court,
while appearing to hold that Temporary Assistant Officers
belonged neither to Class I nor to Class II service, held
that they came within the then existing definition of
‘Assistant Officer’ so as to entitle them for promotion
under r. 133 of the Indian Railway Establishment Code. We
are afraid it was the use of the expression ‘Temporary
Assistant Officer’ that has led to considerable confusion.
The expression ‘Temporary Assistant Officer’ was coined to
describe the new post created for the first time in 1955.
The expression was not used to signify officers temporarily
holding the posts of Assistant Officers in the several
established Railway Services. For instance a Class II
Assistant Engineer
167
who is temporarily promoted to hold the post of an Assistant
Engineer Class I may be described as a Temporary Assistant
Officer but he certainly would not be a ‘Temporary Assistant
Officer’ appointed to any of the posts specially created by
the President which were neither in Class I nor in Class II.
The word ‘Temporary’ in the expression ‘Temporary Assistant
Officer’ was not used to qualify the words Assistant
Officer. The whole of the expression was intended to
describe the particular post, which was neither in Class I
nor Class II, which was created in 1955. There would not
have been any confusion and it would have been much happier
if instead of the expression Temporary Assistant Officer
some other expression such as Special Assistant Officer or
Special Assistant Engineer had been chosen. We are of the
view that the Allahabad High Court was not justified in
looking at the amended definition of ‘Assistant Officer’ in
isolation and concluding that the expression ‘Assistant
Officer’ included Temporary Assistant Officer because
Temporary Assistant Officer was also a gazetted Railway
servant who drew the junior scale of pay. The definition of
Assistant Officer was not to be read in isolation in that
manner. It should have been read conjunctively with Rules
105, 106 and 108. A reference to Rule 105 would show that
for the purposes of the rules in the Indian Railway
Establishment Code, Railway services were to be classified
into Class I, Class II, Class III, Class IV and Workshop
staff. Rule 106 specified the appointment and categories
falling under the services mentioned in Rule 105. Rule 108
required the Railway Board to fix the strength of the
Railway Services’ Class I and Class II. There could
therefore, be no question of an officer not falling within
the class, category or cadre specified in rules 105, 106 and
108 claiming to be an ‘Assistant Officer’ within the meaning
of that expression. A person recruited to the post of
‘Temporary Assistant Officer’ not classified as Class I or
Class II Officer could not claim to belong to the Class,
category or cadre specified in Rules 105, 106 and 108 and
was, therefore, not an Assistant Officer within the meaning
of that expression even before the 1975 amendment.
23. We now come to the principal submission made to us
namely that the classification of Temporary Assistant
Officers separately from the Indian Railway Service of
Engineers Class I was discriminatory and had no nexus to the
object to be achieved namely efficiency of service and was,
therefore, violative of Articles 14 and 16 of the
Constitution. It was argued that the minimum academic
qualification for the posts of ‘Temporary Assistant Officer’
was the same as that prescribed for entry into the Indian
Railway Service of Engineers Class I, the scale of pay of
‘Temporary Assistant Officer’ was the same as hat of a Class
I Officer of Junior Scale, the functions and duties were
168
similar and on all matters not expressly provided, the
Temporary Assistant Officers like Class I officers were to
be governed by the provisions of the Railway Establishment
Code and the Rules made thereunder. There was so much
identity on all vital and important matters that the
classification of ‘Temporary Assistant Officers’ outside the
Indian Railway Service of Engineers Class I was arbitrary.
It led to all manner of discrimination in the matter of
advancement in service, seniority, promotion etc. The
unfairness of it all was sought to be graphically
demonstrated by pointing out how after twenty years of
service Temporary Assistant Officers continued to be
Temporary Assistant Officers while Class I officers
recruited much later were placed much higher than them in
order of seniority and had risen to much higher positions in
the service. Another limb of the argument on the question of
discrimination was that all Assistant Officers whether they
were permanent Assistant Officers or Temporary Assistant
Officers constituted a single cadre and it was not
permissible to further classify them on the basis of the
manner of their recruitment, namely, by competitive
examination or by selection by the Union Public Service
Commission. Part of this submission has already been met by
us and we have shown how Temporary Assistant Officers are
not Assistant Officers within the meaning of that expression
in the Indian Railway Establishment Code.
24. It is true that the minimum educational
qualification for the post of Temporary Assistant Officer
was the same as that for recruitment to the Indian Railway
Service of Engineers Class I. It is true that the scale of
pay is the same, and the functions and duties are the same.
It is also true that except to the extent provided, the
Temporary Assistant Officers were also subject to the
provisions of the Indian Railway Establishment Code and the
rules made thereunder. But, there are certain fundamental
differences between two classes which cannot be ignored and
which demand attention. To begin with, the object of
recruitment to the Indian Railway Service of Engineers is to
provide Officers of the highest quality to meet the
requirements of all posts in the service including Senior
Administrative posts. Rule 109(2)(c) of the Indian Railway
Establishment Code, extracted earlier expressly provides
that the number of posts to be allotted to the Assistant
Officers’ grade shall be calculated with reference to the
total number of administrative and District Officers’ posts,
and shall be so fixed as to allow of a continuous flow of
promotion from the Assistant Officers’ grade to the higher
grades after a given period of service. For this purpose all
the administrative posts including the general
Administrative posts are required to be taken into account.
On the
169
other hand the object of recruiting Temporary Assistant
Officers was to meet specific requirements of various
projects with a prospect of promotion in a temporary
capacity to a senior scale post and absorption into the
Indian Railway Service of Engineers Class I. They were not
to be members of the Indian Railway Service of Engineers but
were to be a source of recruitment to the Indian Railway
Service of Engineers. Thus the very appointments of
Temporary Assistant Officers were to temporary posts outside
the cadre and outside the recruitment rules of the Indian
Railway Service of Engineers Class I and the very nature of
this tenure was precarious, whereas Class I Officers
recruited on the basis of a result of competitive
examination were appointed to cadre posts strictly in
accordance with the recruitment rules.
25. Next and equally important, is the fundamental
qualitative differences, linked with the method of
recruitment. True, the minimum educational qualification is
the same. But, those who are recruited directly to the
Indian Railway Service of Engineers Class I are subjected to
stiff and competitive, written and personality tests. Only
the very best can aspire to come out successful. The
Temporary Assistant Officers were not subjected either to a
written or to a personality test but were selected on the
basis of an interview by the Union Public Service
Commission. In addition to the minimum educational
qualification, three years’ experience as a Civil Engineer
was also prescribed. Thus while brilliance was the beacon
light which beckoned those aspiring to become members of the
Indian Railway Service of Engineers Class I, it was replaced
by experience in the case of those wanting to be Temporary
Assistant Officers. Again the appointing authority in the
case of Indian Railway Service of Engineers Class I is the
President while the appointing authority in the case of
Temporary Assistant Officers was the Railway Board, no
doubt, pursuant to the authority given by the President.
Different courses of training were prescribed for the Indian
Railway Service of Engineers and the Temporary Assistant
Officers. For the Indian Railway Service of Engineers the
training is an intensive and comprehensive one designed to
equip them for higher posts in the Department too, while the
training for Temporary Assistant Engineers was a brief six
months’ training intended merely to equip them for carrying
out the specific jobs. In the matter of terms and conditions
of service, while the provisions of the Indian Railway
Establishment Code are fully applicable to the Indian
Railway Service of Engineers Class I, those provisions are
applicable to “Temporary Assistant Officers” to the extent
there is no specific provision in their letter of
appointment and agreement.
170
26. Keeping in mind these similarities and
dissimilarities, let us examine the legal position. We
cannot do better than to refer to the decisions cited at the
Bar, not all, but a few illustrative cases.
27. In State of Punjab v. Joginder Singh, the question
arose whether the constitution by the State of two Services
consisting of employees doing the same work but with
different scales of pay or subject to different conditions
of service such as promotional opportunities was violative
of Articles 14 and 16 of the Constitution. The argument
based on the postulate that equal work must receive equal
pay was repelled by quoting the following observations from
an earlier decision of the Court in Kishori Mohanlal v.
Union of India.:
“The only other contention raised in that there is
discrimination between Class I and Class II officers
inasmuch as though they do the same kind of work their
pay scales are different. This, it is said, violates
Art. 14 of the Constitution. If this contention had any
validity, there could be no incremental scales of pay
fixed dependant on the duration of an officer’s
service. The abstract doctrine of equal pay for equal
work has nothing to do with Art. 14. The contention
that Art. 14 of the Constitution has been violated
therefore, also fails.”
The second postulate that if there was equality in pay and
work there must be equal conditions of service was rejected
as unsound. It was observed (at p. 191-192):
“If, for instance, an existing service is
recruited on the basis of a certain qualification, the
creation of another service for doing the same work, it
might be in the same way but with better prospects of
promotion cannot be said to be unconstitutional, and
the fact that the rules framed permit free transfers of
personnel of the two groups to places held by the other
would not make any difference. We are not basing this
answer on any theory that if a government servant
enters into any contract regulating the conditions of
his service he cannot call in aid the constitutional
guarantees because he is bound by his contract. But
this conclusion rests on different and wider public
grounds, viz., that the government which is carrying on
the administration has necessarily to have a choice in
the constitution of the services to man the
administration and that the limitations imposed by the
constitution are not
171
such as to preclude the creation of such services.
Besides, there might, for instance, be temporary
recruitment to meet an exigency or an emergency which
is not expected to last for any appreciable period of
time. To deny to the government the power to recruit
temporary staff drawing the same pay and doing the same
work as other permanent incumbents within the cadre
strength but governed by different rules and conditions
of service, it might be including promotions, would be
to impose restraints on the manner of administration
which we believe was not intended by the constitution.’
Examining the facts of the case before them the Court
noticed that the two services started as independent
services, the qualifications prescribed for entry into each
were different, the method of recruitment and the machinery
for recruitment were different and they continued as
different services and were never interpreted into one
service. The Court said (at p. 193):
“If they were distinct services, there was no
question of inter se seniority between members of the
two services, nor of any comparison between the two in
the matter of promotion for founding an argument based
upon Art. 14 or Art. 16(1). They started dissimilarity
and they continued dissimilarly and any dissimilarity
in their treatment would not be a denial of equal
opportunity, for it is common ground that within each
group there is no denial of that freedom guaranteed by
the two Articles”.
28. In State of Jammu & Kashmir v. Triloki Nath Khosa &
Ors. a rule which provided that only those Assistant
Engineers who possessed a degree in Engineering would be
eligible for promotion as Executive Engineer and which
totally denied any opportunity for promotion to Assistant
Engineers who were Diploma holders was challenged as
infringing the fundamental rights guaranteed by Articles 14
and 16 of the Constitution. Under the rules, recruitment to
the cadre of Assistant Engineer was to be made by direct
recruitment of Degree holders in Civil Engineering or by
transfer of degree or diploma holders who had served as
Supervisors for a period of not less than five years. The
argument was that degree holders and diploma holders having
been integrated into a common class of Assistant Engineers,
there was no justification for the classification for
promotion to the post of Executive Engineer. The Court
upheld the rule and held that the classification of
Assistant Engineers into degree-holders
172
and Diploma-holders could not be said to rest on any unreal
or unreasonable basis. Classification made with a view to
achieving administrative efficiency in the Engineering
Service was clearly co-related to higher educational
qualifications since higher educational qualifications was
atleast presumptive evidence of higher mental equipment.
Educational qualification was always recognised as a safe
criteria for determining the validity of classification. The
earlier decisions of the Court in Roshan Lal Tandon v. Union
of India, and Moryan Coutindo & Ors. v. Collector of
Customs, Bombay & Ors., were distinguished on the ground
that they were cases where direct recruits and promotes who
were fused into a common stream of service were sought to be
treated differently by reference to the consideration that
they were recruited from different sources whereas in the
case before the Court the classification rested fairly and
squarely on the consideration of educational qualifications.
It was pointed out that the earlier cases did not rule out a
classification on a basis other than that they were drawn
from different sources. However, while upholding the
validity of the rule Chandrachud, J., and Krishna Iyer, J.,
uttered words of caution and it is upon these words of
caution that the petitioners rely. Chandrachud, J., said (at
p. 790):
“But we hope that this judgment will not be
construed as a charter for making minute and
microcosmic classifications. Excellence is, or ought to
be, the goal of all good government and excellence and
equality are not friendly bed-fellows. A pragmatic
approach has therefore to be adopted in order to
harmonize the requirements of public services with the
aspirations of public servants. But let us not evolve
through imperceptible extensions, a theory of
classification which may subvert, perhaps submerge, the
previous guarantee of quality. The eminent spirit of an
ideal society is equality and so we must not be left to
ask in wonderment. What after all in the operational
residue of equality and equal opportunity?”
Krishna Iyer, J., said (at p. 792):
“Mini-classifications based on micro-distinctions
are false to our egalitarian faith and only substantial
and straightforward classifications plainly promoting
relevant goals can have constitutional validity. To
overdo classification is to undo equality”.
173
29. In Mohammed Shujat Ali & Ors. etc. v. Union of
India & Ors. etc. one of the questions which arose for
consideration was whether the distinction made between
Graduate Supervisors and non-Graduate Supervisors and the
allocation, to these categories, of three and one vacancies
respectively out of every four vacancies in the next higher
promotional posts was violative of Articles 14 and 16 of the
Constitution. After quoting with approval the observations
of Chandrachud, J., and Krishna Iyer, J., in State of J. & K
v. Trilokinath Khosa (supra). Bhagwati J., observed (at p.
481):
“To permit discrimination based on educational
attainments not obliged by the nature of the duties of
the higher post is to stifle the social thrust of the
equality clause. A rule of promotion which, while
conceding that non graduate Supervisors are also fit to
be promoted as Assistant Engineers, reserves a higher
quota of vacancies for promotion for graduate
supervisors as against non-graduate Supervisors, would
clearly be calculated to destroy the guarantee of equal
opportunity”.
After saying so much the Court, however, upheld the rule
which made the differentiation between Graduate and non-
Graduate Supervisors on the ground that the differentiation
had not been made for the first time by the impugned rule
and graduate Supervisors had always been treated as a
distinct and separate class and the two were never
integrated into one class. Since the two categories of
Supervisors were never fused into one class, it was held,
there was no question of unconstitutional discrimination on
the ground of differential treatment being given to them.
30. In S. B. Patwardhan & Ors. v. State of Maharashtra
& Ors. the question concerned a formula of seniority. Direct
recruits and promotees, though drawn from two different
sources, constituted, in that case, a single integrated
cadre. They discharged identical functions, bore similar
responsibilities and acquired an equal amount of experience
in their respective assignments. Yet, the formula provided
that probationers recruited during any year shall in a bunch
be treated as senior to promotees confirmed in that year.
While the formula gave to the direct recruits the benefit of
even the one year’s period of training and another year’s
period of probation for the purposes of seniority, it denied
to promotees the benefit of their long and valuable
experience. There was no intelligible ground for the
differentiation, bearing nexus with efficiency in public
service.
174
‘Confirmation was one of the inglorious uncertainties of
government service depending neither on efficiency of the
incumbent nor on the availability of substantive vacancies,
and it was on confirmation that the promotees seniority was
made to depend. The formula was struck down by the Court.
Reliance was placed on the decision of the Court in A. K.
Subraman v. Union of India, where it had been held, while
interpreting rules relating to Central Engineering Service
Class that though in cases where recruitment was made from
different sources a quota system could be validly applied,
the quota rule was to be enforced at the time of initial
recruitment to the post of officiating Executive Engineer
and not at the time of their confirmation. The Court had
further observed that there was a well recognised
distinction between promotion and confirmation and that the
tests to be applied for the purpose of promotion were
entirely different from those that had to be applied at the
time of confirmation.
31. In H. S. Verma & Ors. v. Secretary, Ministry of
Shipping & Transport & Ors.(2), the facts were somewhat
peculiar. Certain persons were directly recruited to the
Engineering Service of the Ministry of Shipping and
Transport (Roads Wing) as a result of a written competitive
examination. Certain other persons were also directly
recruited but by interview through the Union Public Service
Commission, although such a method of selection was not
contemplated by the rules. In 1966 a rule was added
providing for selection by interview through the Union
Public Service Commission. The 1966 rule was held not to be
retrospective in some Writ Petitions filed in the Delhi High
Court by the persons who had been recruited as a result of
written competitive examination. The High Court while
holding that the amendment was not retrospective did not
hold that those appointed prior to 1966 by the interview
method were not regularly appointed. Instead, the High Court
held that they were appointed and promoted to ex-cadre
posts. In 1973 a notification was issued by the Government
to the effect that the Officers appointed by the interview
method must be deemed to have been industed into the service
as temporary officers in 1966. Later in 1976 the Government
decided to set up two Services to be called the Central
Engineering Service (Roads). Group ‘A’, comprising of
Officers appointed by the method of examination and the
other the Central Engineering Pool, Group ‘A’, comprising of
officers appointed by the method of interview. Officers of
both the services were eligible to be promoted to certain
posts called “isolated posts”. Appointments to the ‘isolated
posts’ were to be made by selection or promotion, as the
case may be, on the recommendation of a Departmental Pro-
175
motion Committee from an integrated list of officers to be
drawn up on the basis of the length of their continuous
service in their respective grades. The officers appointed
by the method of interview assailed the rules contending
that though they were appointed to their posts long before
the officers appointed by the method of competitive
examination, they would rank much below the latter in the
list of seniority and would consequently be denied
promotional opportunities to higher posts. Having regard to
the very complicated nature of the facts, the Court after
discussion with the learned counsel appearing for the
various parties and the Government made an order, which they
thought was best and just in all the circumstances of the
case. While issuing the directions certain observations were
made. It was said (at p. 427):
“….We are unable to suggest the contention that
persons holding similar posts and having similar
responsibilities to discharge can be classified into
different categories for the mere reason that some of
them were recruited directly by the interview method
and some were recruited directly on the result of a
competitive examination. Were it permissible to make
such classifications, ingenuity may suggest the nature
of curriculum in different years as the basis of
classification. If subjection to different kinds of
tests as a condition of eligibility produces
qualitative difference in the ability of persons
recruited to similar posts, it may perhaps become
necessary to limit the promotional opportunities, in
regard to the relatively higher posts, to those whose
abilities are remarkably higher. But, it is nobody’s
case and the Government has made no grievance that the
petitioners who were appointed by the interview method
are in any way inferior in ability, efficiency or
educational qualifications to those who were appointed
after a written competitive examination. In the matter
of experience too, the petitioners are in no way
inferior to the contesting respondents”.
The Court however, took care to add:
“Though classification which proceeds merely on
the basis that certain persons were recruited after
going through one test and certain others after going
through another test would be unscientific, it cannot
be said on the facts of the instant case that there can
be no valid basis or justification for classifying the
various officers of the Roads Wing into separate
categories. As we have stated earlier,
176
the appointments of some of the petitioners and some of
the respondents were made in violation of the rules
which were in force at the relevant time. It is in
respect of that class of persons that the Delhi High
Court was driven to hold that they must be deemed to
have been appointed to ex-cadre posts….. But, the
fact remains that persons who were appointed contrary
to the rules but to ex-cadre posts were taken initially
for purposes of certain projects to which we have
already referred. Their precarious tenure was continued
from time to time but that will not furnish
justification for treating them on the same footing as
others whose appointments were made strictly in
accordance with the rules and who were appointed to
posts borne on the cadre of the Central Engineering
Service. A division of these two classes of officers
into separate categories will remove possible injustice
to those who were appointed to cadre posts in that
their promotional opportunities will not be blocked or
hindered by ex-cadre officers who were recruited on a
large scale to meet an urgent necessity. Such a
classification will also minimise the injustice which
would otherwise have been caused to those who were
appointed to ex-cadre posts”.
We have referred, without comment, to a few earlier
decisions of this Court and quoted the observations of
learned Judges therein. These decisions and the observations
extracted therefrom illustrate and emphasise that there are
and there can be no absolutes when we consider claims to
justice on complaints of inequality. The Marxian ultimate of
a classless society, however laudable that may be, is
evidently not what is sought to be achieved by Articles 14
and 16 of the Constitution. The goal is a limited one. It is
equality among comparables. A necessary, but not necessarily
cynical, implication of equality among comparable is the
permissibility of reasonable classification, having nexus
with the object to be achieved. So, it was said that if two
services started and continued dissimilarly, though they
apparently discharged similar duties, they were not
comparable services so as to furnish a basis for the claim
to equality (State of Punjab v. Joginder Singh) (supra).
But, if in the same service there were two sources of
recruitment to the same posts, a classification based solely
on source of recruitment was not permissible (Roshan Lal
Tandon v. Union of India, and Mervyn Coutinda & Ors. v.
Collector of Customs, Bombay & Ors.) (supra). This was also
the principle of the decision in S. B. Patwardhan & Ors.
etc. etc. v. State of Maharashtra & Ors. (supra). Even so,
Chandrachud, J., Krishna Iyer,
177
J., and Bhagwati, J., had to recognise, even if reluctantly,
that even among the members of the same service, a
classification based otherwise than on mere source of
recruitment such as educational qualification was at times
permissible. But necessary words of caution against making
‘minute and micro-cosmic’ classifications were uttered.
(State of Jammu & Kashmir v. Trilokinath Khosa, (Supra) and
Mohammad Shujat Ali & Ors. etc. v. Union of India & Ors.
etc. (supra). Chandrachud, J., however drew the line when
among members of the same service a classification was
sought to be made between those who had been recruited on
the basis of results of a competitive examination and those
who had come in by the method of interview. But, here again
he felt constrained to say that those who were appointed to
ex-cadre posts outside the rules and whose tenure was
therefore precarious could not claim to be treated on the
same footing as those who were appointed strictly in
accordance with the rules and to posts borne on the cadre of
the service (H. S. Verma & Anr. v. Secretary, Ministry of
Shipping & Transport & Ors.) (supra).
If we now look at the facts of the case before us, we
find that the service comprising the Temporary Assistant
Officers and the Indian Railway Service of Engineers Class I
started separately and never became one. The objects of
their recruitment were different as explained earlier, the
methods of recruitment were dissimilar and the appointing
authority was not the same. The training that was imparted
was also unlike. The very tenure of the Temporary Assistant
Officers was precarious and their immediate aspiration was
only to be absorbed into the Indian Railway Service of
Engineers class I. These distinctive features marked out the
Temporary Assistant Officers as a Class-apart from the
Indian Railway Service of Engineers Class I and therefore
there was no question of entitlement of equal rights with
the latter. Of course, once they were absorbed into the
Indian Railway Service of Engineers they would be entitled
not to be treated differently thereafter. Their seniority
would ordinarily be reckoned from the date of their
absorption into the Indian Railway Service of Engineers, as
promised in their letters of appointment. No doubt these
officers merited something more than the ‘long wait’ at the
portals of the Indian Railway Service of Engineers. The
Railway Board however, appears to have tried to make the
‘long wait’ a little less tedious by giving them weightage
of half of their length of service as Temporary Assistant
Officers, subject to a maximum of five years. We wish to say
nothing about the validity of such weightage as we
understand it is in question elsewhere.
Though we are denying the claim of the petitioners to
equality because of the history, origin, and structure of
the Services and the
178
existing legal position in relation thereto, we do not wish
to be understood as saying that there is any thing
‘doctrinaire’ in the principles of ‘equal pay for equal
work’ and ‘equal status for equal pay and equal work’. They
are not goals to be scoffed at. It may be that in the
present societal context the goals appear to be distant. But
they are goals worthy of attainment and let us hope, with no
overtones of cynicism, that these goals will be achieved in
the not too distant future.
All the Writ Petitions and applications for the grant
of Special Leave are dismissed but without any order as to
costs.
S.R. Petitions dismissed.
179