{"id":9292,"date":"1980-03-26T00:00:00","date_gmt":"1980-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/katyani-dayal-and-ors-vs-union-of-india-and-ors-on-26-march-1980"},"modified":"2016-06-05T22:12:49","modified_gmt":"2016-06-05T16:42:49","slug":"katyani-dayal-and-ors-vs-union-of-india-and-ors-on-26-march-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/katyani-dayal-and-ors-vs-union-of-india-and-ors-on-26-march-1980","title":{"rendered":"Katyani Dayal And Ors vs Union Of India And Ors on 26 March, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Katyani Dayal And Ors vs Union Of India And Ors on 26 March, 1980<\/div>\n
Equivalent citations: 1980 SCR (3) 139, \t 1980 SCC (3) 245<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nKATYANI DAYAL AND ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT26\/03\/1980\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nSARKARIA, RANJIT SINGH\nPATHAK, R.S.\n\nCITATION:\n 1980 SCR  (3) 139\t  1980 SCC  (3) 245\n\n\nACT:\n     Temporary\t Assistant   Engineers,\t  gazetted   service\nrecruited by  Railway Board-Neither classified as Class I or\nClass II but given the junior scale of pay of Indian Service\nof Engineers  Class I,\tand eligible  to be  considered\t for\nabsorption in  permanent vacancies  as per  quota fixed\t per\nyear-Whether belong  to\t the  cadre  of\t Indian\t Service  of\nEngineers-Whether treating  them  purely  temporary  offends\nArticles 14 and 16 of the Constitution-Constitution of India\nArticles 53,  73(1) (a) and 109-Indian Railway Establishment\nRules 102(3) (13), 105, 106-109, 112, 116, 118(i), 125, 129,\n130-133, 140 and Rule 2003(3), (22), (29), (30), (31).\n\n\n\nHEADNOTE:\n     Several assignments  such as  the construction of major\nbridges, new  lines,  doubling\tof  and\t electrification  of\nexisting lines etc. were taken up the Engineering Department\nof the\tIndian Railways\t and to\t carry out  these  works,  a\nnumber of temporary posts of Class I (Indian Railway Service\nof Engineers)  and Class  II engineers\twere created. It was\nnot  thought   possible\t  to   meet   additional   personnel\nrequirements from  existing sources, i.e. direct recruitment\nto Class I by competitive examination and promotion to class\nII from\t class III.  Instead, under  a\tspecial\t scheme\t the\nvarious writ  petitioners were\tappointed at  various  times\nbetween 1955  and 1964\tas temporary  Assistant Engineers by\nthe Railway  Board. Everyone  of  them\twas  told  that\t the\nappointment, would be on a temporary basis, that the post to\nwhich they were appointed would be neither in Class I nor in\nClass II service though they were eligible, on completion of\nthree year's  service, to  be considered  along\t with  other\ntemporary Assistant  Engineers for  absorption\tin  Class  I\n(Junior Scale)\tagainst vacancies  ear-marked from  time  to\ntime for  such absorption  in the  Indian Railway Service of\nEngineers cadre\t upto a maximum of six per year, and that in\nthe event  of their  being selected in Class I Service their\nseniority  would  count\t from  the  date  of  the  permanent\nappointment to\tClass  I  service.  They  were\trequired  to\nexecute\t service  agreements  \"as  applicable  to  temporary\nofficers\". The\tpetitioners accepted  the terms\t offered  to\nthem and  joined  duty\tin  the\t post  to  which  they\twere\nappointed. The\tpetitioners also  executed agreements  in  a\nstandard form  known as\t \"Agreement for\t Temporary Assistant\nOfficers of the Indian Railways\".\n140\n     Though in\ttheir orders  of  appointment  as  temporary\nAssistant Engineers  the petitioners  and others  were\ttold\nthat six  of them  would be absorbed into the Indian Railway\nService of  Engineers Class  I every  year,  the  quota\t was\nincreased to  eight per year in 1957 and fifteen per year in\n1961. In  1960, the  quota was\tfixed at  60 per cent of the\nactual\tintake\t of   probationers   from   the\t  CES\tetc.\nexaminations. Again  in 1975  the quota\t was increased to 25\nper year.  The net  result was\tthat all but a 107 temporary\nAssistant Engineers  were left unabsorbed by the time of the\nfiling of  the writ  petitions and  they  too  were  finally\nabsorbed in  1979 by a blanket order. On September 17, 1965,\nthe Railway  Board decided  that the  temporary officers  so\nabsorbed into  the Railway  Service of\tEngineers should  be\ngiven weightage in seniority \"on the basis of half the total\nnumber of  years of  continuous service\t in working posts on\nRailways prior\tto their  permanent absorption into Class I,\nsubject to maximum weightage of five years.\"\n     One of the writ petitioners, Katyani Dayal field a writ\npetition in  the Allahabad  High Court claiming promotion to\nthe Senior  scale post\tof District  Officer. He  found\t his\nclaim on Rule 133(3)(c) of the Railway Establishment Code on\nthe basis  that he  was\t an  Assistant\tOfficer\t within\t the\nmeaning of  that expression  as then defined by Rule 102(3).\nThe  High  Court  allowed  the\twrit  petition\tand  gave  a\ndirection to  the Railway  Administration  to  consider\t the\nclaim of  the  petitioner  for\tappointment  in\t officiating\nvacancies to  the  post\t of  District  Officer\tas  soon  as\nvacancies  arose,   ignoring  the   circulars\twhich\tgave\npreference to  Class I\tjunior scale  officers of four years\nstanding or  more as  against temporary Assistant Engineers.\nAn appeal  filed by  the Railway  Administration  under\t the\nLetters Patent was dismissed by a Division Bench of the High\nCourt. Though  the Division  Bench dismissed  the appeal  on\nAugust 1, 1974, the Railway Administration did not implement\nthe judgment  but instead  on December\t12, 1975 amended the\nRule 102(3),  133(3)(c) and  (f)  and  introduced  new\trule\n102(17) so  as\tto  expressly  exclude\ttemporary  Assistant\nOfficers (newly\t defined by  Rule 102 (7), from the category\nof Assistant  Officers and  thus make  them  ineligible\t for\npromotion to the senior scale under Rule 133(3)(c) and (f).\n     The  petitioners,\ttherefore,  have  filed\t these\twrit\npetitions  in\ta  representative   capacity  purporting  to\nrepresent all temporary Assistant Engineers appointed on the\nrecommendation\tof  the\t Union\tPublic\tService\t Commission,\nclaiming that,\tin law they could only be and were appointed\nto the\tIndian Railway\tService of  Engineers Class  I right\nfrom the  beginning and\t that the Railway Board was wrong in\ntreating them  as belonging to neither Class I nor Class II.\nThey claimed  that they were appointed to temporary posts in\nthe cadre of Indian Railway Service of Engineers Class I and\nthat their  seniority had  to be  reckoned on  the basis  of\ntheir length of continuous service, though they\n141\nconceded that in any given year those appointed on the basis\nof the\tresults of  the\t competitive  examination  might  be\nplaced above  those appointed  on the basis of the selection\nby the Union Public Service Commission.\n     Dismissing the petitions the Court\n^\n     HELD: (1)\tArts. 53,  73(1)(a) and\t 309, make  it clear\nthat the  President, acting  directly  or  through  officers\nsubordinate to\thim is free to constitute a service (with as\nmany  cadres   as  he  chooses),  to  create  posts  without\nconstituting a\tservice or  to\tcreate\tposts  outside\t(the\ncadres of)  the constituted  service. The  President (or the\nperson directed\t by him) may, or, again, if he so chooses he\nmay not make rules regulating the recruitment and conditions\nof service of persons appointed to such service or posts. He\nis also\t free to  make or  not to  make appointments to such\nservices or  posts. Nor\t is it\tobligatory for\thim to\tmake\nrules  of   recruitment\t etc.\tbefore\ta   service  may  be\nconstituted or a post created or filled. But, if there is an\nAct of Parliament or a rule under the proviso to Article 309\non the matter, the executive power under Articles 53 and 73,\nmay not\t be exercised  in  a  manner  inconsistent  with  or\ncontrary to such Act or rule. [162D-F]\n     B.N. Nagarajan  v. State  of Mysore,<\/a>  [1966] SCR  682 @\n686; State  of Kerala v. M.K. Krishnan Nair and ors.<\/a>, [1978]\n2 S.C.R. 864 at 874; referred to.\n     (2)  The  previous\t existence  of\tthe  Indian  Railway\nService of  Engineers and  the rules made for recruitment to\nthat service  do not bar the constitution of another service\nor the\tcreation of  posts outside  the cadres of the Indian\nRailway Service of Engineers. Though to start with there was\nno Presidential\t sanction for  the creation  of the posts of\nTemporary Assistant  Officers in  the various departments of\nIndian Railways,  which were neither in Class I nor in Class\nII but\tmerely in  gazetted service,  the  matter  was\tsoon\nrectified by  the grant\t of Presidential  sanction  for\t the\nposts  in  November  1956,  and\t by  the  President  further\nspecifying the\tRailway Board  as the authority competent to\nmake appointment  of such  temporary Assistant Officers. The\nposts of  Temporary Assistant Officers were thus created and\nappointments made,  under valid\t authority and\toutside\t the\nexisting cadres\t of the Indian Railway Service of Engineers.\nThe letters  of \"indent\", the advertisements, the letters of\nappointment and\t the  agreements  show\tthat  the  temporary\nAssistant Officers appointed in this fashion after selection\nby the\tUnion Public  Service Commission were to be a source\nof recruitment\tto the\tIndian Railway\tService of Engineers\nClass I. If Temporary Assistant Officers were to be a source\nof recruitment\tto the\tIndian Railway\tService of Engineers\nClass, no  temporary Assistant\tOfficer\t could\tpossibly  be\nunder any misapprehension that he was\n142\nappointed to the Indian Railway Service of Engineers Class I\nor could claim that he was appointed to such service. [162G-\nH, 163G-H, 164A]\n     The petitioners  cannot  be  considered  to  have\tbeen\nappointed  under   rule\t 130(d)\t  of  the   Indian   Railway\nEstablishment Code  which provides  for occasional admission\nof other  qualified persons  on the  recommendation  of\t the\nUnion Public  Service Commission  merely because  they\twere\nselected  for\tappointment  by\t the  Union  Public  Service\nCommission, their  scale of  pay was the same as that of the\nClass I\t Junior Scale Officers of the Indian Railway Service\nof Engineers and their duties were the same. [164A-C]\n     (3) It  is no  doubt true\tthat a\tcadre may consist of\npermanent vacancies  in permanent as well as temporary posts\nborne on the cadre. But it does not follow that appointments\nstated to  be made  to posts  outside the  very service\t and\ntherefore necessarily  outside the  cadre must be considered\nto be  made to\ttemporary posts\t borne on  the cadre  merely\nbecause the  posts were\t likely to continue indefinitely and\ndid so continue. [164 F-G]\n     The  Annual  Administrative  Reports  merely  refer  to\nappointments, temporary\t as well  as permanent,\t made in the\ngazetted service  by direct  recruitment.  Gazetted  Railway\nservices must  include both  the Indian\t Railway Service  of\nEngineers and  the Gazetted  Railway Service  constituted by\nthe  temporary\tAssistant  Officers.  Therefore,  by  merely\ntaking\tinto  account  the  number  of\tTemporary  Assistant\nOfficers for  the purpose of calculating the total number of\npersons appointed  to Gazetted\tRailway\t Service  it  cannot\nconceivably be\tsaid that  Temporary Assistant Officers were\nappointed to  cadre posts  in the  Indian Railway Service of\nEngineers. Even the classified lists of Gazetted officers do\nnot indicate  that persons  who were  appointed as Temporary\nAssistant Officers  were appointed  to posts  borne  on\t the\ncadre of  Indian Railway  Service of Engineers. On the other\nhand under  the column\t\"Date of  appointment to  Class\"  no\nentry is  made against\tthe names  of any  of the  Temporary\nAssistant Officers  who had  not yet  been absorbed into the\nIndian Railway Service of Engineers. [165 B-C, D-E]\n     If posts  were initially  created and  sanctioned,\t the\nsubsequent continuance\tof the\tposts indefinitely would not\nmake persons  appointed to  the posts members of the Railway\nService, namely,  the Indian  Railway Service  of  Engineers\nClass I. [165 F-G]\n     (4)  The\tnote  below   Rule  106\t  of   the   Railway\nEstablishment Code  merely states  an existing fact known to\nall concerned,\tnamely, that  posts of\tTemporary  Assistant\nOfficers in  gazetted railway  service who  were not  to  be\nclassified 'either  as Class  I or  as Class  II'  had\tbeen\nsanctioned by the President\n143\nwho had\t designated  the  Railway  Board  as  the  authority\ncompetent to  make appointments\t to  those  posts.  With  or\nwithout the  note, the\tTemporary Assistant  Officers  would\nstill not be classified either as Class I or Class II. Their\nclassification\toutside\t  Class\t I  and\t Class\tII  was\t not\ndependant on  the note\tbut on\tthe Presidential sanction in\nregard to the creation of the posts.\n     [166 A-B]\n     (5) Temporary  Assistant  Officers\t are  not  Assistant\nOfficers within the meaning of that expression in the Indian\nRailway\t Establishment\t Code.\tThe   expression  \"Temporary\nAssistant Officer\",  which was not previously defined in the\nRailway Establishment  Code, was sought to be defined by new\nclause 17  of R.102  to mean  \"a  Gazetted  Railway  Servant\ndrawing pay on the scale applicable to junior Scale Officers\nbut not\t classified  either  as\t Class\tI  or  as  Class  II\nOfficers. The  expression Assistant Officer was redefined so\nas not\tto include a Temporary Assistant Officer who was not\n'classified' either as Class I or as Class II. [166 C-D]\n     The amendments  do not  have any  effect one way or the\nother on  the status  of the  Temporary Assistant  Officers.\nWhat was  always  well\tknown  to  the\tTemporary  Assistant\nOfficers and  the Railway  Board and what was the inevitable\nresult of  the Presidential  sanction for  the\tcreation  of\nposts which  were not  to be classified either as Class I or\nClass  II,   was  made\t explicit  in\tthe  Indian  Railway\nEstablishment  Code   also  by\tthe  introduction  of  these\namendments.  This  became  necessary  because  in  the\tWrit\nPetition filed\tby Katyani  Dayal, the Allahabad High Court,\nwhile appearing\t to hold  that Temporary  Assistant Officers\nbelonged neither  to Class  I nor  to Class II service, held\nthat they  came\t within\t the  then  existing  definition  of\n'Assistant Officer'  so as  to entitle\tthem  for  promotion\nunder r.  133 of  the  Indian  Railway\tEstablishment  Code.\n[166E-G]\n     The definition  of Assistant Officer was not to be read\nin isolation  but should  have been  read conjunctively with\nRules 105,  106 and  108. A reference to Rule 105 would show\nthat for  the purposes\tof the\trules in  the Indian Railway\nEstablishment Code,  Railway services  were to be classified\ninto Class  I, Class  II, Class\t III, Class  IV and workshop\nstaff. Rule  106 specified  the appointments  and categories\nfalling under  the services  mentioned in Rule 105. Rule 108\nrequired the  Railway Board  to\t fix  the  strength  of\t the\nRailway Services,  Class I and II. There could therefore, be\nno question  of an  officer not\t falling within\t the  class,\ncategory or  cadres specified  in rules\t 105,  106  and\t 108\nclaiming to  be an 'Assistant Officer' within the meaning of\nthat expression. A person recruited to the post of Temporary\nAssistant Officer  not classified  as Class  I or  Class  II\nOfficer could  not claim to belong to the Class, category or\ncadre spe-\n144\ncified in  Rules 105, 106 and 108 and was, therefore, not an\nAssistant Officers  within the\tmeaning of  that  expression\neven before the 1975 amendment.\n[167 D-F]\n     (6) There\tare and\t there can  be no absolutes when the\nCourt  considers   claims  to\tjustice\t on   complaints  of\ninequality. The\t Marxian of  a\tclassless  society,  however\nlaudable that  may be, is evidently not what is sought to be\nachieved by Arts. 14 and 16 of the Constitution. The goal is\na  limited   one.  It\tis  equality  among  comparables.  A\nnecessary,  but\t not  necessarily  cynical,  implication  of\nequality  among\t  comparables  is   the\t permissibility\t  of\nreasonable classification,  having nexus  with the object to\nbe  achieved.\tIf  two\t  services  started   and  continued\ndissimilarly,  though  they  apparently\t discharged  similar\nduties, they were not comparable services so as to furnish a\nbasis for  the claim to equality. But if in the same service\nthere were two sources of recruitment to the same service, a\nclassification based solely on source of recruitment was not\npermissible. [176 E-G]\n     State of  Punjab v.  Joginder Singh,<\/a> [1963] Supp. 2 SCR\n169, 191, 192; Roshan Lal Tandon v. Union of India,<\/a> [1968] 1\nSCR 185\t and Mervyn Coutindo & Ors. v. Collector of Customs,\nBombay and Ors.,<\/a> [1966] 3 SCR 600; referred to.\n     (7) Those\twho were appointed to ex-cadre posts outside\nthe rules  and whose  tenure was  therefore precarious could\nnot claim  to be  treated on  the same\tfooting as those who\nwere appointed\tstrictly in  accordance with  the rules\t and\nposts borne on the cadre of the service. [177 F-G]\n     H.S. Varma\t & Ors.\t v. Secretary,\tMinistry of Shipping\nand Transport  & Ors.  [1979] 4 SCC 415 @ 427, 428; referred\nto.\n     (8) The  classification of Temporary Assistant Officers\nseparately from\t the Indian  Railway  Service  of  Engineers\nClass I\t is  neither  discriminatory  nor  is  violative  of\nArticles 14  and 16  of the Constitution for the reason that\nit had\tno  nexus  to  the  object  to\tbe  achieved  namely\nefficiency of service.\n     [167 G-H]\n     The service comprising the Temporary Assistant Officers\nand the\t Indian Railway Service of Engineers Class I started\nseparately and\tnever  became  one.  The  objects  of  their\nrecruitment were  different, the methods of recruitment were\ndissimilar and\tthe appointing\tauthority was  not the same.\nThe training  that was\timparted was  also unlike.  The very\ntenure of  the Temporary  Assistant Officers  was precarious\nand their  immediate aspiration was only to be absorbed into\nthe Indian  Railway Services  of Engineers  Class  I.  These\ndistinctive features  marked  out  the\tTemporary  Assistant\nOfficers as a Class apart from the Indian\n145\nRailway Service of Engineers Class I and therefore there was\nno question  of entitlement of equal rights with the latter.\nOf course,  once they  were absorbed into the Indian Railway\nService of  Engineers they  would  be  entitled\t not  to  be\ntreated\t differently   thereafter.  Their   seniority  would\nordinarily be  reckoned from  the date\tof their  absorption\ninto the Indian Railway Service of Engineers, as promised in\ntheir  letters\tof  appointment.  No  doubt  these  Officers\nmerited something  more than  the 'long wait' at the portals\nof the\tIndian Railway\tService of  Engineers.\tThe  Railway\nBoard however, appears to have tried to make the long wait a\nlittle less  tedious by\t giving them  weightage of  half  of\ntheir length  of service  as Temporary\tAssistant  Officers,\nsubject to maximum of five years [177D-G]\n     Equally  important,   is  the  fundamental\t qualitative\ndifference, linked with the method of recruitment. True, the\nminimum educational  qualification is  the same.  But, those\nwho are\t recruited directly to the Indian Railway Service of\nEngineers Class\t I are\tsubjected to  stiff and competative,\nwritten and personality tests. Only the very best can aspire\nto come\t out successful.  The Temporary\t Assistant  Officers\nwere not  subjected either  to a written or to a personality\ntest but  were selected\t on the basis of an interview by the\nUnion Public  Service Commission. In addition to the minimum\neducational qualification,  three  years'  experience  as  a\nCivil Engineer\twas also  prescribed. Thus  while brilliance\nwas the beacon light which beckoned those aspiring to become\nmembers of  the Indian Railway Service of Engineers Class I,\nit was\treplaced by  experience in the case of those wanting\nto be  Temporary Assistant  Officers. Again  the  appointing\nauthority in the case of Indian Railway Service of Engineers\nClass I\t is the\t President while the appointing authority in\nthe case  of Temporary\tAssistant Officers  was the  Railway\nBoard, no  doubt, pursuant  to the  authority given  by\t the\nPresident. Different courses of training were prescribed for\nthe Indian  Railway Service  of Engineers  and the Temporary\nAssistant  Officers.  For  the\tIndian\tRailway\t Service  of\nEngineers the training is an intensive and comprehensive one\ndesigned to  equip them\t for higher  posts in the Department\ntoo; while  the training  for Temporary\t Assistant Engineers\nwas a  brief six  months' training  intended merely to equip\nthem for  carrying out\tthe specific  jobs. In the matter of\nterms and conditions of service, while the provisions of the\nIndian Railway\tEstablishment Code  are fully  applicable to\nthe Indian  Railway Service  of\t Engineers  Class  I,  those\nprovisions are\tapplicable to 'Temporary Assistant Officers'\nto the extent there is no specific provision in their letter\nof appointment and agreement. [169 C-H]\n     State of  Punjab v.  Joginder Singh,<\/a> [1963] Supp. 2 SCR\n169, @\t191, 192, Kishori Mohanlal v. Union of India, A.I.R.<\/a>\n1962 SC\t 1139, Jammu  & Kashmir\t v. Triloki  Nath Khosa\t and\nOrs.,<\/a> [1974] 1 SCR 771 @ 790, 792 Roshan Lal Tandon v. Union\nof India,<\/a> [1968] 1 SCR 185; Mervyn Coutindo and Ors. v.\n146\nCollector of  Customs, Bombay  and Ors.,  [1966] 3  SCR 600,\nMohammad Sujat Ali and Ors. v. Union of India and Ors. etc.,\n[1975] 1  SCR 449  @ 481,  S.B. Patwardhan  and Ors. etc. v.\nState of  Maharashtra and  Ors. [1977]\t3  SCR\t775;  A.  K.\nSubraman v.  Union of India,<\/a> [1975] 2 SCR 979 and M.S. Verma\nand Ors.  v. Secty.  Ministry of  Shipping &  Transport\t and\nOrs., [1979] 4 SCC 415 @ 427, 428; discussed.\nObservation:\n     There is  nothing 'doctrinaire'  in  the  principle  of\n\"equal pay  for equal  work\" and \"equal status for equal pay\nand equal work\". They are not goals to be scoffed at. It may\nbe that\t in the\t present societal  context,  the  goals\t may\nappear\tto   be\t distant.  But\tthey  are  goals  worthy  of\nattainment and\twould be  achieved in  the not\ttoo  distant\nfuture. [178 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL (CIVIL)  APPELLATE JURISDICTION: Writ Petition
\nNos. 147 to 151 of 1976.\n<\/p>\n
\t  (Under Article 32 of the Constitution)
\n\t\t\t    WITH
\n     SPECIAL LEAVE PETITION (CIVIL) No.7905 OF 1979
\n     From the  Judgment and  Order dated  29-8-1978  of\t the
\nAllahabad High Court, in S.A. No. 887\/70.\n<\/p>\n
     M.C. Bhandare,  Mrs. S.  Bhandare and T. Sreedharan for
\nthe Petitioners.\n<\/p>\n
     L.N. Sinha,  Attorney General, Mr. M.K. Banerjee, Addl.
\nSolicitor General,  R.B. Datar,\t A.K. Ganguli, R.N. Sachthey
\nand Miss A. Subhashini for RR 1 and 2.\n<\/p>\n
     F.S. Nariman,  Anil B.  Dawan, P.H.  Parekh, C.B. Singh
\nand R. Karanjwala for RR 1 & 19.\n<\/p>\n
     S.C. Gupta and Ramesh Chand for RR 14.\n<\/p>\n
     Madan Bhatia and D. Goburdhan for RR 20.\n<\/p>\n
     Y.S. Chitale,  V.M. Tarkunde, and A.N. Karkhanis for RR
\n28 and 31.\n<\/p>\n
     S.D. Gupta in person for impleading RR in WP 147\/76.
\n     Girdharee Singh and S.K. Jain for the Intervener.\n<\/p>\n
147<\/span><\/p>\n
     The Judgment of the Court was delivered by,
\n     CHINNAPPA REDDY,  J.-Several hundred  Railway Engineers
\nwho should  have  been\tbusy  elsewhere,  building  bridges,
\nlaying or doubling tracks and so on have found themselves in
\nthe corridors  of this\tCourt in  pursuit of  the leaves  of
\ncareer. Quite  a contingent  was present  in Court anxiously
\nwatching the proceedings and listening with expect attention
\nto every  word that  fell from\tcounsel and judge. One could
\nnot help  wondering whether  this multitiered. ‘multi-varne’
\nService-system\twas   itself  not  productive  of  a  career
\nneurosis, destructive of the very efficiency which is sought
\nto achieve.\n<\/p>\n
     2. In  this case, as in most other service matters that
\nreach this Court, the question which arise for consideration
\nrelate to classification, confirmation, seniority, promotion
\netc., questions\t which appear  to agitate  the minds  of the
\nmembers of  all services.  Administrators  seeking  to\tfind
\nsolutions to  some of  the problems  very soon discover that
\ntheir solutions\t are no more than illusions and have created
\nother problems.\t First one party and then another party, all
\nseek the  protection of\t the Court.  The Court\tis no expert
\nadministrator.\t  Lacking     expertise,     lacking\t the
\nadministrator’s access\tto information,\t there\tare  obvious
\nlimitations to\twhat the Court may be. The Court may at best
\nattempt to  solve some\tbasic legal  issues. That  the Court
\nstrives\t to   do  without   disturbing\tthe   administrative
\nequilibrium.\n<\/p>\n
     3. The service with which we are concerned in this Case
\nis the\tIndian Railway\tService of Engineers, Class I. While
\nthe petitioners\t claim that  they  were\t appointed  to\tthis
\nservice\t after\t selection  by\t the  Union  Public  Service
\nCommission, the respondents allege that the petitioners were
\nappointed  as\ttemporary  Engineers  only,  constituting  a
\nspecial class  and  service  by\t themselves,  and  were\t not
\nappointed to the Indian Railway Service of Engineers Class I
\nat all.\n<\/p>\n
     4. It appears that from the time of the first Five Year
\nPlan onwards   several\timportant assignments  such  as\t the
\nconstruction  of  major\t bridges,  new\tlines,\tdoubling  of
\nelectrification of  existing lines etc. were taken up by the
\nCivil Engineering  Department of  the  Indian  Railways.  It
\nbecame necessary  to create  a number  of temporary posts of
\nClass I\t (Indian Railway  Service of Engineers) and Class II
\nEngineers to carry out these works. In 1955 it was estimated
\nthat about  200\t additional  Engineers\twould  be  necessary
\nwithin the  next  two  years  to  deal\twith  the  planning,
\nsurveying, estimating  and construction\t of the multitude of
\nthe proposed  development works. It was not thought possible
\nto
\n148<\/span>
\nmeet the  additional personnel\trequirements  from  existing
\nsources, which\twere direct  recruitment to  Class I  on the
\nbasis of  the  results\tof  a  competitive  examination\t and
\npromotion to  Class II from Class III. Though the conversion
\nof some\t of the\t temporary posts  into permanent  ones might
\nmeet part  of the  requirement, it  was thought, recruitment
\nthrough normal\tchannel to such posts would necessarily have
\nto be spread over a period of years so as to avoid ‘bunching
\nof officers within particular age group’. It was, therefore,
\ndecided to  recruit, in\t the first instance, fifty temporary
\nEngineers immediately. Their scale of pay was to be the same
\nas that\t of the Indian Railway Service of Engineers. The age
\nlimit was  to be  25 to\t 35 years so as to attract Engineers
\nwith practical\texperience.  The  appointments\twere  to  be
\nnormally made  on the  minimum of the time scale but persons
\nwith previous experience could be fitted into the scale at a
\nhigher stage.  As the  posts were  to be  temporary, it\t was
\ndecided\t that  an  incentive  should  be  given\t to  attract
\nsuitable  candidates   by  reserving  a\t proportion  of\t the
\npermanent  vacancies   in  the\tIndian\tRailway\t Service  of
\nEngineers each\tyear for  being\t filled\t by  such  temporary
\nEngineers. Six\tvacancies in  the Indian  Railway Service of
\nEngineers were\tto be  so earmarked  annually to start with.
\nThe quota could be increased later. On permanent appointment
\nto the\tIndian Railway\tService of Engineers seniority would
\ncount from  the date of such appointment. Proposals on these
\nlines were conveyed by the Railway Board to the Union Public
\nService Commission  on February\t 21, 1955  with a request to
\ntake steps for the early recruitment of temporary Engineers.
\nA formal requisition in the prescribed form was also sent to
\nthe Union  Public Service Commission. In this form, the post
\nwas designated\tas “Assistant Engineer”, the number of posts
\nwas mentioned  as 50, and, the class of service to which the
\npost belonged  was mentioned  as “Gazetted Railway Service”.
\nAgainst the  heading “whether  permanent or  temporary”, the
\nposts were  mentioned as “temporary”. Against the column “if
\nthe post  is temporary,\t please state  :  (a)  when  it\t was
\nsanctioned; (b)\t the period for which it has been sanctioned
\nand (c)\t irrespective of  the period of sanction how long it
\nis expected  to last  and  whether  it\tis  expected  to  be
\nretained on  a permanent basis eventually”, it was mentioned
\nthat the  posts would  be sanctioned  shortly in  connection
\nwith a\tnumber of  projects, that  the period  would be\t two
\nyears in  the first  instance but  was likely to be extended
\nupto five  years and  that  the\t employment  might  continue
\nindefinitely but on a temporary basis. It was specified that
\nthe candidates\twould  be  eligible  to\t be  considered\t for
\nabsorption in  permanent vacancies  at the  rate of  six per
\nyear. The scale was mentioned as Rs. 350-350-380-380-30-590-
\nE.B.-30-770-40-850, this  being the  Junior Scale  of pay of
\nIndian Railway Service of Engineers Class I. It was
\n149<\/span>
\nsaid that higher initial salary was permissible according to
\nexperience and\tqualifications. The  academic qualifications
\nwere to\t be the\t same as  for regular  recruitment to Indian
\nRailway Service\t of Engineers. Against the heading prospects
\nof promotion to higher post it was stated that they might be
\nconsidered for\tpromotion to senior scale posts in the grade
\nof Rs.\t600-40-1000-50\/2-1150 according to the exigencies of
\nservice. Similar  proposals and “indents” for recruitment of
\ntemporary officers  to six other departments of the Railways
\nwere also simultaneously made.\n<\/p>\n
     5. Pursuant  to the  requisition by  the Railway Board,
\nthe Union  Public Service Commission issued an advertisement
\ninviting applications  for “50 posts of Assistant Engineers,
\nMinistry of  Railways, Service\tClass  I  (Gazetted),  posts
\ntemporary for  two years in the first instance but likely to
\ncontinue”. The\tminimum educational qualification was stated
\nto be  a Degree\t in Civil  Engineering,\t but  an  additional
\nqualification of  ‘about  3  years  experience\tas  a  Civil
\nEngineer’  was\t also  prescribed.   The  qualification\t was
\nrelaxable at the discretion of the commission in the case of
\ncandidates otherwise well qualified. It was mentioned in the
\nadvertisement that  the candidates  would be  eligible\t‘for
\nbeing considered  for absorption  in permanent\tvacancies at
\nthe rate  of six  per year’  and might\tbe  considered\t‘for
\npromotion to  senior grade posts in the scale of Rs. 600-40-
\n1100-50\/2-1150 according  to the  exigencies of service’. It
\nappears that  the reference  to Class I in the advertisement
\nwas considered\tby the\tRailway Board  to be  a mistake. The
\nRailway Board,\ttherefore, addressed  a letter dated October
\n31, 1955 to the Union Public Service Commission pointing out
\nthat in\t their\trequisition  they  had\tindicated  “Gazetted
\nRailway Service”  as the service to which recruitment was to
\nbe made\t and that  it was  not intended\t that it  should  be
\neither Class  I or  Class II.  It was  also  mentioned\tthat
\nstatements had\tbeen made  on the floor of the Lok Sabha and
\nRajya Sabha  that the posts were “temporary” and “neither in
\nClass I\t nor in\t Class II”.  The Commission  was accordingly
\nrequested to  issue a  suitable correction slip. Thereafter,
\nin the\tsubsequent advertisements issued by the Union Public
\nService Commission there was no reference to Class I. It was
\nmerely\tmentioned   that  applications\t were  invited\t for
\nspecified number  of posts  of “Assistant Engineers (Civil),
\nMinistry  of   Railways,  posts\t  temporary  but  likely  to
\ncontinue”.\n<\/p>\n
     6. The  petitioners in  the various  Writ Petitions who
\nsubmitted   their   applications   in\tresponse   to\tsuch
\nadvertisements, were  selected by  the Union  Public Service
\nCommission, at various times between 1955
\n150<\/span>
\nand  1964   and\t were  offered\tappointments  as  ‘Temporary
\nAssistant Engineers’  by the Railway Board. Everyone of them
\nwas told  that the appointment would be on a temporary basis
\nin the\tscale of  Rs. 350-350-380-380-30-590-E.B.-30-770-40-\n<\/p>\n
850. They  were also  expressly told that the posts to which
\nthey were appointed would be neither in Class I nor in Class
\nII, service  though they  were eligible,  on  completion  of
\nthree  years  service,\tto  be\tconsidered  alongwith  other
\ntemporary Assistant  Engineers for  absorption\tin  Class  I
\n(Junior Scale)\tagainst vacancies  ear-marked from  time  to
\ntime for  the absorption of temporary Assistant Engineers in
\nthe Indian Railway Service of Engineers Cadre upto a maximum
\nof six\tper year.  They were also expressly informed that in
\nthe event  of their  being selected in Class I Service their
\nseniority would\t count from  the  date\tof  their  permanent
\nappointment to\tClass  I  Service.  They  were\trequired  to
\nexecute\t service  agreements  “as  applicable  to  temporary
\nofficers”. It  was also\t stipulated that  in all matters not
\nspecifically referred  to in  the order\t of appointment, the
\nperson appointed  would be governed by the provisions of the
\nIndian Railway\tEstablishment Code  and\t the  extant  orders
\nissued from time to time. The petitioners accepted the terms
\noffered to  them and  joined duty in the posts to which they
\nwere appointed.\n<\/p>\n
     7. The agreements which the petitioners and others like
\nthem were  required to execute and which they presumably did
\nexecute (were  in a  standard form  known as  ‘Agreement for
\nTemporary  Assistant   Officers\t of  the  Indian  Railways’.
\nParagraph 2  of the  standard form  and agreement  specified
\nthat the  appointment was  in a\t gazetted post\tC  which  is
\nneither in  Class I  nor in  Class II  service) on scale Rs.
\n350-350-380-380-30-590-E.B.-770-40-850.\t    Paragraph\t   5
\nmentioned that\tthe person appointed would be eligible along
\nwith  other   temporary\t Assistant   Officers\t“for   being
\nconsidered for\tabsorption in the permanent vacancies in the
\nClass I\t (junior scale)\t of the……….department  upto  a
\nmaximum number of vacancies in a year as may be fixed by the
\nGovernment” and\t that in the event of his being selected for
\nthat service  his seniority  would count  from the  date  of
\nconfirmation.  Paragraph   6  recited\tthat  he   would  be
\nconsidered for\tappointment to\ta  Senior  Scale  post.\t The
\nagreement provided  that in  respect of matters for which no
\nprovision was  made in\tit, the\t provisions  of\t the  Indian
\nRailway Establishment  Code from  time to  time in  force or
\nrules made  thereunder shall  apply to\tthe extent they were
\napplicable to  temporary Assistant  officers. It was further
\nprovided that  the decision  of the  Government as  to their
\napplicability, interpretation and effect shall be final.\n<\/p>\n
     8. It should be mentioned here that though there was no
\nprevious Presidential  sanction for  making appointments  to
\nposts which were
\n151<\/span>
\nneither in  Class I  nor in Class II but merely in ‘gazetted
\nservice’, the\t      matter  was rectified and Presidential
\nsanction was  subsequently obtained  in November, 1956. This
\nwas  communicated  by  the  Railway  Board  to\tthe  General
\nManagers of all Indian Railways by letter No. E-55RC-16 (Pt.
\nA) dated  November, 22,\t 1956. It  was also  decided by\t the
\nPresident that\tthe Railway Board of the competent authority
\nto appoint  Temporary  Assistant  Officers  in\tthe  various
\ndepartments of the Railways. This was mentioned by the Board
\nin letter  No.\tE.  (GF-P)  56RC-16  Pt.  A  dated  18-12-57
\naddressed to the General Managers of all Indian Railways.\n<\/p>\n
     9. Between\t the years  1955 and  1964 as  many  as\t 553
\ntemporary Assistant Engineers were appointed after selection
\nby the\tUnion Public  Service Commission.  Though  in  their
\norders of  appointment as temporary Assistant Engineers, the
\npetitioners and\t others were  told that six of them would be
\nabsorbed into  the Indian Railway Service of Engineers Class
\nI every\t year, the  quota was increased to eight per year in
\n1957 and  fifteen per  year in\t1961. In  1960 the quota was
\nfixed at  “60% of the actual intake of Probationers from the
\nCES  etc.   examinations”.  Again  in  1975  the  quota\t was
\nincreased to  25 per year. The net result was that all but a
\n107 temporary  Assistant Engineers  were left  unabsorbed by
\nthe time  of the  filing of  the Writ Petitions and they too
\nwere finally absorbed in 1979 by what was described to us as
\na ‘blanket order’. We were informed that the validity of the
\nabsorption on  this mass  scale is  under challenge  in some
\nWrit Petitions\tfiled  by  members  of\tthe  Indian  Railway
\nService of Engineers, Class I. At this juncture we also find
\nit necessary  to mention  that the Railway Board decided, on
\nSeptember 17,  1965, that the temporary officers so absorbed
\ninto the  Indian Railway Service of Engineers should also be
\ngiven weightage in seniority “on the basis of half the total
\nnumber of  years of  continuous service\t in working posts on
\nRailways prior\tto their  permanent absorption into Class I,
\nsubject to  a maximum  weightage of  five years”.  This,  of
\ncourse, was  the  result  of  representations  made  by\t the
\ntemporary officers. This too we are told is under challenge.\n<\/p>\n
     10. The  petitioners have filed these Writ Petitions in
\na  representative   capacity  purporting  to  represent\t all
\ntemporary   Assistant\t Engineers    appointed\t   on\t the
\nrecommendation\tof  the\t Union\tPublic\tService\t Commission,
\nclaiming that, in law, they could only be and were appointed
\nto the\tIndian Railway\tService of  Engineers Class  I right
\nfrom the  beginning and\t that the Railway Board was wrong in
\ntreating them  as belonging to neither Class I nor Class II.
\nThey claim  that they  were appointed  to temporary posts in
\nthe cadre of Indian Railway Service
\n152<\/span>
\nof Engineers  Class I  and that\t their seniority  had to  be
\nreckoned on the basis of their length of continuous service,
\nthough they  concede that  in any given year those appointed
\non the\tbasis of  the results of the competitive examination
\nmight be  placed above\tthose appointed\t on the basis of the
\nselection by  the  Union  Public  Service  Commission.\tThey
\ncontend that the Railway Board had no authority to create an
\nunclassified service,  as it were, outside the provisions of
\nthe Indian  Railway Establishment  Code. Notwithstanding the
\nrequisitions issued by the Railway Board, the advertisements
\nissued by  the\tUnion  Public  Service\tCommission  and\t the
\nletters of  appointment\t issued\t to  the  petitioners,\tthey
\ncontend that  they were\t appointed to  the cadre  of  Indian
\nRailway Service\t of  Engineers\tClass  I  and  to  no  other
\nservice. They  contend that  they were\trecruited to Class I
\nservice\t under\t rule\t130(d)\t of   the   Indian   Railway
\nEstablishment Code  which provides for “occasional admission
\nof other  qualified persons  on the  recommendations of\t the
\nUnion Public Service Commission”. They question the vires of
\nthe note  to Rule 106 which was added by way of amendment in
\n1956 and  which provided  that ‘temporary Assistant Officers
\nwould not  be classified  either as Class I or as Class II’.
\nThe petitioners\t claim that  the  distinction  made  by\t the
\nRailway Administration\tbetween Assistant Officers recruited
\non the\tbasis of  the results of the competitive examination
\nand the\t temporary Assistant  Officers\t  recruited  on\t the
\nrecommendation of  the Union  Public Service  Commission was
\ndiscriminatory and offended Articles 14 and 16. They contend
\nthat all  Assistant Officers  formed  one  class  under\t the
\nIndian\t Railway    Establishment    Code.    The    further
\nclassification of  Assistant Officers  into those  that were
\nrecruited on  the basis\t of a  competitive  examination\t and
\nthose that were recruited on the recommendation of the Union
\nPublic Service\tCommission was\ta “micro-classification” not
\npermissible under  the law.  They point out that the minimum
\nacademic  qualifications  and  the  scales  of\tpay  of\t the
\nPermanent and  the Temporary  Engineers\t (for  the  sake  of
\nbrevity the Assistant Officers appointed on the basis of the
\nresults of  the competitive  examination  may  hereafter  be
\ndescribed as  permanent Engineers  while those\tappointed on
\nthe basis  of the recommendation of the Union Public Service
\nCommission may\tbe described  as Temporary  Engineers)\twere
\nidentical, the\tduties and  functions were the same and they
\noccupied interchangeable posts. They further allege that, in
\nany case, the right of absorption of six temporary Engineers
\nonly every year into the Indian Railway Service of Engineers
\nwere arbitrary and inequitous. It had resulted in such gross
\ninjustice that\ttwo decades  of service\t of several  of\t the
\npetitioners. was to be counted for nothing.\n<\/p>\n
153<\/span><\/p>\n
     11.  Before   proceeding  to   consider   the   various
\ncontentions raised  on\tbehalf\tof  the\t petitioners  it  is
\nnecessary to  make a brief reference to the history, service
\nand legal,  of one  of the  many petitioners.  Shri  Katyani
\nDayal was working as an Assistant Engineer in the service of
\nthe Punjab Government from 1952 onwards. He was one of those
\nwho was\t selected by the Union Public Service Commission and
\nappointed as  a temporary  Engineer in\t1958. He was drawing
\npay in\tthe junior  scale. He  crossed the Efficiency Bar in
\n1966 and  according to\thim he was thereafter entitled to be
\nconsidered for\tpromotion to the senior scale to the post of
\nDistrict Officers.  He founded his claim on r. 133(3) (c) on
\nthe basis  that he  was\t an  Assistant\tOfficer\t within\t the
\nmeaning of  that expression as then defined by r. 102(3). As
\nhe was\tnot so promoted and as it was proposed, on the basis
\nof some\t circulars, to\tpromote permanent  Engineers of four
\nyears standing,\t he filed  a Writ Petition in the High Court
\nof Allahabad  claiming that he was entitled to be considered
\nfor promotion  to officiating  post of District Officer. The
\nRailway Board  opposed the  claim of  Katyani Dayal  on\t the
\nground that he was a temporary Assistant Engineer and not an
\nAssistant Officer and therefore, not entitled to be promoted
\nin terms of r. 133(3)(c). The Railway Board’s contention was
\nover-ruled by a learned Single Judge of the High Court and a
\ndirection  was\t given\tto  the\t Railway  Administration  to
\nconsider the  claim of\tthe petitioner\tfor  appointment  in
\nofficiating vacancies  to the  posts of District Officers as
\nsoon as\t vacancies arose.  The\tRailway\t Administration\t was
\ndirected to  ignore the\t circulars which  gave preference to
\nClass I junior scale officers of four years standing or more
\nas against temporary Assistant Engineers. An appeal filed by
\nthe Railway  Administration under  the\tLetters\t Patent\t was
\ndismissed by  a Division Bench of the High Court. Though the
\nDivision Bench\tdismissed the  appeal on August 1, 1974, the
\nRailway Administration\tdid not\t implement the\tjudgment but
\ninstead on  December 12, 1975 amended rule 102(3), 133(3)(c)
\nand (f)\t and introduced\t new rule 102(17) so as to expressly
\nexclude temporary  Assistant Officer   [newly  defined by r.
\n102(7) from  the category of Assistant Officer and thus make
\nhim ineligible\tfor promotion  to the  senior scale under r.
\n133 (3)(c) and (f)].\n<\/p>\n
     12.  It  appears  that  the  status  of  the  temporary
\nAssistant Engineers  recruited on  the recommendation of the
\nUnion Public  Service Commission has been the subject matter
\nof the\tdecisions of  several High Courts. Some of them have
\nbeen placed before us.\n<\/p>\n
     13. The  relevant\tprovisions  of\tthe  Indian  Railway
\nEstablishment Code may now be referred to.\n<\/p>\n
154<\/span><\/p>\n
     14. Rule 102(3) originally defined an Assistant Officer
\nto mean ‘a Gazetted Railway Servant drawing pay on the scale
\napplicable to  Junior  Scale  Officers’,  but  ‘was  not  to
\ninclude a  Class  II  Officer’.\t By  an\t amendment  made  on
\nDecember 31,  1975, the\t expression  was  redefined  and  an
\n‘Assistant Officer’  now ‘means\t a Gazetted  Class I Railway
\nServant drawing pay in the junior scale. It does not include
\na Class\t II Officer  or a temporary Assistant Officer who is
\nnot classified either as Class I or Class II’.\n<\/p>\n
     Prior  to\t December  31,\t 1975  “Temporary  Assistant
\nOfficer” was  not defined but by an amendment dated December
\n31, 1975  “Temporary Assistant Officer” has been defined and
\nnow means  “a gazetted\tRailway servant\t drawing pay  on the
\nscale applicable to junior Scale Officers but not classified
\neither as Class I or as Class II Officer”.\n<\/p>\n
     Rule 102(13)  defines a ‘Railway, Servant’ as meaning a
\nperson who  is a  member of  a service\tor who\tholds a post
\nunder the  administrative  control  of\tthe  Railway  Board,
\nincluding a person who holds a post in the Railway Board.\n<\/p>\n
     Rules 105\tand 106\t to the extent they are relevant are
\nas follows:\n<\/p>\n
\t  “105. For  the purpose of the rules in this Volume
\n     the railway services shall be classified as follows:-
\n     Gazetted
\n\t  (1) The Railway Services, Class I.\n<\/p><\/blockquote>\n
\t  (2) The Railway Services, Class II.\n<\/p><\/blockquote>\n
\t  Non-gazetted.\n<\/p><\/blockquote>\n
\t  (3) The Railway Services, Class III.
\n\t  (4) The Railway Services, Class IV.\n<\/p><\/blockquote>\n
\t  (5) The Workshop Staff.\n<\/p><\/blockquote>\n
\t  106.\tEstablishments\t and  categories  (including
\n     probationers), falling  under the services mentioned in
\n     rule 105, are shown below-\n<\/p><\/blockquote>\n
\t\t\t  Class I
\n\t  (1) Posts in the Railway Board;\n<\/p><\/blockquote>\n
155<\/span><\/p>\n
\t  (2)  Directors, Joint Directors, Deputy Directors,
\n\t       Assistant  Directors,   Railway\t Board\t and
\n\t       Research, Designs and Standards Organisation;
\n\t       Secretary, Deputy  Secretary, Under Secretary
\n\t       and  Section   Officers,\t Grade\tII,  Railway
\n\t       Board.\n<\/p><\/blockquote>\n
\t  (3)  Indian Railway Service of Engineers;
\n\t  (4)  Indian Railway Accounts Service;
\n\t  (5)  Indian Railway Traffic Services;\n<\/p><\/blockquote>\n
\t  (6)  Indian\tRailway\t   Service   of\t  Mechanical\n\t       Engineers;\n\t  (7)  Indian\tRailway\t   Service   of\t  Electrical\n\t       Engineers;\n<\/pre>\n
\t  (8)  Indian Railway Service of Signal Engineers;
\n\t  (9)  Indian Railway Medical Service;
\n\t  (10) Indian Railway Stores Service;
\n\t  (11) Senior\t Revenue    Establishment,    Indian
\n\t       Railways,  comprising   such  specialist\t and
\n\t       Miscellaneous posts  as have been included in
\n\t       Class  I\t  e.g.,\t Chemist  and  Metallurgists
\n\t       (Senior Scale)  and  Chief  Cashiers  (Senior
\n\t       Scale).\n<\/p><\/blockquote>\n
\t\t\t  Class II
\n\t  Gazetted posts not included in Class I.
\n\t  Note.-Temporary Assistant  Officers  will  not  be
\n     classified either as Class I or Class II.
\n\t\t\t Class III\n<\/p><\/blockquote>\n
\t\t\t ———\n<\/p><\/blockquote>\n
     *\t       *\t  *\t     *\t\t *\n\t\t\t  Class IV\n\t\t\t  --------\n     *\t       *\t  *\t     *\t\t *\n<\/pre>\n
It must be mentioned here that this Note to rule 106 was not
\nthere originally but was added in 1956.<\/p><\/blockquote>\n
     Rule 107  provides that  the prescribed  scale  of\t pay
\nadmissible to  Railway servants belonging to Railway Service
\nClass I and Class II shall be as specified in appendix XIV.\n<\/p>\n
156<\/span><\/p>\n
Rule 108 may also be extracted here and it is as follows:\n<\/p>\n
\t  “108. Sanctioned  strength of\t cadres.-Subject  to
\n     any statutory  provision in  this regard, the strength,
\n     including both the number and character of posts of the
\n     Railway Services,\tClass I\t and II, shall be determined
\n     by\t the  Railway  Board,  General\tManagers  of  Indian
\n     Railways may  create temporary  posts  in\tthe  Railway
\n     Services, Class  I and Class II, subject to such limits
\n     as may be laid down by the Railway Board.
\n\t  Note.-Provided  the  total  number  of  sanctioned
\n     gazetted post  in\tany  grade  (Heads  of\tDepartments,
\n     Deputy  Heads   of\t Departments,\tDistrict   Officers,
\n     Assistant\tOfficers  are  Class  II  Officers)  of\t the
\n     service concerned is not exceeded, General Managers are
\n     empowered to  vary solely in the public interest having
\n     regard to\tchanges in  the work and responsibilities of
\n     the posts,\t concerned  (and  not  in  the\tinterest  of
\n     individual officers),  the distribution of posts within
\n     that grade for a period not exceeding 12 months”.
\n\t  Rule 109 to the extent it is relevant in this case
\n     is as follows:\n<\/p><\/blockquote>\n
\t  “109. The  cadres of\tthe services and departments
\n     included in  Railway Services,  Classes I and II (other
\n     than the  Medical Department  and specialists posts) on
\n     Indian Railways  shall be\tfixed in accordance with the
\n     principles stated below :-\n<\/p><\/blockquote>\n
\t  (1)  Separate cadres\tshall be maintained for each
\n\t       Indian Railway.\n<\/p><\/blockquote>\n
\t  (2)  The number  of permanent\t working posts, that
\n\t       is, posts  required for\tordinary duty on the
\n\t       railway, shall  be first\t determined for each
\n\t       service or  department and  divided into\t the
\n\t       following grades :-<\/p><\/blockquote>\n
\n\t       (i)  Administrative,\n\t       (ii) District Officers,\n157<\/span>\n\t       (iii)Assistant\tOfficers    and\t  Class\t  II\n\t\t    Services.\n\t  (b)\t *\t  *\t       *\t     *\n<\/pre>\n
\t  (c)  The number  of posts  to be  allotted to\t the
\n\t       Assistant Officers’ grade shall be calculated
\n\t       with  reference\t to  the   total  number  of
\n\t       Administrative and  District Officers’ Posts,
\n\t       and shall  be so\t fixed\tas  to\tallow  of  a
\n\t       continuous  flow\t  of  promotion\t  from\t the
\n\t       Assistant Officers’ grade to the higher grade
\n\t       after a\tgiven period  of service.  For\tthis
\n\t       purpose,\t all   the   administrative   posts,
\n\t       including the  general administrative  posts,
\n\t       shall be taken into account.\n<\/p><\/blockquote>\n
\t  (d)  The rest\t of the\t posts included in (a) (iii)
\n\t       shall be allotted to the Class II Service.\n<\/p><\/blockquote>\n
\t  (e)  The total number of posts thus arrived at for
\n\t       each grade  in a\t department shall  form\t the
\n\t       permanent duty  strength of  each service  or
\n\t       department.\n<\/p><\/blockquote>\n
\t  (3)\t*\t     *\t\t *\t      *\n\t  (4)\t*\t     *\t\t *\t      *\n<\/pre>\n
     Rule 112  provides that  the number of posts sanctioned
\nin each\t grade in  a department shall in no case be exceeded
\nwithout the  sanction of the authority competent to create a
\npost, either permanent or temporary in the grade.\n<\/p><\/blockquote>\n
     Rule 116  prescribes that\texcept\tas  provided  in  r.\n<\/p><\/blockquote>\n
133(4) officiating  promotion  to  the\tAssistant  Officer’s
\ngrade or to a higher grade of gazetted Railway Servants from
\nClass II  service or  from the non-gazetted establishment is
\nnot permissible.\n<\/p>\n
     Rule  118(1)  provides  that  the\tnumber\tof  Gazetted
\nRailway servants  on duty  in a\t department shall not exceed
\nthe permanent duty strength sanctioned for that department.\n<\/p>\n
     Rule 125  prescribes that all appointments to a Railway
\nService Class  II shall\t be made  by the  President  on\t the
\nrecommendation of  the Union  Public Service Commission from
\ntime to time in accordance with the rules framed by them.\n<\/p>\n
158<\/span><\/p>\n
     Rule 129  provides that  the rate of normal recruitment
\nshall be  determined by\t the President with reference to the
\nsanctioned strength of a service or Department.\n<\/p>\n
     Rule 130  is important and may be fully extracted here.
\nIt is as follows:\n<\/p>\n
\t  “130. Method\tof recruitment.-Recruitment to Class
\n     I service\tin the various departments of Railways shall
\n     be made through-\n<\/p><\/blockquote>\n
\t  (a)  competitive examination\theld in India by the
\n\t       Union Public Service Commission;\n<\/p><\/blockquote>\n
\t  (b)  promotion  of  specially\t qualified  gazetted
\n\t       railway servants\t of  the  Class\t II  Service
\n\t       including   officiating\t  gazetted   railway
\n\t       servants of the service or department;\n<\/p><\/blockquote>\n
\t  (c)  in the  case of\tTransportation\t(Power)\t and
\n\t       Mechanical   Engineering\t   Department,\t  by
\n\t       appointment of  candidates as  Special  Class
\n\t       Apprentices; and\n<\/p><\/blockquote>\n
\t  (d)  occasional  admission   of  other   qualified
\n\t       persons on  the recommendation  of the  Union
\n\t       Public Service Commission.\n<\/p><\/blockquote>\n
\t  Note.-The quota  reserved for\t permanent promotion
\n     from Class\t II to\tClass I has been fixed at 33-1\/3% of
\n     the vacancies  in the  Junior Scale,  Class  I  (Senior
\n     Scale in the case of Medical Department).<\/p><\/blockquote>\n
     Rule 131  provides that  Probationers  to\tthe  Railway
\nService Class  I shall\tbe required  to undergo\t a period of
\ntraining as may be prescribed by the President.\n<\/p>\n
     Rule 132  provides for  recruitment to  Railway Service
\nClass II.\n<\/p>\n
     Rule 133  deals with  promotions to  gazetted posts. We
\nare concerned  with rule  133(3)(c) and\t (f)  which  to\t the
\nextent relevant were previously as follows:\n<\/p>\n
\t  “133. Promotions to gazetted posts.-\n<\/p><\/blockquote>\n
\t  (1)  *\t *\t   *\t    *\n\t  (2)  *\t *\t   *\t    *\n159<\/span>\n\t  (3)  The General Manager may appoint-\n\t  (a)  *\t *\t   *\t     *\n\t  (b)  *\t *\t   *\t     *\n<\/pre>\n
\t  (c)  An Assistant Officer to officiate as District
\n\t       Officer,\t provided   that  such\t a  gazetted
\n\t       railway\tservant\t  who  has  not\t passed\t the
\n\t       efficiency bar may be so appointed only, if-\n<\/p><\/blockquote>\n
\t       (i)  a  gazetted\t  railway  servant  who\t has
\n\t\t    passed  the\t  efficiency  bar   is\t not
\n\t\t    available; or\n<\/p><\/blockquote>\n
\t       (ii) the vacancy\t is not\t expected to  exceed
\n\t\t    three months;\n<\/p><\/blockquote>\n
\t  (d)(e)     *\t\t *\t    *\n<\/p><\/blockquote>\n
\t  (f)  substantively, an  Assistant Officer  to\t the
\n\t       District grade  provided such  promotions are
\n\t       made in\tstrict order  of  seniority  subject
\n\t       further to  the\tcondition  that\t no  officer
\n\t       shall be\t so promoted  unless he has rendered
\n\t       not less\t than ten years of total service and
\n\t       has been declared fit to cross the efficiency
\n\t       bar in the junior scale.\n<\/p><\/blockquote>\n
\t  Note.-The period of 10 years of total service will
\n     also include  the two  years of training in the case of
\n     direct  recruits.\t In  respect  of  promoted  gazetted
\n     railway servants all those placed in the Seniority list
\n     above the\tlast direct  recruit who  fulfils the  above
\n     condition will receive confirmation in their turn.”\n<\/p><\/blockquote>\n
These provisions were also amended on December 31, 1975, and
\nthey are now as follows :-\n<\/p>\n
\t  “(c) an  Assistant Officer  to  officiate  in\t the
\n     Senior Scale  provided that  such an  Assistant Officer
\n     who has  not  passed  the\tefficiency  bar\t may  be  so
\n     appointed only, if an
\n     Assistant Officer, who has passed the efficiency bar is
\n     not available;\n<\/p><\/blockquote>\n
\t  (d)\t   *\t     *\t\t*\t      *
\n160<\/span>\n<\/p><\/blockquote>\n
\t  (f)  substantively, an  Assistant Officer  to\t the
\n     Senior Scale,  provided such  promotions  are  made  in
\n     strict  order  of\tseniority  subject  further  to\t the
\n     condition that  no officer\t shall be so promoted unless
\n     he has  rendered not  less than  eight years  of  total
\n     service  and   has\t been  declared\t fit  to  cross\t the
\n     efficiency bar in the junior scale.\n<\/p><\/blockquote>\n
\t  Note.-The period  of eight  years of total service
\n     will also include the two years of training in the case
\n     of direct\trecruits. In  respect of  promoted  gazetted
\n     railway servants all those placed in the seniority list
\n     above the\tlast direct  recruit who  fulfils the  above
\n     condition will receive a confirmation in their turn”.<\/p><\/blockquote>\n
     Rule 139  makes provision for the making of recruitment
\nrules and  the note to rule 139 provides that in the case of
\nrecruitment to gazetted posts, the rules should be published
\nin the Gazette of India in the section allotted to Statutory
\nRules and Orders.\n<\/p>\n
     Rule 144  obliges every  railway servant  to execute an
\nagreement with\tthe President  of India\t at the\t time of his
\nsubstantive appointment\t and  further  provides\t that  those
\nappointed for  a limited  period may  also  be\trequired  to
\nexecute such agreements.\n<\/p>\n
     Rule 2003(3)  defines cadre as meaning ‘the strength of
\na service  or a\t part of  a service sanctioned as a separate
\nunit’.\n<\/p>\n
     Rule 2003(22)  defines a  permanent post  as meaning  a
\npost carrying  a definite  rate of  pay\t sanctioned  without
\nlimit of time.\n<\/p>\n
     Rule 2003(29)  defines a  temporary post  as meaning  a
\npost carrying  a definite  rate\t of  pay  sanctioned  for  a
\nlimited time.\n<\/p>\n
     Rule 2003(30)  defines  a\ttenure\tpost  as  meaning  a
\npermanent post\twhich an  individual Railway servant may not
\nhold for more than a limited period.\n<\/p>\n
     Rule 2003(31) defines time scale of pay and whole of it
\nmay be extracted here:\n<\/p>\n
\t  “(31) (a)  Time-scale pay  means pay which subject
\n     to any  conditions prescribes  in these rules, rises by
\n     periodical increments  from a  minimum to a maximum. It
\n     includes  the   slabs  of\t pay   formerly\t  known\t  as
\n     progressive.\n<\/p><\/blockquote>\n
\t  (b) Time-scales  are said  to be  identical if the
\n     minimum, the  maximum, the\t period of increment and the
\n     rate of increment of the time-scales are identical
\n161<\/span>\n<\/p><\/blockquote>\n
\t  (c) A\t post is  said to be on the same, time-scale
\n     as another\t post on a time-scale if the two time scales
\n     are identical  and the  posts fall within a cadre, or a
\n     class in  a cadre,\t such cadre  or\t class\thaving\tbeen
\n     created in\t order to fill all posts involving duties of
\n     approximately  the\t  same\tcharacter   or\t degree\t  of
\n     responsibility, in\t a service or establishment or group
\n     of establishments; so that the pay of the holder of any
\n     particular post  is determined  by his  position in the
\n     cadre or  class, and not by the fact that he holds that
\n     post”.<\/p><\/blockquote>\n
     15. The  earlier narrated\tfacts show  that  for  quite
\nseveral years it was distinctly understood by the appointing
\nauthority as  well as  the persons  appointed that those who
\nwere appointed as Temporary Assistant Engineers on the basis
\nof the selection made by the Union Public Service Commission
\ndid not\t belong either\tto Class  I or\tto Class  II of\t the
\nIndian Railway\tService of Engineers. It was understood that
\nthey would  be eligible\t for being considered for absorption
\nin the\tIndian Railway\tService of  Engineers Class  I in an
\nannual quota  reserved for  such absorption  and that  their
\nseniority would\t be reckoned  thereafter from  the  date  of
\ntheir confirmation  in Class  I. It was also understood that
\nthey would be eligible for being considered for promotion to
\nofficiating posts  in the  senior scale.  This\tposition  in
\nregard\tto   their  status   was  made\tclear,\twithout\t the
\npossibility  of\t a  shadow  of\tdoubt,\tin  the\t letters  of
\nappointment issued  to them  and the  agreements which\tthey
\nwere required  to execute. Considerable argument as advanced
\non the\tquestion whether  a service  not contemplated by the
\nIndian Railway\tEstablishment  Code  could  be\tcreated\t and
\nwhether\t appointments\tof  Gazetted  Railway  servants\t not
\nfalling in Class I or Class II and therefore falling outside
\nthe provisions\tof the\tIndian\tRailway\t Establishment\tCode
\ncould be  made. The  submission was  that the Indian Railway
\nEstablishment Code  did not  contemplate a  class of service
\nwhich did not belong either to Class I or Class II, and that
\nevery gazetted railway servant had to belong either to Class
\nI or  Class II\tand the\t question whether the posts to which
\nappointments were  made belonged to Class I or not had to be
\ndetermined  with   reference  to   the\tminimum\t educational
\nqualifications prescribed  for the  post, the scales of pay,
\nthe  functions\t and  duties  etc.  It\twas  submitted\tthat
\nnotwithstanding\t the  clear  assertion\tin  the\t letters  of
\nappointment and\t the agreements,  the petitioners  must,  in
\nlaw, be\t considered to\thave been  appointed to\t the  Indian
\nRailway Service\t of  Engineers\tClass  I  and  to  no  other
\nservice.\n<\/p>\n
     16. Art.  53 of  the Constitution\tvests the  executive
\npower of  the Union in the President, to be exercised by him
\neither directly or through
\n162<\/span>
\nofficers  subordinate\tto  him,   in  accordance  with\t the
\nConstitution. Art.  73(1)(a) stipulates\t that the  executive
\npower of the Union shall extent “to the matters with respect
\nto which  Parliament has  power to make laws”. “Union Public
\nService and  all-India Services”  are included in item 70 of
\nthe Union  List (List I of the Seventh Schedule) enumerating
\nthe  matters  with  respect  to\t which\tParliament  has\t the
\nexclusive power to make laws. The proviso to Art. 309 of the
\nConstitution makes  it competent  for the  President or such
\nperson as he may direct in the case of services and posts in
\nconnection with\t the affairs  of the  Union, to\t make  rules
\nregulating the recruitment, and the conditions of service of
\npersons\t appointed,   to  such\t services  and\tposts  until
\nprovision in  that behalf  is made by or under an Act of the
\nParliament to  regulate the  recruitment and  conditions  of
\nservice of persons appointed to public services and posts in
\nconnection with the affairs of the Union.\n<\/p>\n
     17. The  inevitable sequitur  from these Constitutional
\nprovisions is that the President, acting directly or through
\nOfficers subordinate to him, is free to constitute a service
\n(with as many cadres as he chooses), to create posts without
\nconstituting a\tservice or  to\tcreate\tposts  outside\t(the
\ncadres of)  the constituted  service. The  President (or the
\nperson directed\t by him)  may, or, again if he so chooses he
\nmay  not,   make  rules\t  regulating  the   recruitment\t and
\nconditions of  service of  persons appointed to such service
\nor  posts.   He\t is  also  free\t to  make  or  not  to\tmake
\nappointments to such services or posts. Nor is it obligatory
\nfor him\t to make  rules of recruitment etc. before a service
\nmay be constituted or a post created or filled. But if there
\nis an  Act of Parliament or a rule under the proviso to Art.
\n309 on\tthe matter,  the executive  power, under Articles 53
\nand 73,\t may not be exercised in a manner in consistent with
\nor contrary to such Act or rule (vide B. N. Nagarajan & Ors.
\nv. State  of Mysore & Ors., State of Kerala<\/a> v. M. K. Krishan
\nNair & Ors., etc. etc.
\n     17a. So,  the previous  existence of the Indian Railway
\nService of  Engineers and  the rules made for recruitment to
\nthat service  do not bar the constitution of another service
\nor the\tcreation of  posts outside  the cadres of the Indian
\nRailway Service\t of Engineers. That, precisely, was what was
\ndone  in   1956\t and   subsequent  years   upto\t 1965.\t The
\nadministrative expedience  and exigence of the time required
\nthe creation  of temporary  posts outside  the cadres of the
\nIndian Railway
\n163<\/span>
\nService of  Engineers. The  circumstances  and\tthe  reasons
\nnecessitating the  creation  of\t these\tposts  of  Temporary
\nEngineers were\tfully set  out in  the ‘letters\t of  indent’
\naddressed by  the Railway  Board to the Union Public Service
\nCommission, the details of which have already been mentioned
\nby us in paragraph 4 supra. The posts so created were not to
\nbe confused  with the  posts in\t the  cadre  of\t the  Indian
\nRailway Service\t of Engineers  Class I\tnotwithstanding that
\nthe scale  of pay  and the  duties were to be the same. That
\nthe posts  were not  to be treated as in Class I or in Class
\nII of  the Indian Railway Service of Engineers was expressly
\nmentioned and  clarified in  the requisitions  made  by\t the
\nRailway Board to the Union Public Service Commission and the
\ncorrespondence which  ensued between  the Railway  Board and
\nthe Union  Public Service Commission. It was also made clear
\nin the letters of appointment and the agreements required to
\nbe executed  by the  persons appointed. Though to start with
\nthere was  no Presidential  sanction for the creation of the
\nposts  of   Temporary  Assistant  Officers  in\tthe  various
\nDepartments of\tIndian Railways, which were neither in Class
\nI nor in Class II but merely in gazetted service, the matter
\nwas soon rectified by the grant of Presidential sanction for
\nthe posts  in November\t1956 and  by the  President  further
\nspecifying the\tRailway Board  as the authority competent to
\nmake appointments of such temporary Assistant Officers. This
\nis apparent  from the  letter  No.  E-55RC-16(Pt.  A)  dated
\nNovember 22,  1956 and\tletter No.  5 (GF-P)56\tRC-16\/Pt.  A
\ndated December\t12,  1956  to  which  we  have\treferred  in
\nparagraph 8 supra.\n<\/p>\n
     18. The posts of Temporary Assistant Officers were thus
\ncreated, and  appointments made,  under valid  authority and
\noutside the existing cadres of the Indian Railway Service of
\nEngineers. The\tletters of “indent”, the advertisements, the
\nletters of  appointment and  the agreements  show  that\t the
\ntemporary Assistant Officers appointed in this fashion after
\nselection by  the Union Public Service Commission were to be
\na source  of recruitment  to the  Indian Railway  Service of
\nEngineers Class\t I. It\twas so understood from the inception
\nby  the\t  persons  appointed   as  well\t  as   the   Railway
\nAdministration. In  fact  subsequent  absorptions  into\t the
\nIndian Railway\tService of  Engineers was  the sugar, if one
\nmay use\t such an  expression,  held  cut  to  those  seeking
\nappointment as\ttemporary Assistant Officers. Year by year a
\nfew Temporary  Assistant Officers  were indeed absorbed into
\nthe Indian Railway Service of Engineers after selection by a
\nDepartmental  Promotion\t Committee  and\t be  it\t noted,\t not
\nautomatically  on  the\tbasis  of  seniority.  If  Temporary
\nAssistant Officers were to be a source of recruitment to the
\nIndian Railway\tService of  Engineers Class I, we do not see
\nhow any temporary Assistant Officer could possibly be under
\n164<\/span>
\nany misapprehension  that he  was appointed  to\t the  Indian
\nRailway Service\t of Engineers Class I or could claim that he
\nwas appointed to such service.\n<\/p>\n
     19. It  is not  possible to  accept the submission that
\nthey must  be considered  to have  been appointed  under  r.
\n130(d)\tof  the\t Indian\t Railway  Establishment\t Code  which
\nprovides for occasional admission of other qualified persons
\non the recommendation of the Union Public Service Commission
\nmerely because\tthey were  selected for\t appointment by\t the
\nUnion Public  Service Commission, their scale of pay was the
\nsame as\t that of  the Class  I Junior  Scale Officers of the
\nIndian Railway\tService of  Engineers and  their duties were
\nthe  same.   There  were   special  reasons  for  recruiting
\nTemporary Assistant  Officers  outside\tthe  cadres  of\t the
\nIndian\tRailway\t  Service  of  Engineers  and  when  it\t was
\nadmittedly and avowedly so done, and when right through such
\nofficers were  merely treated  as a source of recruitment to
\nthe Indian  Railway Service  of Engineers,  it would  not be
\npermissible for\t us to\thold that  the\tTemporary  Assistant
\nOfficers were  recruited to  the cadre of the Indian Railway
\nService of Engineers Class I.\n<\/p>\n
     20. One  of the submissions of the petitioners was that
\nwhatever the  Railway Board  might be asserting now or might
\nhave  asserted\teven  from  the\t inception,  factually,\t the
\nTemporary Assistant  Officers were  appointed  to  temporary
\nposts borne  on the  cadre  of\tIndian\tRailway\t Service  of
\nEngineers Class\t I and\tnot to\tany ex-cadre  posts. It\t was
\nsubmitted that\tthe posts  to which  appointments were\tmade
\nwere not  temporary posts  in the sense that they were posts
\nof short  duration; they  were posts,  which admittedly were
\nlikely to continue indefinitely and even made permanent. The
\nappointments  could,  therefore,  have\tonly  been  made  to
\ntemporary posts\t borne on  the cadre  of the  Indian Railway
\nService of  Engineers. We  do not  think that  there is\t any
\nsubstance in  these submissions.  It is no doubt true that a
\ncadre may  consist of  permanent as  well as temporary posts
\nand there may be permanent vacancies in permanent as well as
\ntemporary posts\t borne on  the cadre. But it does not follow
\nthat appointments  stated to  be made  to posts\t outside the
\nvary service  and therefore  necessarily outside  the  cadre
\nmust be\t considered to\tbe made\t to temporary posts borne on
\nthe cadre  merely because  the posts were likely to continue
\nindefinitely and  did so  continue. We do not see how we can
\nignore\tthe   very  purpose  of\t scheme\t of  recruitment  of
\nTemporary Assistant  Officer which  was to recruit Temporary
\nAssistant Officers  outside the\t existing Service and cadres
\nto meet\t the anticipated  requirements\tof  certain  special
\nobjects. Even in the requisition made in the prescribed form
\nby the\tRailway Board to the Union Public Service Commission
\nit was men-\n<\/p>\n
165<\/span><\/p>\n
tioned “the  posts will\t be sanctioned shortly in connection
\nwith a\tnumber of  projects”. It  was not mentioned that the
\nposts were  already borne on the cadre of the Indian Railway
\nService of  Engineers. Our  attention  was  invited  to\t the
\nAnnual\tAdministrative\t Reports  where,  it  was  said,  no
\ndistinction was\t made between  classified  and\tunclassified
\nservice. We  do not  think that\t these reports\tare  of\t the
\nslightest help.\t The reports  merely refer  to appointments,
\ntemporary as well as permanent, made in the gazetted service
\nby  direct   recruitment.  Gazetted  Railway  services\tmust
\ninclude both the Indian Railway Service of Engineers and the
\nGazetted  Railway   Service  constituted  by  the  temporary
\nAssistant Officers. Therefore, by merely taking into account
\nthe number  of Temporary  Assistant Officers for the purpose
\nof calculating\tthe total  number of  persons  appointed  to
\nGazetted Railway  Service it cannot conceivably be said that
\nTemporary Assistant  Officers were  appointed to cadre posts
\nin the\tIndian Railway\tService of  Engineers. Our attention
\nwas  also  invited  to\tthe  classified\t lists\tof  Officers
\npublished by  the Railway Board. This list takes the case of
\nthe petitioners\t no further. There is nothing in the list to
\nindicate  that\tpersons\t who  were  appointed  as  Temporary
\nAssistant Officers  were appointed  to posts  borne  on\t the
\ncadre of  Indian Railway  Service of Engineers. On the other
\nhand under  the column\t“Date of  appointment to  Class”  no
\nentry is  made against\tthe names  of any  of the  Temporary
\nAssistant Officers  who had  not yet  been absorbed into the
\nIndian Railway\tService of  Engineers. We were also referred
\nto the\treports of  the\t Administrative\t Reforms  Commission
\nwhere it is said “In the Railways there is a sizeable number
\nof unclassified\t posts equivalent to Junior Class I and only
\na small\t number of them are taken each year into the regular
\nservice”. This\tstatement does\tnot support  the case of the
\npetitioners that  they were  appointed to posts borne on the
\ncadre of  Indian Railway  Service of Engineers. Far from it.
\nPassages from the reports of the Central Pay Commission were
\nalso read  out to  us  to  emphasize  that  the\t posts\thave
\ncontinued  over\t  the  years  indefinitely.  If\t posts\twere
\ninitially created  and sanctioned  for short  periods, we do
\nnot  see   how\tthe  subsequent\t continuance  of  the  posts
\nindefinitely would  make  persons  appointed  to  the  posts
\nmembers of  the regular\t service, namely, the Indian Railway
\nService of Engineers Class I.\n<\/p>\n
     21. Considerable  argument was advanced on the question
\nof the\t‘status’ and  the effect  of the  ‘note’ found below
\nrule 106. It was said that the note did not form part of the
\nrules made by the President under the proviso to Article 309
\nof the\tConstitution and  therefore it\tcould not  amend the
\nother statutory\t rules. The note was neither declaratory nor
\nexplanatory and was of no affect whatever. We think that the
\nargument regarding  the ‘status’  and the effect of the note
\nis of no real
\n166<\/span>
\nrelevance. The\tnote merely states an existing fact known to
\nall  concerned.\t  It  was  known  that\tposts  of  Temporary
\nAssistant Officers  in gazetted railway service who were not
\nto be classified ‘either as Class I or as Class II’ had been
\nsanctioned by  the President  who had designated the Railway
\nBoard as  the authority\t competent to  make appointments  to
\nthose posts.  The note\tbelow rule  106 merely\tstated\tthis
\nfact. With  or without\tthe note,  the\tTemporary  Assistant
\nOfficers would\tstill not be classified either as Class I or
\nClass II.  Their classification outside Class I and Class II
\nwas not dependant on the note but on the Presidential action
\nin regard to the creation of the posts.\n<\/p>\n
     22. This  is perhaps an appropriate stage for referring
\nto the amendments, introduced in 1975, to the Indian Railway
\nEstablishment  Code.  The  expression  ‘Temporary  Assistant
\nOfficers’, which  was not  previously defined in the Railway
\nEstablishment Code,  was sought\t to be defined by new clause
\n17 of R. 102 to mean “a Gazetted Railway Servant drawing pay
\non the\tscale applicable  to Junior  Scale Offices  but\t not
\nclassified either  as Class  I or  as Class II Officer”. The
\nexpression Assistant  Officer was  redefined so\t as  not  to
\ninclude\t a   Temporary\tAssistant   Officer  who   was\t not
\n‘classified either  as Class  I or  as Class II’. Apart from
\nthe principal  submission  that\t the  1975  amendments\twere
\nviolative of  Arts. 14\tand 16\tof the\tConstitution, it was
\nsubmitted that the amendments were prospective in nature and
\ndid  not  affect  the  petitioners  all\t of  whom  had\tbeen
\nappointed as  Temporary Assistant Officers long prior to the
\n1975 amendment. We do not think that the amendments have any
\neffect one  way or  the other on the status of the Temporary
\nAssistant Officers.  What  was\talways\twell  known  to\t the
\nTemporary Assistant  Officers and the Railway Board and what
\nwas the\t inevitable result  of the Presidential sanction for
\nthe creation of posts which were not to be classified either
\nas Class  I or\tClass II,  was made  explicit in  the Indian
\nRailway Establishment code also by the introduction of these
\namendments.  This  became  necessary  because  in  the\tWrit
\nPetition filed\tby Katyani  Dayal, the Allahabad High Court,
\nwhile appearing\t to hold  that Temporary  Assistant Officers
\nbelonged neither  to Class  I nor  to Class II service, held
\nthat they  came\t within\t the  then  existing  definition  of
\n‘Assistant Officer’  so as  to entitle\tthem  for  promotion
\nunder r.  133 of  the Indian  Railway Establishment Code. We
\nare afraid  it was  the use  of\t the  expression  ‘Temporary
\nAssistant Officer’  that has  led to considerable confusion.
\nThe expression\t‘Temporary Assistant  Officer’ was coined to
\ndescribe the  new post\tcreated for  the first time in 1955.
\nThe expression\twas not used to signify officers temporarily
\nholding the  posts of  Assistant  Officers  in\tthe  several
\nestablished  Railway  Services.\t For  instance\ta  Class  II
\nAssistant Engineer
\n167<\/span>
\nwho is temporarily promoted to hold the post of an Assistant
\nEngineer Class\tI may  be described as a Temporary Assistant
\nOfficer but he certainly would not be a ‘Temporary Assistant
\nOfficer’ appointed  to any of the posts specially created by
\nthe President which were neither in Class I nor in Class II.
\nThe word  ‘Temporary’ in the expression ‘Temporary Assistant
\nOfficer’  was  not  used  to  qualify  the  words  Assistant
\nOfficer.  The  whole  of  the  expression  was\tintended  to
\ndescribe the  particular post,\twhich was neither in Class I
\nnor Class  II, which  was created  in 1955.  There would not
\nhave been  any confusion and it would have been much happier
\nif instead  of the  expression Temporary  Assistant  Officer
\nsome other  expression such  as Special Assistant Officer or
\nSpecial Assistant  Engineer had\t been chosen.  We are of the
\nview that  the Allahabad  High Court  was not  justified  in
\nlooking at  the amended definition of ‘Assistant Officer’ in
\nisolation and  concluding  that\t the  expression  ‘Assistant
\nOfficer’  included   Temporary\tAssistant   Officer  because
\nTemporary Assistant  Officer was  also\ta  gazetted  Railway
\nservant who  drew the junior scale of pay. The definition of
\nAssistant Officer  was not  to be  read in isolation in that
\nmanner. It  should have\t been read  conjunctively with Rules
\n105, 106  and 108.  A reference\t to Rule 105 would show that
\nfor  the  purposes  of\tthe  rules  in\tthe  Indian  Railway
\nEstablishment Code,  Railway services  were to be classified
\ninto Class  I, Class  II, Class\t III, Class  IV and Workshop
\nstaff. Rule  106 specified  the appointment  and  categories
\nfalling under  the services  mentioned in Rule 105. Rule 108
\nrequired the  Railway Board  to\t fix  the  strength  of\t the
\nRailway\t Services’   Class  I  and  Class  II.\tThere  could
\ntherefore, be  no question  of an officer not falling within
\nthe class, category or cadre specified in rules 105, 106 and
\n108 claiming to be an ‘Assistant Officer’ within the meaning
\nof that\t expression. A\tperson\trecruited  to  the  post  of
\n‘Temporary Assistant  Officer’ not  classified as Class I or
\nClass II  Officer could\t not claim  to belong  to the Class,
\ncategory or  cadre specified  in Rules\t105, 106 and 108 and
\nwas, therefore,\t not an Assistant Officer within the meaning
\nof that expression even before the 1975 amendment.\n<\/p>\n
     23. We  now come to the principal submission made to us
\nnamely\tthat   the  classification  of\tTemporary  Assistant
\nOfficers separately  from  the\tIndian\tRailway\t Service  of
\nEngineers Class I was discriminatory and had no nexus to the
\nobject to  be achieved namely efficiency of service and was,
\ntherefore,  violative\tof  Articles   14  and\t 16  of\t the
\nConstitution.  It  was\targued\tthat  the  minimum  academic
\nqualification for the posts of ‘Temporary Assistant Officer’
\nwas the\t same as  that prescribed  for entry into the Indian
\nRailway Service\t of Engineers  Class I,\t the scale of pay of
\n‘Temporary Assistant Officer’ was the same as hat of a Class
\nI Officer of Junior Scale, the functions and duties were
\n168<\/span>
\nsimilar and  on all  matters  not  expressly  provided,\t the
\nTemporary Assistant  Officers like  Class I officers were to
\nbe governed  by the  provisions of the Railway Establishment
\nCode and  the Rules  made  thereunder.\tThere  was  so\tmuch
\nidentity  on  all  vital  and  important  matters  that\t the
\nclassification of ‘Temporary Assistant Officers’ outside the
\nIndian Railway\tService of  Engineers Class I was arbitrary.
\nIt led\tto all\tmanner of  discrimination in  the matter  of
\nadvancement  in\t  service,  seniority,\tpromotion  etc.\t The
\nunfairness  of\t it  all   was\tsought\t to  be\t graphically
\ndemonstrated by\t pointing out  how  after  twenty  years  of
\nservice\t Temporary   Assistant\tOfficers   continued  to  be
\nTemporary  Assistant   Officers\t while\t Class\tI   officers
\nrecruited much\tlater were  placed much\t higher than them in
\norder of seniority and had risen to much higher positions in
\nthe service. Another limb of the argument on the question of
\ndiscrimination was  that all Assistant Officers whether they
\nwere permanent\tAssistant Officers  or\tTemporary  Assistant
\nOfficers  constituted\ta  single   cadre  and\tit  was\t not
\npermissible to\tfurther classify  them on  the basis  of the
\nmanner\tof   their  recruitment,   namely,  by\t competitive
\nexamination or\tby selection  by the  Union  Public  Service
\nCommission. Part  of this submission has already been met by
\nus and\twe have\t shown how  Temporary Assistant Officers are
\nnot Assistant Officers within the meaning of that expression
\nin the Indian Railway Establishment Code.\n<\/p>\n
     24.  It   is  true\t  that\t the   minimum\t educational
\nqualification for  the post  of Temporary  Assistant Officer
\nwas the\t same as  that for recruitment to the Indian Railway
\nService of  Engineers Class  I. It is true that the scale of
\npay is\tthe same, and the functions and duties are the same.
\nIt is  also true  that except  to the  extent provided,\t the
\nTemporary  Assistant  Officers\twere  also  subject  to\t the
\nprovisions of  the Indian Railway Establishment Code and the
\nrules made  thereunder. But,  there are\t certain fundamental
\ndifferences between  two classes which cannot be ignored and
\nwhich  demand  attention.  To  begin  with,  the  object  of
\nrecruitment to the Indian Railway Service of Engineers is to
\nprovide\t Officers   of\tthe  highest  quality  to  meet\t the
\nrequirements of\t all posts  in the  service including Senior
\nAdministrative posts.  Rule 109(2)(c)  of the Indian Railway
\nEstablishment Code,  extracted\tearlier\t expressly  provides
\nthat the  number of  posts to  be allotted  to the Assistant
\nOfficers’ grade\t shall be  calculated with  reference to the
\ntotal number of administrative and District Officers’ posts,
\nand shall  be so  fixed as  to allow of a continuous flow of
\npromotion from\tthe Assistant  Officers’ grade to the higher
\ngrades after a given period of service. For this purpose all
\nthe   administrative\tposts\t including    the    general
\nAdministrative posts  are required to be taken into account.
\nOn the
\n169<\/span>
\nother hand  the object\tof  recruiting\tTemporary  Assistant
\nOfficers  was  to  meet\t specific  requirements\t of  various
\nprojects  with\ta  prospect  of\t promotion  in\ta  temporary
\ncapacity to  a senior  scale post  and absorption  into\t the
\nIndian Railway\tService of  Engineers Class I. They were not
\nto be members of the Indian Railway Service of Engineers but
\nwere to\t be a  source of  recruitment to  the Indian Railway
\nService\t of   Engineers.  Thus\t the  very  appointments  of
\nTemporary Assistant Officers were to temporary posts outside
\nthe cadre  and outside\tthe recruitment\t rules of the Indian
\nRailway Service\t of Engineers Class I and the very nature of
\nthis  tenure   was  precarious,\t whereas  Class\t I  Officers
\nrecruited  on\tthe  basis   of\t a   result  of\t competitive
\nexamination  were  appointed  to  cadre\t posts\tstrictly  in
\naccordance with the recruitment rules.\n<\/p>\n
     25. Next  and equally  important,\tis  the\t fundamental
\nqualitative  differences,   linked  with   the\t method\t  of
\nrecruitment. True,  the minimum educational qualification is
\nthe same.  But, those  who are\trecruited  directly  to\t the
\nIndian Railway Service of Engineers Class I are subjected to
\nstiff and  competitive, written\t and personality tests. Only
\nthe very  best\tcan  aspire  to\t come  out  successful.\t The
\nTemporary Assistant  Officers were not subjected either to a
\nwritten or  to a  personality test  but were selected on the
\nbasis  of   an\tinterview   by\tthe   Union  Public  Service
\nCommission.  In\t  addition  to\t the   minimum\t educational
\nqualification, three  years’ experience\t as a Civil Engineer
\nwas also  prescribed. Thus  while brilliance  was the beacon
\nlight which beckoned those aspiring to become members of the
\nIndian Railway Service of Engineers Class I, it was replaced
\nby experience  in the  case of those wanting to be Temporary
\nAssistant Officers.  Again the\tappointing authority  in the
\ncase of\t Indian Railway\t Service of Engineers Class I is the
\nPresident while\t the appointing\t authority in  the  case  of
\nTemporary Assistant  Officers  was  the\t Railway  Board,  no
\ndoubt, pursuant\t to the\t authority given  by the  President.
\nDifferent courses of training were prescribed for the Indian
\nRailway Service\t of Engineers  and the\tTemporary  Assistant
\nOfficers. For  the Indian  Railway Service  of Engineers the
\ntraining is  an intensive  and comprehensive one designed to
\nequip them for higher posts in the Department too, while the
\ntraining for  Temporary Assistant  Engineers was a brief six
\nmonths’ training  intended merely to equip them for carrying
\nout the specific jobs. In the matter of terms and conditions
\nof service,  while the\tprovisions  of\tthe  Indian  Railway
\nEstablishment  Code  are  fully\t applicable  to\t the  Indian
\nRailway Service\t of Engineers  Class I, those provisions are
\napplicable to  “Temporary Assistant  Officers” to the extent
\nthere  is   no\tspecific   provision  in   their  letter  of
\nappointment and agreement.\n<\/p>\n
170<\/span><\/p>\n
     26.   Keeping    in   mind\t  these\t  similarities\t and
\ndissimilarities, let  us  examine  the\tlegal  position.  We
\ncannot do better than to refer to the decisions cited at the
\nBar, not all, but a few illustrative cases.\n<\/p>\n
     27. In  State of Punjab v. Joginder Singh, the<\/a> question
\narose whether  the constitution by the State of two Services
\nconsisting  of\temployees  doing  the  same  work  but\twith
\ndifferent scales  of pay  or subject to different conditions
\nof service  such as  promotional opportunities was violative
\nof Articles  14 and  16 of  the Constitution.  The  argument
\nbased on  the postulate\t that equal  work must receive equal
\npay was\t repelled by quoting the following observations from
\nan earlier  decision of\t the Court  in Kishori\tMohanlal  v.
\nUnion of India.<\/a>:\n<\/p>\n
\t  “The only other contention raised in that there is
\n     discrimination between  Class I  and Class\t II officers
\n     inasmuch as  though they do the same kind of work their
\n     pay scales\t are different.\t This, it  is said, violates
\n     Art. 14 of the Constitution. If this contention had any
\n     validity, there  could be\tno incremental scales of pay
\n     fixed  dependant\ton  the\t duration  of  an  officer’s
\n     service. The  abstract doctrine  of equal pay for equal
\n     work has  nothing to  do with  Art. 14.  The contention
\n     that Art.\t14 of  the Constitution\t has  been  violated
\n     therefore, also fails.”\n<\/p><\/blockquote>\n
The second  postulate that  if there was equality in pay and
\nwork there  must be equal conditions of service was rejected
\nas unsound. It was observed (at p. 191-192):\n<\/p>\n
\t  “If,\tfor   instance,\t an   existing\tservice\t  is
\n     recruited on  the basis of a certain qualification, the
\n     creation of another service for doing the same work, it
\n     might be  in the  same way but with better prospects of
\n     promotion cannot  be said\tto be  unconstitutional, and
\n     the fact that the rules framed permit free transfers of
\n     personnel of the two groups to places held by the other
\n     would not\tmake any  difference. We are not basing this
\n     answer on\tany theory  that  if  a\t government  servant
\n     enters into  any contract\tregulating the conditions of
\n     his service  he cannot  call in  aid the constitutional
\n     guarantees because\t he is\tbound by  his contract.\t But
\n     this conclusion  rests on\tdifferent and  wider  public
\n     grounds, viz., that the government which is carrying on
\n     the administration\t has necessarily to have a choice in
\n     the  constitution\t of  the   services   to   man\t the
\n     administration and\t that the limitations imposed by the
\n     constitution are not
\n171<\/span>
\n     such as  to preclude  the creation\t of  such  services.<\/p><\/blockquote>\n
     Besides,  there   might,  for  instance,  be  temporary
\n     recruitment to  meet an  exigency or an emergency which
\n     is not  expected to  last for any appreciable period of
\n     time. To  deny to\tthe government\tthe power to recruit
\n     temporary staff drawing the same pay and doing the same
\n     work as  other permanent  incumbents within  the  cadre
\n     strength but governed by different rules and conditions
\n     of service,  it might be including promotions, would be
\n     to impose\trestraints on  the manner  of administration
\n     which we believe was not intended by the constitution.’
\nExamining the  facts of\t the  case  before  them  the  Court
\nnoticed\t that\tthe  two  services  started  as\t independent
\nservices, the  qualifications prescribed for entry into each
\nwere different,\t the method of recruitment and the machinery
\nfor  recruitment   were\t different  and\t they  continued  as
\ndifferent services  and\t were  never  interpreted  into\t one
\nservice. The Court said (at p. 193):\n<\/p>\n
\t  “If they  were distinct  services,  there  was  no
\n     question of  inter se  seniority between members of the
\n     two services,  nor of any comparison between the two in
\n     the matter\t of promotion for founding an argument based
\n     upon Art.\t14 or Art. 16(1). They started dissimilarity
\n     and they  continued dissimilarly  and any dissimilarity
\n     in their  treatment would\tnot be\ta  denial  of  equal
\n     opportunity, for  it is  common ground that within each
\n     group there  is no denial of that freedom guaranteed by
\n     the two Articles”.<\/p><\/blockquote>\n
     28. In State of Jammu & Kashmir v. Triloki Nath Khosa &
\nOrs.<\/a>  a\t rule  which  provided\tthat  only  those  Assistant
\nEngineers who  possessed a  degree in  Engineering would  be
\neligible for  promotion\t as  Executive\tEngineer  and  which
\ntotally denied\tany opportunity\t for promotion\tto Assistant
\nEngineers  who\t were  Diploma\tholders\t was  challenged  as
\ninfringing the\tfundamental rights guaranteed by Articles 14
\nand 16\tof the Constitution. Under the rules, recruitment to
\nthe cadre  of Assistant\t Engineer was  to be  made by direct
\nrecruitment of\tDegree holders\tin Civil  Engineering or  by
\ntransfer of  degree or\tdiploma holders\t who had  served  as
\nSupervisors for\t a period  of not  less than five years. The
\nargument was  that degree holders and diploma holders having
\nbeen integrated\t into a common class of Assistant Engineers,
\nthere  was  no\tjustification  for  the\t classification\t for
\npromotion to  the post\tof  Executive  Engineer.  The  Court
\nupheld\tthe   rule  and\t held  that  the  classification  of
\nAssistant Engineers into degree-holders
\n172<\/span>
\nand Diploma-holders  could not be said to rest on any unreal
\nor unreasonable\t basis. Classification\tmade with  a view to
\nachieving  administrative   efficiency\tin  the\t Engineering
\nService\t was   clearly\tco-related   to\t higher\t educational
\nqualifications since  higher educational  qualifications was
\natleast presumptive  evidence of  higher  mental  equipment.
\nEducational qualification  was always  recognised as  a safe
\ncriteria for determining the validity of classification. The
\nearlier decisions of the Court in Roshan Lal Tandon v. Union
\nof India,  and\tMoryan\tCoutindo  &  Ors.<\/a>  v.  Collector  of
\nCustoms, Bombay\t & Ors.,  were distinguished  on the  ground
\nthat they  were cases where direct recruits and promotes who
\nwere fused into a common stream of service were sought to be
\ntreated differently  by reference  to the consideration that
\nthey were  recruited from  different sources  whereas in the
\ncase before  the Court\tthe classification rested fairly and
\nsquarely on the consideration of educational qualifications.
\nIt was pointed out that the earlier cases did not rule out a
\nclassification on  a basis  other than\tthat they were drawn
\nfrom  different\t  sources.  However,   while  upholding\t the
\nvalidity of  the rule Chandrachud, J., and Krishna Iyer, J.,
\nuttered words  of caution  and it  is upon  these  words  of
\ncaution that the petitioners rely. Chandrachud, J., said (at
\np. 790):\n<\/p>\n
\t  “But we  hope\t that  this  judgment  will  not  be
\n     construed\tas   a\tcharter\t  for  making\tminute\t and
\n     microcosmic classifications. Excellence is, or ought to
\n     be, the  goal of all good government and excellence and
\n     equality are  not\tfriendly  bed-fellows.\tA  pragmatic
\n     approach has  therefore  to  be  adopted  in  order  to
\n     harmonize the  requirements of public services with the
\n     aspirations of  public servants.  But let us not evolve
\n     through   imperceptible   extensions,   a\t theory\t  of
\n     classification which may subvert, perhaps submerge, the
\n     previous guarantee of quality. The eminent spirit of an
\n     ideal society is equality and so we must not be left to
\n     ask in  wonderment. What  after all  in the operational
\n     residue of equality and equal opportunity?”\n<\/p><\/blockquote>\n
Krishna Iyer, J., said (at p. 792):\n<\/p>\n
\t  “Mini-classifications based  on micro-distinctions
\n     are false to our egalitarian faith and only substantial
\n     and straightforward  classifications plainly  promoting
\n     relevant goals  can have  constitutional  validity.  To
\n     overdo classification is to undo equality”.<\/p><\/blockquote>\n
173<\/span><\/p>\n
     29. In  Mohammed Shujat  Ali &  Ors. etc.\tv. Union  of
\nIndia &\t Ors. etc.  one of  the questions  which  arose\t for
\nconsideration  was  whether  the  distinction  made  between
\nGraduate Supervisors  and non-Graduate\tSupervisors and\t the
\nallocation, to\tthese categories, of three and one vacancies
\nrespectively out  of every four vacancies in the next higher
\npromotional posts was violative of Articles 14 and 16 of the
\nConstitution. After  quoting with  approval the observations
\nof Chandrachud, J., and Krishna Iyer, J., in State of J. & K
\nv. Trilokinath\tKhosa (supra).\tBhagwati J., observed (at p.\n<\/p>\n
481):\n<\/p>\n
     “To  permit   discrimination   based   on\t educational
\n     attainments not  obliged by the nature of the duties of
\n     the higher\t post is  to stifle the social thrust of the
\n     equality clause.  A  rule\tof  promotion  which,  while
\n     conceding that non graduate Supervisors are also fit to
\n     be promoted  as Assistant\tEngineers, reserves a higher
\n     quota  of\t vacancies  for\t  promotion   for   graduate
\n     supervisors as  against non-graduate Supervisors, would
\n     clearly be calculated to destroy the guarantee of equal
\n     opportunity”.\n<\/p><\/blockquote>\n
After saying  so much  the Court,  however, upheld  the rule
\nwhich made  the differentiation\t between Graduate  and\tnon-
\nGraduate Supervisors  on the ground that the differentiation
\nhad not\t been made  for the  first time by the impugned rule
\nand graduate  Supervisors  had\talways\tbeen  treated  as  a
\ndistinct  and\tseparate  class\t  and  the  two\t were  never
\nintegrated into\t one class.  Since  the\t two  categories  of
\nSupervisors were  never fused  into one\t class, it was held,
\nthere was  no question of unconstitutional discrimination on
\nthe ground of differential treatment being given to them.\n<\/p>\n
     30. In  S. B. Patwardhan & Ors. v. State of Maharashtra
\n& Ors. the question concerned a formula of seniority. Direct
\nrecruits and  promotees, though\t drawn\tfrom  two  different
\nsources, constituted,  in that\tcase,  a  single  integrated
\ncadre. They  discharged identical  functions,  bore  similar
\nresponsibilities and  acquired an equal amount of experience
\nin their  respective assignments.  Yet, the formula provided
\nthat probationers recruited during any year shall in a bunch
\nbe treated  as senior  to promotees  confirmed in that year.
\nWhile the formula gave to the direct recruits the benefit of
\neven the  one year’s  period of\t training and another year’s
\nperiod of probation for the purposes of seniority, it denied
\nto  promotees\tthe  benefit  of  their\t long  and  valuable
\nexperience.  There   was  no  intelligible  ground  for\t the
\ndifferentiation, bearing  nexus with  efficiency  in  public
\nservice.\n<\/p>\n
174<\/span><\/p>\n
‘Confirmation was  one of  the inglorious  uncertainties  of
\ngovernment service  depending neither  on efficiency  of the
\nincumbent nor  on the availability of substantive vacancies,
\nand it\twas on confirmation that the promotees seniority was
\nmade to\t depend. The  formula was  struck down by the Court.
\nReliance was  placed on\t the decision  of the Court in A. K.
\nSubraman v.  Union of  India,<\/a> where  it had been held, while
\ninterpreting rules  relating to\t Central Engineering Service
\nClass that  though in  cases where recruitment was made from
\ndifferent sources  a quota  system could be validly applied,
\nthe quota  rule was  to be  enforced at\t the time of initial
\nrecruitment to\tthe post  of officiating  Executive Engineer
\nand not\t at the\t time of  their confirmation.  The Court had
\nfurther\t observed   that  there\t  was  a   well\t  recognised
\ndistinction between  promotion and confirmation and that the
\ntests to  be applied  for  the\tpurpose\t of  promotion\twere
\nentirely different  from those that had to be applied at the
\ntime of confirmation.\n<\/p>\n
     31. In  H. S.  Verma &  Ors. v.  Secretary, Ministry of
\nShipping &  Transport &\t Ors.<\/a>(2), the  facts  were  somewhat
\npeculiar. Certain  persons were\t directly recruited  to\t the
\nEngineering  Service   of  the\t Ministry  of  Shipping\t and
\nTransport (Roads  Wing) as a result of a written competitive
\nexamination.  Certain\tother  persons\twere  also  directly
\nrecruited but  by interview through the Union Public Service
\nCommission, although  such a  method of\t selection  was\t not
\ncontemplated  by  the  rules.  In  1966\t a  rule  was  added
\nproviding for  selection  by  interview\t through  the  Union
\nPublic Service\tCommission. The 1966 rule was held not to be
\nretrospective in some Writ Petitions filed in the Delhi High
\nCourt by  the persons  who had been recruited as a result of
\nwritten\t competitive   examination.  The  High\tCourt  while
\nholding that  the amendment  was not  retrospective did\t not
\nhold that  those appointed  prior to  1966 by  the interview
\nmethod were not regularly appointed. Instead, the High Court
\nheld that  they were  appointed\t and  promoted\tto  ex-cadre
\nposts. In  1973 a  notification was issued by the Government
\nto the\teffect that  the Officers appointed by the interview
\nmethod must be deemed to have been industed into the service
\nas temporary  officers in 1966. Later in 1976 the Government
\ndecided to  set up  two Services  to be\t called the  Central
\nEngineering  Service   (Roads).\t Group\t‘A’,  comprising  of
\nOfficers appointed  by the  method of  examination  and\t the
\nother the Central Engineering Pool, Group ‘A’, comprising of
\nofficers appointed  by the  method of interview. Officers of
\nboth the  services were\t eligible to  be promoted to certain
\nposts called “isolated posts”. Appointments to the ‘isolated
\nposts’ were  to be  made by  selection or  promotion, as the
\ncase may be, on the recommendation of a Departmental Pro-\n<\/p>\n
175<\/span><\/p>\n
motion Committee  from an  integrated list of officers to be
\ndrawn up  on the  basis of  the length\tof their  continuous
\nservice in  their respective  grades. The officers appointed
\nby the\tmethod of  interview assailed  the rules  contending
\nthat though  they were\tappointed to their posts long before
\nthe  officers\tappointed  by\tthe  method  of\t competitive
\nexamination, they  would rank  much below  the latter in the
\nlist  of   seniority  and   would  consequently\t  be  denied
\npromotional opportunities  to higher posts. Having regard to
\nthe very  complicated nature  of the  facts, the Court after
\ndiscussion  with  the  learned\tcounsel\t appearing  for\t the
\nvarious parties and the Government made an order, which they
\nthought was  best and  just in\tall the circumstances of the
\ncase. While issuing the directions certain observations were
\nmade. It was said (at p. 427):\n<\/p>\n
\t  “….We are  unable to suggest the contention that
\n     persons  holding\tsimilar\t posts\tand  having  similar
\n     responsibilities to  discharge can\t be classified\tinto
\n     different categories  for the  mere reason that some of
\n     them were\trecruited directly  by the  interview method
\n     and some  were recruited  directly on  the result\tof a
\n     competitive examination.  Were it\tpermissible to\tmake
\n     such classifications,  ingenuity may suggest the nature
\n     of curriculum  in\tdifferent  years  as  the  basis  of
\n     classification. If\t subjection to\tdifferent  kinds  of
\n     tests  as\t a   condition\t of   eligibility   produces
\n     qualitative  difference   in  the\tability\t of  persons
\n     recruited to  similar  posts,  it\tmay  perhaps  become
\n     necessary to  limit the  promotional opportunities,  in
\n     regard to\tthe relatively\thigher posts, to those whose
\n     abilities are  remarkably higher.\tBut, it\t is nobody’s
\n     case and  the Government has made no grievance that the
\n     petitioners who  were appointed by the interview method
\n     are in  any way  inferior\tin  ability,  efficiency  or
\n     educational qualifications\t to those who were appointed
\n     after a  written competitive examination. In the matter
\n     of experience  too,  the  petitioners  are\t in  no\t way
\n     inferior to the contesting respondents”.\n<\/p><\/blockquote>\n
The Court however, took care to add:\n<\/p>\n
\t  “Though classification  which proceeds  merely  on
\n     the basis\tthat certain  persons were  recruited  after
\n     going through  one test  and certain others after going
\n     through another  test would  be unscientific, it cannot
\n     be said on the facts of the instant case that there can
\n     be no  valid basis or justification for classifying the
\n     various  officers\tof  the\t Roads\tWing  into  separate
\n     categories. As we have stated earlier,
\n176<\/span>
\n     the appointments of some of the petitioners and some of
\n     the respondents  were made\t in violation  of the  rules
\n     which were\t in force  at the  relevant time.  It is  in
\n     respect of\t that class  of persons\t that the Delhi High
\n     Court was\tdriven to  hold that  they must be deemed to
\n     have been\tappointed to  ex-cadre posts…..  But,\t the
\n     fact remains  that persons\t who were appointed contrary
\n     to the rules but to ex-cadre posts were taken initially
\n     for purposes  of certain  projects\t to  which  we\thave
\n     already referred. Their precarious tenure was continued
\n     from  time\t  to  time   but  that\t will  not   furnish
\n     justification for\ttreating them on the same footing as
\n     others  whose   appointments  were\t  made\tstrictly  in
\n     accordance with  the rules\t and who  were appointed  to
\n     posts borne  on the  cadre of  the Central\t Engineering
\n     Service. A\t division of  these two\t classes of officers
\n     into separate categories will remove possible injustice
\n     to those  who were\t appointed to  cadre posts  in\tthat
\n     their promotional\topportunities will not be blocked or
\n     hindered by  ex-cadre officers  who were recruited on a
\n     large  scale  to  meet  an\t urgent\t necessity.  Such  a
\n     classification will  also minimise\t the injustice which
\n     would otherwise  have been\t caused to  those  who\twere
\n     appointed to ex-cadre posts”.<\/p><\/blockquote>\n
     We have  referred, without\t comment, to  a few  earlier
\ndecisions of  this Court  and  quoted  the  observations  of
\nlearned Judges therein. These decisions and the observations
\nextracted therefrom  illustrate and emphasise that there are
\nand there  can be  no absolutes\t when we  consider claims to
\njustice on complaints of inequality. The Marxian ultimate of
\na classless  society,  however\tlaudable  that\tmay  be,  is
\nevidently not  what is\tsought to be achieved by Articles 14
\nand 16 of the Constitution. The goal is a limited one. It is
\nequality among comparables. A necessary, but not necessarily
\ncynical, implication  of equality  among comparable  is\t the
\npermissibility of  reasonable classification,  having  nexus
\nwith the  object to be achieved. So, it was said that if two
\nservices started  and continued\t dissimilarly,\tthough\tthey
\napparently  discharged\t similar  duties,   they  were\t not
\ncomparable services  so as  to furnish a basis for the claim
\nto equality  (State of\tPunjab v.  Joginder Singh)<\/a>  (supra).
\nBut, if\t in the\t same service  there  were  two\t sources  of
\nrecruitment to the same posts, a classification based solely
\non source  of recruitment  was not  permissible (Roshan\t Lal
\nTandon v.  Union of  India, and\t Mervyn Coutinda  & Ors.<\/a>  v.
\nCollector of  Customs, Bombay & Ors.) (supra). This was also
\nthe principle  of the  decision in  S. B.  Patwardhan & Ors.
\netc. etc.  v. State  of Maharashtra & Ors. (supra). Even so,
\nChandrachud, J., Krishna Iyer,
\n177<\/span>
\nJ., and Bhagwati, J., had to recognise, even if reluctantly,
\nthat  even   among  the\t members  of  the  same\t service,  a
\nclassification\tbased  otherwise  than\ton  mere  source  of
\nrecruitment such  as educational  qualification was at times
\npermissible. But  necessary words  of caution against making
\n‘minute\t and  micro-cosmic’  classifications  were  uttered.
\n(State of  Jammu & Kashmir v. Trilokinath Khosa, (Supra) and
\nMohammad Shujat\t Ali &\tOrs.<\/a> etc.  v. Union  of India & Ors.
\netc. (supra).  Chandrachud, J.,\t however drew  the line when
\namong members  of the  same  service  a\t classification\t was
\nsought to  be made  between those  who had been recruited on
\nthe basis  of results of a competitive examination and those
\nwho had\t come in by the method of interview. But, here again
\nhe felt\t constrained to say that those who were appointed to
\nex-cadre posts\toutside\t the  rules  and  whose\t tenure\t was
\ntherefore precarious  could not\t claim to  be treated on the
\nsame  footing  as  those  who  were  appointed\tstrictly  in
\naccordance with the rules and to posts borne on the cadre of
\nthe service  (H. S.  Verma &  Anr. v. Secretary, Ministry of
\nShipping & Transport & Ors.)<\/a> (supra).\n<\/p>\n
     If we  now look  at the facts of the case before us, we
\nfind that  the service\tcomprising the\tTemporary  Assistant
\nOfficers and the Indian Railway Service of Engineers Class I
\nstarted separately  and never  became one.  The\t objects  of
\ntheir recruitment  were different  as explained earlier, the
\nmethods of  recruitment were  dissimilar and  the appointing
\nauthority was  not the\tsame. The training that was imparted
\nwas also  unlike. The very tenure of the Temporary Assistant
\nOfficers was  precarious and  their immediate aspiration was
\nonly to\t be absorbed  into the\tIndian\tRailway\t Service  of
\nEngineers class I. These distinctive features marked out the
\nTemporary Assistant  Officers  as  a  Class-apart  from\t the
\nIndian Railway\tService of  Engineers Class  I and therefore
\nthere was  no question\tof entitlement\tof equal rights with
\nthe latter.  Of course,\t once they  were absorbed  into\t the
\nIndian Railway\tService of  Engineers they would be entitled
\nnot to\tbe treated  differently thereafter.  Their seniority
\nwould  ordinarily   be\treckoned  from\tthe  date  of  their
\nabsorption into\t the Indian Railway Service of Engineers, as
\npromised in  their letters  of appointment.  No doubt  these
\nofficers merited  something more than the ‘long wait’ at the
\nportals of  the Indian\tRailway Service\t of  Engineers.\t The
\nRailway Board  however, appears\t to have  tried to  make the
\n‘long wait’  a little  less tedious by giving them weightage
\nof half\t of their  length of  service as Temporary Assistant
\nOfficers, subject to a maximum of five years. We wish to say
\nnothing\t about\t the  validity\t of  such  weightage  as  we
\nunderstand it is in question elsewhere.\n<\/p>\n
     Though we\tare denying  the claim of the petitioners to
\nequality because  of the  history, origin,  and structure of
\nthe Services and the
\n178<\/span>
\nexisting legal\tposition in relation thereto, we do not wish
\nto  be\t understood  as\t saying\t that  there  is  any  thing
\n‘doctrinaire’ in  the principles  of ‘equal  pay  for  equal
\nwork’ and  ‘equal status for equal pay and equal work’. They
\nare not\t goals to  be scoffed  at. It  may be  that  in\t the
\npresent societal context the goals appear to be distant. But
\nthey are goals worthy of attainment and let us hope, with no
\novertones of  cynicism, that these goals will be achieved in
\nthe not too distant future.\n<\/p>\n
     All the  Writ Petitions  and applications for the grant
\nof Special  Leave are  dismissed but without any order as to
\ncosts.\n<\/p>\n
S.R.\t\t\t\t\tPetitions dismissed.\n179<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Katyani Dayal And Ors vs Union Of India And Ors on 26 March, 1980 Equivalent citations: 1980 SCR (3) 139, 1980 SCC (3) 245 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: KATYANI DAYAL AND ORS. Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT26\/03\/1980 BENCH: REDDY, O. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-9292","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKatyani Dayal And Ors vs Union Of India And Ors on 26 March, 1980 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/katyani-dayal-and-ors-vs-union-of-india-and-ors-on-26-march-1980\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Katyani Dayal And Ors vs Union Of India And Ors on 26 March, 1980 - 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