P.D.
Aggarwal & Ors Vs. State of U.P. & Ors [1987] INSC 165 (8 June 1987)
RAY,
B.C. (J) RAY, B.C. (J) SEN, A.P. (J) CITATION: 1987 AIR 1676 1987 SCR (3) 427
1987 SCC (3) 622 JT 1987 (2) 606 1987 SCALE (1)1283
ACT:
Constitution
of India--Arts. 14 and 16--Validity of rr. 3(c), 5, 6 and 23 of the U.P.
Service of Engineers (Buildings and Roads Branch), 1936 as amended by the
Amendment Rules of 1969 and 1971--Assistant Engineers substantively appointed
to temporary posts prior to the amendment of the Rules are entitled to have
their seniority reckoned from the date of their appointment irrespective of the
posts, held by them remaining temporary--Rights vested in them under the 1936
Rules cannot be taken away by giving retrospective effect to the Amendment
Rules of 1969 and 1971.
HEADNOTE:
Rule
3(c) of the U.P. Service of Engineers (Buildings and Roads Branch) Class II
Rules, 1936 defined 'direct recruitment' or 'direct appointment' as recruitment
or appointment of Assistant Engineers in the manner prescribed in r. 5(i), (ii)
and (iii) thereof, after consultation with the Public Service Commission. Rule
6 empowered the Government to decide in each case the source from which a
vacancy shall be filled up provided that 25% of the vacancies were reserved for
promotion of persons selected from subordinate services. Rule 3(b) thereof
defined a 'member of the service' as a government servant appointed in a
substantive capacity. Rule 23 stipulated that seniority in the service shall be
determined by the date of order of appointment to the service.
By
an Office Memorandum dated December 7, 1961, the State Government laid down
that direct recruitment to the posts of Assistant Engineers would be made on
the results of a competitive examination conducted by the Commission, the
successful candidates being appointed in the order of merit against vacant
permanent posts and, those following, against temporary posts. It was further
laid down that while 50% of the permanent vacancies in the Department would be
filled by direct recruitment, 25% of them would be filled by selection from
amongst the temporary Assistant Engineers recruited through the Commission and
for this purpose the temporary Assistant Engineers already working in the
Department who were appointed on the advice of the Commission prior to the
introduction of the new scheme and who 428 possessed the requisite
qualifications were given relaxation in the age limit upto 40 years for
appearing in the competitive examinations to be conducted by the Commission. As
a measure of further concession to the existing temporary Assistant Engineers,
it was provided that initially 50% of the permanent vacancies would be filled
up by selection of temporary Assistant Engineers and only 25% thereof would be
filled up by direct recruitment. The competitive examinations were held
commencing from the year 1962.
On
July 28, 1969, the State Government brought into force the U.P. Service of
Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, 1969 with
retrospective effect from March, 1962 amending inter alia rr: 3(b), 3(c), 5 and
6 of the 1936 Rules to bring them in line with the scheme enunciated in the
Office Memorandum dated December 7, 1961.
On
November 26, 1971, r. 23 was amended by the U.P. Service of Engineers
(Buildings and Roads Branch) Class II (Amendment) Rules, 1971 as under:
"Except
as provided for hereunder seniority in the service will be determined by the
date of order of appointment in a substantive vacancy ...." The
competitive examinations for direct recruitment of Assistant Engineers in
accordance with the new Scheme were held upto the year 1971 and were
discontinued by the executive instruction contained in Office Memorandum dated
June 23, 1972 as it was felt that the system had done more harm than good to
the service.
The
respondents, who were directly recruited Assistant Engineers appointed, after
consultation with the Commission, to temporary posts in the cadre upto 1961
challenged the seniority list prepared in 1980 in terms of the Office Memorandum
dated December 7, 1961 and the Amendment Rules, 1969 and 1971 as violative of
Arts. 14 and 16 of the Constitution and prayed for determination of their
seniority on the basis of the length of their continuous service in terms of
the decision of this Court in Baleshwar Dass & Ors. v. State of U.P. &
Ors., [1981] 1 S.C.R. 449. The High Court allowed the petitions and directed
preparation of a fresh seniority list by treating the appointments of
respondents as substantive appointments to the cadre. The appellants in these
appeals were those temporary Assistant Engineers working in the Department who
were selected for appointment to permanent vacancies 429 on the results of the
competitive examinations held by the Commission.
Dismissing
the appeal, this Court,
HELD:
There is no controversy that all those Assistant Engineers who were
substantively appointed to temporary posts in consultation with the Commission
and had been rendering their service for long years till 1961 have become
members of the service in accordance with the provisions of the Rules.
Therefore, on the basis of r. 23 as it was before the amendment made in 1971,
these Assistant Engineers are entitled to have their seniority reckoned from
the date of their being members of the service, no matter whether they are
holding posts which remain as temporary for years together. The direct recruits
appointed on the basis of the examination held under the amended Rules cannot
encroach upon their rights in the matter of determination of their seniority.
[442E-H] 2. This Court, in Baleshwar Dass & Ors. v. State of U. P. &
Ors., [1981] 1 S.C.R. 449, while holding that Office Memorandum dated December
7, 1961 was not arbitrary in so far as it fixed the proportion of permanent
vacancies to be filled from various sources, observed that this scheme of 1961
could not stand in isolation and had to be read as subordinate to the 1936
Rules. Hence, the aforesaid Office Memorandum does not affect the petitioners
who have become members of the service and are entitled to have their seniority
reckoned from the date of their being members of the service in accordance with
r. 23 of the 1936 Rules. [440G-H; 441A-B]
3.
The effect of the amendments made in rr. 3(b), 3(c), 5 and 6 is that Assistant
Engineers who have become members of the Service being appointed substantively
in temporary posts will no longer be members of the service and will have to
wait till they are selected and appointed as Assistant Engineers under r.
5(a)(ii) against quota fixed by r. 6 for this purpose. This creates serious
prejudice to them and it also creates uncertainty as to when they will be
selected and appointed against the quota set up for such selection under r.
5(a)(ii). The amended r. 23 lays down that seniority will be determined from the
date of order of appointment in substantive vacancy. These provisions have been
made retrospectively effective from March 1, 1962 to the existing officers
i.e., the respondents appointed substantively against temporary vacancies. Such
retrospective amendments cannot take away the vested rights. [444H; A-B] 430
T.R. Kapur v. State of Haryana & Ors., JT (1986) S.C. 1092; E.P. Royappa v.
State of Tamil Nadu, A.I.R. 1974 S.C. 555 and Maneka Gandhi v. Union of India,
A.I.R. 1978 S.C. 597; relied on.
4.
The Assistant Engineers who have already become members of the service on being
appointed substantively against temporary posts have already acquired the
benefit of 1936 Rules for having their seniority computed from the date of
their becoming members of the service. The Amendment Rules, 1969 and 1971 take
away this right of these temporary Assistant Engineers by expressly providing
that those Assistant Engineers who are selected and appointed in permanent
vacancies against 50% quota provided by amended r. 6 will only be considered
for the purpose of computation of seniority from the date of their appointment
against permanent vacancies. Therefore, the temporary Assistant Engineers are
not only deprived of their seniority but they are driven to a very peculiar position
inasmuch as they have to wait until they are selected and appointed against
permanent vacancies in the quota set up for this purpose by the amended r. 6.
There are about 200 Assistant Engineers who have been appointed substantively
by the Government with the approval of the Public Service Commission before the
enforcement of 1969 Rules. The direct recruits appointed on the basis of the
examination against permanent vacancies will get precedence over Assistant
Engineers appointed in the matter of determination of their seniority in the
cadre of Assistant Engineers on the basis of changed Rules, particularly
amended r. 23, which takes into account only appointments in substantive
vacancies. The 1969 and 1971 Amendments in effect take away from the officers
appointed to the temporary posts after selection by the Public Service
Commission, the substantive character of their appointment.
These
amendments are not only disadvantageous to the future recruits against
temporary vacancies but they were made applicable retrospectively from March 1,
1962 even to existing officers recruited against temporary vacancies through
Public Service Commission. The Government has power to make retrospective
amendments to the Rules but if the Rules purport to take away the vested rights
and are arbitrary and not reasonable then such retrospective amendments are
subject to judicial scrutiny. [446B-H; 447A-C] S.B. Patwardhan v. State of
Maharashtra, [1977] 3 S.C.R.
775,
referred to.
5.
The Office Memorandum dated December 7, 1961 which purports to amend the U.P.
Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 cannot
override, amend or supersede 431 statutory rules as it is nothing but an
administrative order or instruction. The temporary Assistant Engineers who have
become members of the service after being selected by the Public Service
Commission in accordance with the service rules are entitled to have their
seniority reckoned in accordance with the provisions of r. 23 as it was then,
from the date of their becoming members of the service, and this cannot be
taken away by giving retrospective effect to the Amendment Rules of 1969 and
1971 as it is arbitrary, irrational and not reasonable. [448B-D] Sant Ram
Sharma v. State of Rajasthan & Anr., [1968] 1 S.C.R. 111, referred to.
6.
The Amendment Rules of 1969 read with the Amendment Rules of 1971 adversely
affect the rights of the Assistant Engineers appointed to substantive posts
prior to the introduction of these amended Rules and create fetters for the long
years of service being ever considered for reckoning of seniority in the cadre
of Assistant Engineers. For promotion from Assistant Engineer to the post of
Executive Engineer seniority-cum-merit is the criterion. These temporary Assistant
Engineers, unless they are selected to the 50% quota in permanent vacancies
reserved for promotion from the Assistant Engineers appointed to temporary
posts, will never have their service reckoned for determination of seniority in
the cadre. The respondents were appointed long before the appointment of
appellants as Assistant Engineers in permanent vacancies. The appointment of
respondents has been made in consultation with the Public Service Commission
and according to the decision in Baleshwar Dass's case the respondent having
become members of the Service they are deemed to be appointed substantively in
temporary posts.
Therefore,
the amended Rules, more particularly rr. 3(c), 5 and 6 of 1969 Rules as well as
r. 23 of 1971 amended Rules are wholly arbitrary and discriminatory and are
violative of Arts. 14 and 16 of the Constitution. [448E; F; 449A-B] Mohammad
Shujat Ali & Ors. v. Union of India & Ors., [1975] 1 S.C.R. 449,
referred to.
7.
The argument that the Amendment Rules were framed to attract meritorious and
talented engineers in the U.P. Service of Engineers (Buildings and Roads
Branch) as there were very little prospects of promotion for such Assistant
Engineers to be promoted to the higher posts owing to the large number of
Assistant Engineers appointed to temporary posts cannot be sustained, firstly,
because it 432 seriously prejudices the rights of the Assistant Engineers
appointed substantively to the temporary posts and working as Assistant
Engineers for a number of years and secondly, because this process of direct
recruitment against permanent vacancies was discontinued after 1971 as it
worked injustice and had led to patent discrimination. [449C-F]
8.
When recruitments to a particular service are made from more than one source,
quota and rota may be introduced consistent with the equality clause envisaged
in Arts. 14 and 16 of the Constitution. In the instant case all the Assistant
Engineers whether appointed in a temporary post of the cadre or in the
permanent post of the cadre are recruited directly from graduates in Civil
Engineering. The only difference is that due to exigencies of service a large
number of Assistant Engineers were recruited against temporary vacancies. Under
the 1936 Rules the Assistant Engineers appointed against temporary vacancies became
members of the Service under the then r. 3 and they were eligible for their
seniority being reckoned from the date of their becoming members of the
service. The impugned Rules of 1969 and 1971 purport to take away or to cruelly
cut off the long years of valuable service rendered by these Assistant
Engineers only on the pretext of appointment against permanent posts. These
temporary Assistant Engineers after introduction of the amended Rules have been
relegated to a very uncertain position as to when they will be selected against
permanent vacancies by the Commission in the 50% quota provided under r. 6 of
the amended Rules to become members of service and to have their seniority
reckoned. The fate of those Assist- ant Engineers who are selected and appointed
in temporary posts on the basis of the results of the examination is also very
uncertain inasmuch as they will be considered for selection by the Commission
against the quota for temporary Assistant Engineers after the Assistant
Engineers appointed before them are all considered for selection in the said
quota set up for the temporary Assistant Engineers in permanent vacancies even
though they have been appointed through the same process of examination.
Considering all these circumstances we are constrained to hold that the
impugned rr. 3(c), 5 and 6 of the 1969 Rules and r. 23 of the 1971 Rules are
arbitrary, irrational and unreasonable infringing Arts. 14 and 16 of the
Constitution. [451G-H; 452A-F] Narender Chadha v. Union of India & Ors., [1986]
1 S.C.J. 307, referred to. State of Jammu & Kashmir v. Triloki Nath Khosa,
[1974] 1 S.C.R. 771, distinguished.
433
9.
Purely ad hoc employees or employees on purely officiating basis or employees
purely for a temporary period in the cadre of Assistant Engineer, being not
members of the service in accordance with the service rules, are not entitled
to have the benefit of their such adventitious, purely ad hoc and temporary
service being reckoned for determination of seniority unless and until they
become members of the service in accordance with the provisions of service
rules. Only those ad hoc appointees whose services have been regularised by the
regularisation rules framed under proviso to Art. 309 of the Constitution after
being duly selected by the Selection Committee and becoming members of the
Service, will be entitled to seniority only from the date of order of
appointment after selection in accordance with those regulations as provided in
r. 7 of the Regulations. [453H, 454A-C] Ashok Gulati and Ors. v. D.S. Jain
& Ors., A.I.R. 1987 S.C. 424 and State of Gujarat V.C.G. Desai, [1974] 2 S
.C .R. 255, referred to.
Civil
Appellate Jurisdiction: Civil Appeal Nos. 622625 of 1982.
From
the Judgment and Order dated 14.1.82 of the Allaha- bad High Court in W.P. Nos.
3387/79, 3327, 2829/80 and 747/81.
Shobha
Dixit, S. Markandeya, M.N. Shroff, Anil Kumar Gupta. A.K. Sanghi, V.J. Francis,
P.D. Sharma, A.K. Panda, Sunil Kumar Jain and R.B. Mehrotra for the appearing
par- ties.
The
Judgment of the Court was delivered by B.C. RAY, J. These appeals by special
leave are against the common judgment and order dated 14.1.1982 quashing the
seniority list in the cadre of Assistant Engineers in the United Provinces
(Buildings & Roads Branch) Class II pre- pared on 29.7.1980 and 18.12.1980
with 19.12.1980. A writ of mandamus was also issued to the State Government for
preparation of fresh seniority list in respect of Assistant Engineers in the
Civil Engineering Wing and Electrical and Mechanical Wing respectively in
accordance with the guide- lines mentioned in the said judgment. The facts
giving rise to these writ petitions are in brief as follows:- Previously Public
Health Department as well as the Irrigation Department of the Government of
Uttar Pradesh were integrated into Public Works Department comprising both
these two branches. In 434 1922 Irrigation branch was separated into a
different independent department. Similarly, in 1927 Public Health Department
was separated. In 1936 U.P. Service of Engineers Class II Rules (Buildings and
Roads Branch) pertaining to P.W.D. were framed in exercise of powers conferred
under the Government of India Act. Identical rules also governed the Irrigation
Department. Before entering into the controversy that has been raised in the
instant appeal it is appropriate to refer to the relevant provisions of the
said rules. Rule 3(b) defines 'Member of the Service' as a Government servant
appointed in substantive capacity, under the provisions of these rules or of
rules in force previous to the introduction in the cadres of the service.
Clause (c) defines 'Direct recruitment' or 'Direct appointment' as recruitment
or appointment in the manner prescribed in rule 5(i), (ii) and (iii) of these
rules. In Rule 4 which is captioned as `Strength of Cadre' it is mentioned in
clause (ii) of the said rule that the Government may increase the cadre by
creating permanent or temporary posts from time to time as may be found
necessary. Rule 5 lays down five sources of recruitment:
(i)
by direct appointment from amongst engineer students who have passed out of
Thomson Civil Engineering College, Roorkee, and who have completed a course of
training in the Buildings and Roads Branch as engineer students after
consulting the Public Service Commission;
(ii)
by the appointment after (sic) advertisement and after consulting the Public
Service Commission;
(iii)
by the appointment of officers in the temporary service of the United Provinces
Public Works Department, Buildings and Roads Branch, after consulting the
Public Service Commission; provided that it will not be necessary to consult
the Commission in the case of appointment of a temporary officer to a permanent
vacancy if he has already been appointed to a temporary post in the cadre of
service after consultation with the Commission.
(iv)
by promotion of members of the United Provinces Subordinate Engineering Service
in the Public Works Department, Buildings and Roads Branch, who have shown
exceptional merits;
(v)
by promotion of computers in the Public Works Department, Buildings and Roads
Branch, who have shown exceptional merit and who are technically qualified.
It
has been specifically provided in Rule 6 that the Government will decide in
each 'case the source from which a vacancy shall be filled up provided that 25%
of the vacancies shall be reserved for selected qualified members of the
Subordinate Engineering Service and Computers. It thus provides that barring
25% of the vacancies to be filled by promotion from Engineering Subordinate
Services and Computers, the remaining 75% of the vacancies are to be filled up
by direct recruitment as provided in sub-clause (ii) and (iii) of Rule 5. Rule
17 which is termed as 'Probation' specifically provides that all persons
appointed to the service, who are not already in the permanent employ of the
Buildings and Roads Branch of the United Provinces Government, shall be placed
on probation for four years, provided that such of them as have undergone
training as engineer students, or have served as temporary engineers in the
Buildings .and Roads Branch of the United Provinces Government, may be
permitted to count the period of such training and service, respectively
towards this period of probation.
Rule
19 deals with confirmation of probationers. It mentions that a probationer
shall be confirmed in his appointment after he has completed the prescribed
period of probation, has passed all the tests prescribed in the rules and the
Government is satisfied that he is fit for confirmation. It also provides
therein that all confirmations under this rule shall be notified in the United
Provinces Gazette.
Rule
23 states that seniority in the service shall be determined according to the
date of order of appointment to it provided that if the order of appointment of
two or more candidates bears the same date, their seniority inter-se shall be
determined according to the order in which their appointment has been notified.
On
December 7, 1961 an office memorandum No. 4162 EBR XXIII-PWD-90 EBR 1954 was
issued by the Government laying down the principles for recruitment to the
permanent and temporary posts. It is stated therein that in future direct
recruitment to both permanent and temporary vacancies of Assistant Engineers
(Civil, Electrical and Mechanical) in the Public Works, Irrigation and Local
Self Government Engineering Departments, will be made on the results of
competitive examination to be conducted by the Public Service Commission.
Candidates possessing technical and other qualifications prescribed in the
rules for the Uttar Pradesh Service of Engineers in the Departments concerned
will be eligible to appear at the examination for that particular service. It
has been further provided therein that successful candidates in order of merit
will be appointed on probation against vacant permanent posts and those
following will be appointed against temporary posts. It also lays down the
manner of filling up the vacancies in the permanent cadre of the service of
Assistant Engineers in the Irrigation Department as well as in the PWD
Department. In PWD Department 50% of the vacancies in the permanent cadre will
be filled up through competitive examination, 25% by promotion from amongst
overseers and computers and 25% by selection from amongst temporary Assistant
Engineers recruited through the Commission. It has been further provided that
as a measure of concession to the existing temporary Assistant Engineers who
were recruited as temporary Assistant Engineers on the advice of the Public
Service Commission prior to the introduction of this scheme, the distribution
of vacancies in the permanent cadre of Assistant Engineers will be 25% by
direct recruitment through competitive examination; 25% by promotion from
subordinate service and 50% by selection from amongst existing temporary
Assistant Engineers. It has also been provided that the Government may in
consultation with the Public Service Commission increase or decrease the
percentage fixed for recruitment by selection and competitive examination in
any particular year. In para 7 of the said memorandum it has been provided that
temporary and officiating Assistant Engineers possessing the requisite
technical qualifications will be eligible to appear in the competitive
examinations and the maximum age limit in the case of those working in the
department with the approval of the Commission, or after having been recruited
by the Com- mission will be 40 years.
Thereafter
on 28.7.1969 an amendment to the Rule was made by the Government in exercise of
power under proviso to Article 309 of the Constitution. This is known as the
United Provinces Service of Engineers (Buildings and Roads Branch), Class II
(Amendment) Rules, 1969. These rules shall be deemed to have been in force
since March, 1962. The relevant provisions of these Rules are quoted here in below:-
Rule 3: In these rules unless there is anything repugnant in the subject or
context:-
(a)
The 'Service' means the U.P. Service of Engineers (Buildings and Roads Branch),
Class II,
(b)
'Member of the Service' means a government servant appointed in a substantive
capacity, under the provisions of these rules or of rules in force previous to
the introduction of these rules to a post in the cadre of the service.
(c)
'Direct recruitment' or 'Direct appointment' means recruitment or appointment
in the manner prescribed in rule (5)(a) (i) and 5(b)(1);
(d)
'Commission' means the Uttar Pradesh Public Service Commission;
(e)
'Department' means the Public Works Department, Uttar Pradesh;
(f)
'Governor' means the Governor of Uttar Pradesh.
(g)
'Secretary' means the Secretary to Government Public Works Department, Uttar
Pradesh;
(h)
'Chief Engineer' means the Chief Engineer, Public Works Department, Uttar
Pradesh.
(i)
'Period of recruitment' means the period upto the end of December in the
calendar year succeeding year in which the recruitment or selection is made;
(j)
'Citizen of India' means a person who is or is seemed to be citizen of India
under Part II of the Constitution of India;
(k)
'Government means the Government of Uttar Pradesh.
Rule
5: Source of recruitment:- Recruitment to the post of Assistant Engineer shall
be made from the following sources- (a) in permanent vacancies-
(i)
by direct recruitment on the result of a competitive examination conducted by
the Commission;
438
(ii) by selection from amongst the Officers appointed as Assistant Engineer by
direct recruitment through the Commission and working in temporary or
officiating vacancies in the department;
(iii)
by promotion of members of the Public Works Department, Subordinate Engineering
Service and the Public Works Department 'Computers' Service.
(b)
in officiating or temporary vacancies—
(i)
by direct recruitment on the result of a competitive examination conducted by
the Commission;
(ii)
by promotion of members of the Public Works Department, Subordinate Engineering
Service, and Public Works Department Computers Service.
Rule
6: Number to be recruited from each source--The Governor shall decide the
number of appointments to be made at each selection in each kind of post from
the sources specified in rule 5:
Provided
that recruitment in substantive vacancies occurring during a period of
recruitment in the post of Assistant Engineer, shall, so far as may be
possible, be made from the source mentioned in rule 5(a) in the following
proportion:- (a) Fifty per cent of the vacancies shall be filled by direct
recruitment on the results for a competitive examination under rule 5(a)(i);
(b)
Twenty five per cent of the vacancies shall be filled from the source specified
in rule 5(a)(ii).
(c)
Twenty-five per cent of the vacancies shall be filled from the source specified
in rule 5(a)(iii) which shall be shared by members of the Public Works
Department Subordinate Engineering Service and the Public Works Department
Computers' Service in approximate proportion of permanent strength of their
respective cadres at the time of selection:
Provided
further that with a view to giving facility to temporary Assistant Engineers
recruited in the Department in consultation with the Commission up to the date
Commencement of the first competitive examination in accordance with these
rules, the proportion of vacancies to be filled from the three sources
mentioned in the first proviso shall be 25 per cent, 50 per cent and 25 per
cent respectively subject to review at the discretion of the Government in
consultation with the Commission.
Explanation--The
vacancies from the source mentioned in rule 5(a)(ii) will, until further
orders, be filled from amongst those temporary Assistant Engineers only who
were recruited in the Department in consultation with the Commission and were
working in this capacity on the date of commencement of first competitive
examination:
Provided
also that recruitment to temporary or officiating vacancies in the posts of
Assistant Engineers by promotion from the source mentioned in rule 5(b)(ii)
shall be made up to 25 per cent of the vacancies, occurring during any one
period of recruitment in the same proportion as in clause (c) of the first proviso
and the remaining vacancies shall be filled by direct recruitment under rule
5(b)(i).
NOTE--The
distribution of vacancies in the permanent cadre in the above manner will be
subject to the condition that the Governor, in consultation with the Commission
may, for special reasons, increase or decrease the percentage fixed for
recruitment by selection and competitive examination in any particular period
of recruitment.
On
November 26, 1971 a further amendment to the U.P. Service of Engineers
(Buildings and Roads Branch), Class II Rules has been brought in and these
rules are called U.P.
Service
of Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, 1971.
Rule 23 which deals with seniority has been substituted. The relevant portion
of Rule 23 is quoted hereunder:- "Except as provided for hereunder
seniority in the service will be determined by the date of order of appointment
in a substantive vacancy .................................
On
the basis of these amended rules of 1969 and 1971 examinations were held and
the successful candidates in the said examinations were appointed to the
permanent posts and they were placed on probation. These appointees were called
direct recruits in short 'D' category. The petitioner Nos. 1, 2 and 4 who are
appellants here in these appeals are those direct recruits. The appellant Nos.
1 and 2 who were working in the PWD as temporary Assistant Engineers after
selection by the Commission were successful in 1962 competition for appointment
against permanent posts. The Appellant No. 3 who was also working as temporary
Assistant Engineer in the PWD after selection by the Public Service Commission
in 1962 also competed in the examination held in 1964 for appointment against a
permanent post. The appellant No. 4 who was working in the Irrigation
Department after selection by the Commission in 1962 was successful for
appointment against one of the permanent posts in PWD through 1964 competitive
examination. It may be mentioned in this connection that the first competitive
examination was held in 1962 on the basis of the memorandum dated December 7,
1961. The next examination was held in 1964. Similar examinations were held
thereafter till 1971 in accordance with the amended Rules. The Shukla Committee
in para 36 of its report ob- served that "the System had done more harm
than good to the Service" and ultimately recommended that in future such
direct recruitment for permanent posts should be discontinued. No examinations
were held in 1963. After 1971 the recruitment by this method was discontinued
by executive instructions issued in 1972 vide Office Memorandum dated 23.6.1972
(Annexure C2 to the counter affidavit of S.C.
Gupta
dated 23.1.81 in Writ Petition No. 3327 of 1980 Syed Masood Tagi Zaidi v. State
of U.P. ) This was followed by another order dated 8.6. 1973 (Annexure C-3
ibid) stopping direct promotion against permanent vacancies. These decisions
were taken on the basis of the recommendations of Shukla Committee's Report.
The
respondents are the directly recruited Assistant Civil Engineers in the
Buildings and Roads Branch pursuant to the provisions of Rule 5(a)(ii) in the
temporary posts of the cadre upto 1961 after consultation with the Public
Service Commission. These temporary Assistant Engineers who are working continuously
since the date of their appointment in the cadre of Assistant Engineers have
questioned the seniority list of Assistant Engineers made by the Government in
1980 pursuant to the Office Memorandum dated December 7, 1961 and U.P.
Engineering Service (Amendment) Rules of 1969 and 1971 on the grounds that they
are arbitrary and discriminatory being violative of Articles 14 and 16 of the
Constitution. These amended rules have been challenged further on the ground
that these 441 rules adversely affect their service conditions and as such
prayed for quashing of the seniority list and for determination of their
seniority on the basis of the decision rendered by this Court in Baleshwar Dass
& Ors. v. State of U.
P.
& Ors., [1981] 1 SCR 449 on the basis of the length of their continuous
service since the date of their becoming member of the service in accordance
with the provisions of the 1936 rules. The High Court of Allahabad allowed
these Writ Petitions and quashed the 1980 seniority list directing to prepare a
seniority list after taking the appointments of officers to the service after
selection by Public Service Commission to be substantive appointments to the
cadre.
Against
this judgment and order the above appeals on special leave have been preferred
to this Court. The only question that falls for consideration is the
determination of seniority of Assistant Engineers in the cadre of the service
within the meaning of Rule 3(b) of U.P. Service of Engineers (Buildings and
Roads Branch) Class II (Amendment) Rules. It appears that a similar question
about the yard- stick for determination of seniority between the Assistant
Engineers appointed substantively to temporary posts of the cadre and those
Assistant Engineers appointed against the permanent posts on probation and
confirmed in the said post, came up for consideration before this Court in
Civil Appeal No. 1717 of 1981. In that appeal we have already considered this
aspect of the case and relying on the decision in Baleshwar Dass & Ors. v.
State of U.P & Ors. and N.K. Chauhan & Ors. v. State of Gujarat &
Ors. etc., [1977] 1 SCR 1037 we have held that since the cadre of the service
of engineers consists of both temporary and permanent posts and as such there
can be substantive appointments against temporary posts of the cadre in
accordance with the provisions of the Service Rules. When a temporary Assistant
Engineer is selected and appointed by the Government with the approval of the
Public Service Commission after fulfillment of all the tests presented in the
said rules, he shall be deemed to be member of the service and as such the
entire length of service from the date of his becoming member of the service
has to be reckoned in computing the seniority of the Assist- ant Engineers
appointed substantively to temporary posts in the service in accordance with
the provisions of Rule 23 as it was prior to its amendment by 1971 Rules. We
have also held that on the plea of not being confirmed, the long years of
service rendered by an Assistant Engineer though appointed to a temporary post
substantively cannot be arbitrarily cut off and excluded in determining
seniority.
442
Before proceeding to consider the merits of the controversy raised in this
appeal it is pertinent to deal with the preliminary objections raised on behalf
of the appellants that the validity of rules of 1969 and 197 1 was not challenged
by T category officers or by the ad hoc officers at any time prior to the
filing of the present writ petitions .out of which the instant appeals on
special leave have arisen and as such the writ petitions should be dismissed on
the ground of undue delay and laches. This objection was elaborately dealt with
by the High Court in its judgment' and it was held that there was no such undue
delay and laches which can be considered to be a bar for considering the writ
petitions. It appears that the seniority list of 1971 that was prepared
following 1969 and 1971 rules was challenged by some 'D' category officers in
Civil Writ Petition No. 3734 of 1969 (V. C. Aggarwal v. State of U.P. &
Ors.). That petition was allowed and the seniority list of 1971 was quashed.
The Government was directed to prepare a fresh seniority list in accordance
with law after adjusting the recruitment for the period 1962 to 1966 in
accordance with the quota rule. Against that judgment two special appeals were
filed being Nos. 634 and 629 of 1972. These appeals were allowed in part.
Against that judgment the Government alone came to this Court in SLP(C) No. 951
of 1975. This special leave petition was dismissed on 8.9.
1975.
Thereafter the impugned list was published in 1980 and it was supplemented on
the 18th and 19th December, 1980. In these circumstances we are unable to hold
that there has been undue delay and laches on the part of temporary Assist- ant
Engineers to challenge the aforesaid amended rules and as such there is no
merit in this contention.
In
the instant appeal there is no controversy that all the temporary Assistant
Engineers who were appointed in consultation with the Public Service Commission
by the Government and bad been rendering their services for long years since
1956 till 1961 when the said notification has been made by the Government have
become members of the service in accordance with the provisions of the rules.
Therefore
on the basis of the provisions of rule 23 as it was before the amendment made
in 197 1 these temporary Assistant Engineers are legally entitled to have their
seniority reckoned from the date of their being member of the service no matter
whether they are holding posts which remain as temporary for years together. It
is quite clear that there are about 200 Assistant Engineers who have been
appointed substantively by the Government with the approval of the Public
Service Commission and as such the direct recruits appointed on the basis of
the examination held under the 1969 rules cannot in any manner whatsoever encroach
upon the rights of these substantively appointed Assistant Engineers 443 to
temporary posts in the matter of determination of their seniority in the said
cadre of Assistant Engineers.
The
Office Memorandum dated December 7, 1961 introduces quotas for filling up
vacancies in the cadre of Assistant Engineers in the Public Works Department as
well as Irrigation and Local Self Government Engineering Departments by
providing direct recruitment through competitive examination to both permanent
and temporary vacancies of Assistant Engineers (Civil, Electrical and
Mechanical). It has been provided therein that the quota of 50% of the
vacancies in the cadre of Assistant Engineers in a year will be filled by
direct recruits through competitive examination as well as it provides 25% of
the permanent posts to be filled up by selection from amongst temporary
Assistant Engineers recruited through the Commission. As a concession however,
it has provided that the quota of direct recruits through competitive
examination will be 25% instead of 50% as there are large number of temporary
Assistant Engineers from whom the selection can be made to the vacancies in the
permanent posts of Assistant Engineers by selection. This memorandum has
subsequently been incorporated in the amended rules of U.P. Service of
Engineers 1969. In Rule 5 of the said Rules provision has been made for direct
recruitment both in permanent vacancies as well as in officiating or temporary
vacancies on the basis of competitive examination conducted by the Public
Service Commission and the criteria laid down is that those who are more
meritorious judged by the result of the examination and occupy higher place
will be recruited to the permanent vacancies whereas others less meritorious
judged by their performance in the competitive examination will be recruited to
the post of officiating or temporary vacancies of Assistant Engineers. It has
also been provided therein that the temporary Assistant Engineers already
recruited in the department in consultation with the Commission will be
permitted to compete in the examination and if they can do well in the
competitive examination then they may be appointed in the permanent posts of
Assistant Engineers. This rule if considered properly will clearly show that
direct recruits against permanent vacancies on the basis of the competitive
examination will score a march over the Assistant Engineers who have been
appointed substantively in temporary posts of the cadre and have become members
of the service. They will be deprived of having their services reckoned from
the date of their substantive appointment to temporary posts for the purpose of
determination of seniority. In accordance with the provisions of Rule 23 of the
amended rules of 1971 which has been substituted for the old rules of 1936
seniority in the service has to be deter- mined by the date 444 of order of
appointment in a substantive vacancy. As a result this rule expressly debars
Assistant Engineers who have been appointed long before the appointment of the
direct recruits under the amended rules of 1969 to have their long years of
service as Assistant Engineers after being appointed substantively and after
being members of the service fulfilling all the tests prescribed within the
meaning of rule 3 of the rules of 1936 and also under rule 3(b) as amended by
the 1969 amendment to be left out in fixation of seniority. In other words
these temporary Assistant Engineers will ever remain temporary though they have
been rendering identical service for long years and having same educational
qualification and long experience in the service.
This
memorandum dated 7.12.1961 was considered in Baleshwar Dass's case by this
Court and it was held that this G.O. was not arbitrary insofar as it fixes the
proportion of permanent vacancies to be filled from various sources, and it has
statutory force being under Rule 6. It has also been observed that:
"The
office memorandum makes it clear that direct recruitments will be made to both
permanent and temporary vacancies of Assistant Engineers. But this scheme of
1961 cannot stand in isolation and has to be read as subordinate to the 1936
Rules. After all, the 196 1 Memorandum cannot override the Rules which are
valid under Article 3 13, and so must be treated as filling the gaps, not
flouting the provisions." Hence the said O.M. does not affect the
petitioners who have become members of the Service and are entitled to have
their seniority reckoned from the date of their being members of the Service
according to Rule 23 of the 1936 Rules. The 1969 Rules and 197 1 Rules have
however, affected the rights of the respondents who have become members of the
Service being substantively appointed in temporary posts as Assistant Engineers
inasmuch as there has been an amendment effected in Rule 3(b) by providing that
a member of the Service meant a Government servant appointed in a substantive
capacity to a post in the cadre of the Service. Rule 3(c) also amends the
earlier provisions by meaning direct recruitment as in the manner prescribed in
Rule 5(a)(i) and 5(b)(i). Similar amendments have been made in Rule 5 and 6.
The effect of these amendments is that Assistant Engineers who have become
members of the Service being appointed substantively in temporary posts will no
longer be members of the service and will have to wait till they are selected
and appointed as Assistant 445 Engineers under Rule 5(a)(ii) against quota
fixed by Rule 6 for this purpose. This creates serious prejudice to them and it
also creates uncertainty as to when they will be selected and appointed against
the quota set up for such selection under Rule 5(a)(ii). The amended Rule 23 lays
down that seniority will be determined from the date of order of appointment in
substantive vacancy. These amended provisions have been made retrospectively
effective from March 1, 1962 to the existing officers i.e. the respondents
appointed substantively against temporary vacancies. It has been urged that
Government has the power to amend rules retrospectively and such rules are
quite valid. Several decisions have been cited of this Court at the Bar.
Undoubtedly the Government has got the power under proviso to Article 309 of
Constitution to make rules and amend the rules giving retrospective effect.
Nevertheless, such retrospective amendments cannot take away the vested rights
and the amendments must be reasonable, not arbitrary or discriminatory violating
Articles 14 and 16 of the Constitution.
"It
is well-settled that the power to frame rules to regulate the conditions of
service under the proviso to Art.
309
of the Constitution carries with it the power to amend or alter the rules with
a retrospective effect: B.S. Vadhera v. Union of India, [1968] 3 SCR 575; Raj
Kumar v. Union of India, [1975] 3 SCR 963; K. Nagraj & Ors. v. State of A.P.
& ANR., [1985] 1 SCC 523 and State of J & K v. Triloki Nath Khosla
& Ors., [1974] 1 SCR 77 1. It is equally well-settled that any rule which
affects the right of a person to be considered for promotion is a condition of
service although mere chances of promotion may not be. It may further be stated
that an authority competent to lay down qualifications for promotion, is also
competent to change the qualifications. The rules defining qualifications and
suitability for promotion are conditions of service and they can be changed
retrospectively. This rule is however subject to a well-recognised principle
that the benefits required under the existing rules cannot be taken away by an
amendment with retrospective effect, that is to say, there is no power to make
such a rule under the proviso to Art. 309 which affects or impairs vested
rights. Therefore, unless it is specifically provided in the rules, the
employees who are already promoted before the amendment of the rules, cannot be
reverted and their promotions cannot be recalled. In other words, such rules
laying down qualifications for promotion made with retrospective effect must
necessarily satisfy the tests of Arts. 14 and 16(1) of the Constitution."
The above observations have been made by this Court in the case of T.R. Kapur
v. State of Haryana & Ors., JT 1986 (SC) 1092 at 1101 446 (in which one of
us was a party). It has been held by this Court in E.P. Ravappa v. State of
Tamil Nadu, AIR 1974 (SC) 555 at 583 and Maneka Gandhi v. Union of India, AIR
1978 (SC) 597 at 624 that there should not be arbitrariness in State action and
the State action must ensure fairness and equality of treatment. It is open to
judicial review whether any rule or provision of any Act has violated the
principles of equality and non-arbitrariness and thereby invaded the rights of
citizens guaranteed under Arts. 14 and 16 of the Constitution. As has been
stated hereinbefore the Assistant Engineers who have already become members of
the Service on being appointed substantively against temporary posts have
already acquired the benefit of 1936 rules for having their seniority computed
from the date of their becoming members of the Service. 1969 and 197 1 Amended
Rules take away this right of these temporary Assistant Engineers by expressly
providing that those Assistant Engineers who are selected and appointed in
permanent vacancies against 50% quota provided by Rule 6 of the amended 1969
Rules will only be considered for the purpose of computation of seniority from
the date of their appointment against permanent vacancies.
Therefore
the temporary Assistant Engineers are not only deprived of the right that
accrued to them in the matter of determination of their seniority but they are
driven to a very peculiar position inasmuch as they are to wait until they are
selected and appointed against permanent vacancies in the quota set up for this
purpose by the amended Rule 6.
The
direct recruits on the basis of the competitive examination conducted by the
Commission and appointed against permanent vacancies on probation will
supersede the rights that accrued under the un-amended rules to the temporary
Assistant Engineers having precedence’s in the matter of determination of their
seniority from the date of their appointment against permanent vacancies. In
other words, the Assistant Engineers appointed substantively against temporary
posts several years before the direct recruits and working in the posts of
Assistant Engineers will be pushed down to the direct recruits against
permanent vacancies. It is also evident that there are about 200 Assistant
Engineers who have been appointed substantively by the Government with the
approval of the Public Service Commission before the enforcement of 1969 rules.
The direct recruits appointed on the basis of the examination against permanent
vacancies will get precedence over Assistant Engineers appointed in the matter
of determination of their seniority in the cadre of Assistant Engineers on the
basis of changed rules, particularly new Rule 23 which takes into account only
appointments in substantive vacancies. Thus appointments made under Rule
5(b)(i) are to be treated as temporary i.e. 'T' category officers and their
such services will not be 447 taken into consideration in determining seniority
until they are selected and appointed to permanent posts under Rule 5(a)(ii).
Note I to Rule 23 made it clear that an appointment made substantively on
probation against a clear vacancy in a permanent post will be treated as
substantive appointment. Thus the 1969 and 1971 amendments in effect take away
from the officers appointed to the temporary posts in the cadre through Public
Service Commission, i.e. after selection by Public Service Commission, the
substantive character of their appointment. These amendments are not only disadvantageous
to the future recruits against temporary vacancies but they were made
applicable retrospectively from 1.3.1962 even to existing officers recruited
against temporary vacancies through Public Service Commission. As has been
stated hereinbefore that the Government has power to make retrospective
amendments to the Rules but if the Rules purport to take away the vested rights
and are arbitrary and not reasonable then such retrospective amendments are
subject to judicial scrutiny if they have infringed Arts. 14 and 16 of the
Constitution.
In
the case of S.B. Patwardhan v. State of Maharashtra.
[1977]
3 SCR 775 at 778 Rule 8(iii) of 1960 Rules of Bombay Service of Engineers Grade
II which provided that direct recruits on probation in any year will be in a
bunch senior to promotees confirmed in that year was declared ultra vires of
Art. 14 of the Constitution as it purported to take away from the promotees
their right of seniority being determined from date of their promotion from
subordinate service to the posts of Deputy Engineers before confirmation. It
was held that:
"Though
drawn from two different sources~ the direct recruits and promotees constitute
in the instant case a single integrated cadre.
They
discharge identical functions, bear similar responsibilities and acquire an
equal amount of experience in their respective assignments. Yet clause (iii) of
r. 8 provides that probationers recruited during any year shall in a bunch be
treated as senior to promotees confirmed in that year. This formula gives to
the direct recruit even the benefit of his one year period of training and
another year's period of probation for the purposes of seniority and denies to
promotees the benefit of their long and valuable experience. If there was some
intelligible, ground for this differentiation bearing nexus with efficiency in
public services, it might perhaps have been possible to sustain such a
classification.
Instead
of adopting an intelligible differentia, r. 8(iii) leaves seniority to be
determined 448 on the sole touchstone of confirmation.
Confirmation
is one of the inglorious uncertainties of government service depending neither
on efficiency of the incumbent nor on the availability of substantive
vacancies." The Office memorandum dated December 7, 196 1 which purports
to amend the United Provinces Service of Engineers (Buildings & Roads Branch)
Class II Rules, 1936 in our opinion cannot override, amend or supersede
statutory rules.
This
memorandum is nothing but an administrative order or instruction and as such it
cannot amend or supersede the statutory rules by adding something therein as
has been observed by this Court in Sant Ram Sharma v. State of Rajas- than
& ANR., [1968] 1 SCR 111. Moreover the benefits that have been conferred on
the temporary Assistant Engineers who have become members of the service after
being selected by the Public Service Commission in accordance with the service
rules are entitled to have their seniority reckoned in accordance with the
provisions of rule 23 as it was then, from the date of their becoming members
of the service, and this cannot be taken away by giving retrospective effect to
the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable.
We
have already mentioned hereinbefore that the amended rules of 1969 read with
the amended rules of 197 1 adversely affect the rights of the Assistant Engineers
appointed to substantive posts prior to the introduction of these amended rules
and create fetters for the long years of service being ever considered for
reckoning of seniority in the cadre of Assistant Engineer. It is pertinent to
refer in this connection the decision of this Court in the case of Mohammad
Shujat Ali & Ors. etc. v. Union of India & Ors. etc., [1975] 1 SCR 449
wherein it has been observed that "it is true that a rule which confers a
right of promotion or the right to be considered for promotion is a rule
prescribing condition of service." For promotion from Assistant Engineer
to the post of Executive Engineer seniority-cum-merit is the criterion in
accordance with the service rules in question.
These
temporary Assistant Engineers unless they are selected to the 50% quota in
permanent vacancies reserved for promotion from the Assistant Engineers
appointed to temporary posts, will never have their service reckoned for
determination of seniority in the cadre. It is pertinent to mention in this
connection that 'T' category and 'D' category engineers have got some technical
qualification i.e. both are graduates in Civil Engineering and both worked as
Assistant Engineers in temporary vacancies. the respondents were appointed long
before the appointment of appellants as Assistant Engineers in permanent
vacancies. The appointment of respondents has been made in consultation with
the Public Service Commission and according to the decision in Baleshwar Dass's
case the respondents having become members of the Service they are deemed to be
appointed substantively in temporary posts. Therefore the amended rules more
particularly rules 3(c), 5 and 6 of 1960 rules as well as rule 23 of 197 1
amended rules are wholly arbitrary and discriminatory and so they are violative
of Articles 14 and 16 of the Constitution. It has been tried to be urged in
this connection on behalf of the direct recruits that the method of selection
to the cadre of Assistant Engineers by providing quota for direct recruits in
permanent vacancies was introduced by the authorities concerned in order to
attract meritorious and talented engineers in the U.P. Service of Engineers
(Buildings & Roads Branch) as there were very little prospects of promotion
for such Assistant Engineers to be promoted to the higher posts owing to the
large number of Assistant Engineers appointed to temporary posts. It has thus
been urged that these new rules have been introduced in order to give an
incentive to meritorious and talented engineers to get themselves recruited
directly to permanent posts in the cadre on the basis of the competitive
examination in order to have a fair promotional prospect in the service. This
submission cannot be sustained in view of the fact that firstly it seriously
prejudices the rights of the Assistant Engineers appointed substantively to the
temporary posts and working as Assistant Engineers for a number of years and
discriminates them from having their long years of service after being
appointed substantively in temporary posts and being members of the service
though the 'D' category engineers appointed much later in permanent posts will
steal a march over them by having their seniority reckoned from the date of
their appointment on probation. Secondly, this process of direct recruitment
against permanent vacancies was discontinued after 1971 and these amended rules
were not thereafter taken recourse to in filling up the vacancies in the cadre
of Assistant Civil Engineers as it worked injustice and had led to patent
discrimination violating Articles 14 and 16 of the Constitution. This is
perhaps the reason and rationale which impelled the Shukla Committee to
recommend the discontinuance of this practice of giving promotion to direct
recruits. Quota and rota are introduced where recruitments to a cadre of
Service are made from two or more sources. But in the instant case the quota
has been introduced for the first time after their recruitment for determining
seniority in service 'T' category having become members of the Service already
and also there are no different sources of recruitment as both 'D' and 'T'
category employees are recruited by examination conducted by Commission.
Moreover no quota for filling up permanent vacancies has been 450 provided at
the initial stage of recruitment but a quota has been made after recruitment at
the stage of confirmation.
In
this connection it is relevant to mention that the quota and rota which was
introduced by the 197 1 amendment of Rule 23 cannot be questioned to be
arbitrary in as much as when recruitments to a particular service are made from
more than one source quota and rota may be introduced consistent with the
equality clause envisaged in Articles 14 and 16 of the constitution. This
decision is new well settled by several decisions of this Court, the last of
these decisions is in the case of Narender Chadha & Ors. v. Union of India
& Ors., [1980] 1 SCJ 307. In the instant case the question is whether by
the substitution of rule 23 by the amendment Act of 1971 the long years of
service already rendered by the temporary Assistant Engineers who have become
members of the cadre of the service of Assistant Engineers fulfilling all the
conditions can be arbitrarily and unreasonably excluded while fixing seniority
and 'T' category officers can be deprived of their long years of services being
rackoned for determination of seniority.
It
has been urged on behalf of the appellants that the classification made between
temporary Assistant Engineers though working for a considerable period of time
but not appointed against permanent vacancies and direct recruits appointed on
the basis of the examination against permanent vacancies on probation is based
on merits. In support of this submission the decision in State of Jammu &
Kashmir v. Triloki Nath Khosa &'Ors., [1974] 1 SCC 771 has been cited at
the bar. This decision in our considered opinion is not applicable to the
instant case inasmuch as in that case recruitment to the cadre of Assistant
Engineers in Jammu & Kashmir Engineering Service was made by direct
recruitment of degree holders in civil engineering as well as by transfer of
degree or diploma holders having served as Supervisor for a period of not less
than five years. The recruitment rules also further provided for promotion to
the cadre of Executive Engineer on the basis of merit, ability and previous
service record of the candidates. In 1970 the Jammu & Kashmir Engineering
(Gazetted) Service Recruitment Rules 1970 were made providing that recruitment
to the post of Executive Engineers was to be made only by promotion of
Assistant Engineers possessing degree in civil engineering.
It
was held by this Court that the classification made had reasonable nexus for
classification namely to achieve administrative efficiency in the engineering
service by introducing higher qualification for promotion to the post of Executive
Engineer. In the instant case, all the Assistant Engineers whether appointed in
a temporary post of the cadre or in the permanent post of the cadre are
recruited directly from Graduates in Civil Engineering. The only difference is
that due to exigencies of service a large number of Assistant Engineers were
recruited by the Government in consultation with the Public Service Commission
in accordance with Rule 5(a)(ii) of 1936 Rules as it was prior to its
amendment, against temporary vacancies and those Engineers have been working as
Assistant Engineers since their appointment from 1956 on- wards till the end of
1961 when the impugned 1961 Memorandum was promulgated by the Government and
thereafter the amended Rules of 1969 and 197 1 were made. It was for the first
time that the amendment in the rules was made retrospective by introducing the
process of selecting Assistant Engineers to be appointed directly against
permanent posts on probation through examination to be conducted by the Public
Service Commission in 1962. Necessary amendments were also made in the Rules
3(c), 5 and 6 of the 1969 Rules as well as Rule 23 of the 1971 Rules in order
to provide better prospects of promotion to these direct recruits by laying
down that their seniority will be reckoned from the date of their appointment
on probation whereas in the case of Assistant Engineers who were working for
years together but appointed against temporary posts, their seniority from the
date of their appointment after consultation with the Public Service Commission
cannot be counted for the purposes of determination of seniority unless they
are appointed against permanent posts and confirmed. Therefore it cannot be
said that higher education qualification has been prescribed as in the case of
State of Jammu & Kashmir v. Triloki Nath Khosa & Ors. for the purpose
of appointing Assistant Engineers directly against permanent post on promotion.
In the instant case undoubtedly, both 'T' and 'D' category Assistant Engineers
are Graduates in Engineering and both are performing the same nature of work.
It is also significant to note in this connection that the appellants were
previously appointed as Assistant Engineers against temporary vacancies of the
cadre but subsequently on the basis of this examination they have been
appointed directly on probation against permanent vacancies. There is nothing
to show that these Assistant Engineers had shown any extraordinary or brilliant
performance as Assistant Engineers. It is also to be noted that the temporary
Assistant Engineers have acquired much experience in their work having been
appointed much before the direct recruits against permanent vacancies. As
stated hereinbefore that under the 1936 Rules the Assistant Engineers appointed
against temporary vacancies became members of the Service under the then Rule 3
and they were eligible for their seniority being reckoned from the date of
their becoming member of the Service. In these circumstances it is evident that
the impugned 452 Rules of 1969 and 197 1 purport to take away or to cruelly cut
off the long years of valuable service rendered by these respondents i.e.
Assistant Engineers appointed in temporary vacancies of the cadre only to the pretext
of appointment against permanent post and confirmation. The effect of the 1969
and 1971 amendments was thus to take away from the officers appointed to the
temporary cadre through Public Service Commission i.e. after the selection by
the Commission the long years of service after becoming members of the Service.
It is also pertinent to mention here that though these temporary posts of the
cadre have been continuing for over years together yet these temporary posts
have not been made permanent before 1961 and thereby depriving the Assist- ant
Engineers from being appointed against permanent vacancies even though they
have become members of the service being appointed in a substantive capacity.
These temporary, Assistant Engineers after introduction of the amended rules
have been relegated to a very uncertain position as to when they will be
selected against permanent vacancies by the Commission in the 50% quota
provided under Rule 6 of the amended Rules to become members of Service and to
have their seniority reckoned. Moreover the fate of those Assistant Engineers
who are selected and appointed in temporary posts on the basis of the results
of the examination is also very uncertain inasmuch as they will be considered
for selection by the Commission against the quota for temporary Assistant
Engineers after the Assistant Engineers appointed before them are all
considered for selection in the said quota set up for the temporary Assistant
Engineers in permanent vacancies even though they have been appointed through
the same process of examination considering all these circumstances we are
constraint to hold that the impugned provisions of Rule 3(c), 5 and 6 of the
1969 Rules and Rule 23 of the 1971 Rules are arbitrary, irrational an
unreasonable infringing Articles 14 and 16 of the Constitution insofar as they
affect the question of determining the inter se seniority of temporary
Assistant Engineers appointed by the Government i.e. T-category officers under
rule 5(2) of the Rules as against that of D-category officers i.e. officers
directly recruited by the Government against permanent vacancies and placed on
probation.
An
argument has been advanced on behalf of the direct recruits i.e. the appellants
that they having duly succeeded in the competitive examination on the basis of
the amended rules cannot be deprived of their right to be promoted on the basis
of the fixation of their seniority in the cadre of Assistant Engineers as
provided in the amended rule 23 of 1971 rules. This argument in our considered
opinion cannot hold 453 good in as much as the cadre of Assistant Engineers comprises
of both permanent and temporary posts. Rule 3(b) specifically lays down that an
Assistant Engineer becomes member of the service as soon as he is appointed in
the substantive capacity even in a temporary post in the cadre.
It
is inconceivable how a member of the service can be prevented from having his
service reckoned for determination of seniority in the service from the date he
became member of the Service. The substituted rule 23 introduced in 197 1 is on
the face of it unreasonable and arbitrary in as much as it purports to deprive
a member of the service from having his seniority reckoned on the ipse dixit of
the rules that he has not been appointed in a substantive vacancy.
Rules
3(c) 5 and 6 of 1969 Rules are arbitrary, irrational and not reasonable
infringing Article 14 of the Constitution. While considering this we of course
agree with the finding arrived at by the High Court that so far as the
selections made on the basis of the competitive examination on the basis of the
amended rules of 1969 and 197 1 read with G.O. dated 7.12. 196 1 more than two
decades before, should not be disturbed in as much as these selections were not
challenged during all these years and these direct recruits have worked there
since their appointment. We also make it clear that our decision will not
affect any confirmations or substantive promotions made prior to the filing of
the writ petitions.
It
appears that an interim order was made by this Court on 5.5. 1982 to the effect
that "if any appointments pursuant to the fresh rules which are framed,
are made these will be subject to the results of these appeals." It also
appears that in Civil Appeal Nos. 2616-19 of 1981 this Court while disposing of
those appeals by order dated 15.4.1981 directed that in regard to promotions
already made in accordance with the impugned seniority list there shall be
status quo as on the date on which the writ petitions were filed in the court.
It was also directed that such promotions and any future promotions made in
accordance with the impugned seniority list will abide by the result of these
appeals. We make it clear that since we are dismissing these appeals all those
ad hoc promotions given during the pendency of these writ petitions as well as
civil appeals will not confer any right on the promotees.
We
further hold that so far as the temporary Assistant Engineers who have been
appointed substantively to temporary posts and have been working for years together
after being only recruited and selected by the Public Service Commission as
required under the service rules have become members of the service but so far
as purely ad hoc employees or employees on purely officiating basis or
employees purely for 454 a temporary period in the cadre of Assistant Engineer
in Public Works Department being not members of the service in accordance with
the service rules, are not entitled to have the benefit of their such
adventitious, purely ad hoc and temporary service being not appointed
substantively even to a temporary post will not be reckoned for determination
of seniority unless and until they become members of the service in accordance
with the provisions of service rules. Only those ad hoc appointees whose services
have been regularised by the regularisation rules framed under proviso to
Article 309 of the Constitution after being duly selected by the Selection
Committee and becoming member of the service, will be entitled to seniority
only from the date of order of appointment after selection in accordance with
those regulations as provided in rule 7 of the regulations.
We
mention in this connection the observations of this Court in the case of Ashok
Gulati and Ors. v. R.S. Jain & Ors., AIR 1987 (SC) 424 (to which one of us
was a party). It has been observed as follows:- "According to the accepted
canons of service jurisprudence, seniority of a person appointed must be
reckoned from the date he becomes a member of the service ........ It is well
settled that an ad hoc or fortuitous appointment on a temporary or stop-gap
basis cannot be taken into account for the purpose of seniority even if the
appointee was qualified to hold the post on a regular basis, as such temporary
tenure hardly counts for seniority in any system of service
jurisprudence." Similar observation was also made by this Court in the
case of State of Gujarat V.C.G. Desai, [1974] 2 SCR 255.
Therefore
we make it clear that the period of service rendered by the ad hoc appointees
before their service has been duly regularised in accordance with the
regularisations rules, cannot be taken into account in reckoning their
seniority in service. Their seniority in service will be counted only from the
date when such ad hoc appointees after regularisation in accordance with
concerned rules have become members of the service.
We
direct the authorities concerned to prepare a fresh seniority list of all the
members of the service in the cadre of Assistant Engineer in the PWD Department
on the basis of their length of service from the date they have become members
of the service fulfilling all the requirements laid down in the service rules.
We cannot but observe in this connection that though the temporary Assistant
Engineers have 455 been duly selected by the Public Service Commission after
they are appointed as temporary Assistant Engineers yet in spite of several
directions given by this Court, the authorities concerned did not think it fit
and proper to prepare the seniority list in accordance with the directions
given by this Court and as a result no seniority list in the cadre of Assistant
Engineer has yet been prepared following the directions made even by this Court
as embodied in the decision in Baleshwar Dass & Ors. v .State of U.P. &
Ors. On the other hand amendments have been made to the existing 1936 service
rules which per se seem to be arbitrary and this led to a spate of litigations.
We do hope and expect that considering all these, the Government will take
effective steps for preparation of seniority list as early as possible in order
to create incentive for the members of the service by holding out prospects of
future promotions in the interests of the service.
In
the premises aforesaid we dismiss these appeals and affirm the judgment and
order of the High Court of Allahabad quashing the said seniority list dated
29.7.1980 together with supplementary seniority lists dated 18.12. 1980 and
19.12. 1980 relating to Civil Engineering Wing. Rules 3(c), 5 and 6 of 1969
Rules as well as Rule 23 of 1971 Rules are also quashed. The condition in
Office Memorandum dated 21.1.1980, Annexure 2 of Writ Petition No. 2447 of 1980
providing that for the selection for the post of Superintending Engineer the
officer must be a confirmed Executive Engineer is quashed. A writ of mandamus
be issued directing the Government to prepare a fresh seniority list of
Engineers in the Civil Engineering and E.M. Wing respectively in the light of
the observations made hereinbefore. This order, however, will not affect any
confirmations or promotions (other than ad hoc promotions) made before
29.11.1979. In the facts and circumstances of the case, there will be no order
as to costs.
H.L.C.
Appeals dismissed.
Back
