Katyani Dayal & Ors Vs. Union of India & Ors [1980] INSC 53 (26 March 1980)
1980 Latest Caselaw 53 SC

Katyani Dayal & Ors Vs. Union of India & Ors [1980] INSC 53 (26 March 1980)

REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION: 1980 SCR (3) 139 1980 SCC (3) 245

ACT:

Temporary Assistant Engineers, gazetted service recruited by Railway Board-Neither classified as Class I or Class II but given the junior scale of pay of Indian Service of Engineers Class I, and eligible to be considered for absorption in permanent vacancies as per quota fixed per year-Whether belong to the cadre of Indian Service of Engineers-Whether treating them purely temporary offends Articles 14 and 16 of the Constitution-Constitution of India Articles 53, 73(1) (a) and 109-Indian Railway Establishment Rules 102(3) (13), 105, 106-109, 112, 116, 118(i), 125, 129, 130-133, 140 and Rule 2003(3), (22), (29), (30), (31).

HEADNOTE:

Several assignments such as the construction of major bridges, new lines, doubling of and electrification of existing lines etc. were taken up the Engineering Department of the Indian Railways and to carry out these works, a number of temporary posts of Class I (Indian Railway Service of Engineers) and Class II engineers were created. It was not thought possible to meet additional personnel requirements from existing sources, i.e. direct recruitment to Class I by competitive examination and promotion to class II from class III. Instead, under a special scheme the various writ petitioners were appointed at various times between 1955 and 1964 as temporary Assistant Engineers by the Railway Board. Everyone of them was told that the appointment, would be on a temporary basis, that the post to which they were appointed would be neither in Class I nor in Class II service though they were eligible, on completion of three year's service, to be considered along with other temporary Assistant Engineers for absorption in Class I (Junior Scale) against vacancies ear-marked from time to time for such absorption in the Indian Railway Service of Engineers cadre upto a maximum of six per year, and that in the event of their being selected in Class I Service their seniority would count from the date of the permanent appointment to Class I service. They were required to execute service agreements "as applicable to temporary officers". The petitioners accepted the terms offered to them and joined duty in the post to which they were appointed. The petitioners also executed agreements in a standard form known as "Agreement for Temporary Assistant Officers of the Indian Railways".

140 Though in their orders of appointment as temporary Assistant Engineers the petitioners and others were told that six of them would be absorbed into the Indian Railway Service of Engineers Class I every year, the quota was increased to eight per year in 1957 and fifteen per year in 1961. In 1960, the quota was fixed at 60 per cent of the actual intake of probationers from the CES etc.

examinations. Again in 1975 the quota was increased to 25 per year. The net result was that all but a 107 temporary Assistant Engineers were left unabsorbed by the time of the filing of the writ petitions and they too were finally absorbed in 1979 by a blanket order. On September 17, 1965, the Railway Board decided that the temporary officers so absorbed into the Railway Service of Engineers should be given weightage in seniority "on the basis of half the total number of years of continuous service in working posts on Railways prior to their permanent absorption into Class I, subject to maximum weightage of five years." One of the writ petitioners, Katyani Dayal field a writ petition in the Allahabad High Court claiming promotion to the Senior scale post of District Officer. He found his claim on Rule 133(3)(c) of the Railway Establishment Code on the basis that he was an Assistant Officer within the meaning of that expression as then defined by Rule 102(3).

The High Court allowed the writ petition and gave a direction to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the post of District Officer as soon as vacancies arose, ignoring the circulars which gave preference to Class I junior scale officers of four years standing or more as against temporary Assistant Engineers.

An appeal filed by the Railway Administration under the Letters Patent was dismissed by a Division Bench of the High Court. Though the Division Bench dismissed the appeal on August 1, 1974, the Railway Administration did not implement the judgment but instead on December 12, 1975 amended the Rule 102(3), 133(3)(c) and (f) and introduced new rule 102(17) so as to expressly exclude temporary Assistant Officers (newly defined by Rule 102 (7), from the category of Assistant Officers and thus make them ineligible for promotion to the senior scale under Rule 133(3)(c) and (f).

The petitioners, therefore, have filed these writ petitions in a representative capacity purporting to represent all temporary Assistant Engineers appointed on the recommendation of the Union Public Service Commission, claiming that, in law they could only be and were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither Class I nor Class II.

They claimed that they were appointed to temporary posts in the cadre of Indian Railway Service of Engineers Class I and that their seniority had to be reckoned on the basis of their length of continuous service, though they 141 conceded that in any given year those appointed on the basis of the results of the competitive examination might be placed above those appointed on the basis of the selection by the Union Public Service Commission.

Dismissing the petitions the Court

HELD: (1) Arts. 53, 73(1)(a) and 309, make it clear that the President, acting directly or through officers subordinate to him is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again, if he so chooses he may not make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled. But, if there is an Act of Parliament or a rule under the proviso to Article 309 on the matter, the executive power under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to such Act or rule. [162D-F] B.N. Nagarajan v. State of Mysore, [1966] SCR 682 @ 686; State of Kerala v. M.K. Krishnan Nair and ors., [1978] 2 S.C.R. 864 at 874; referred to.

(2) The previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers. Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various departments of Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956, and by the President further specifying the Railway Board as the authority competent to make appointment of such temporary Assistant Officers. The posts of Temporary Assistant Officers were thus created and appointments made, under valid authority and outside the existing cadres of the Indian Railway Service of Engineers.

The letters of "indent", the advertisements, the letters of appointment and the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commission were to be a source of recruitment to the Indian Railway Service of Engineers Class I. If Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class, no temporary Assistant Officer could possibly be under any misapprehension that he was 142 appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service. [162G- H, 163G-H, 164A] The petitioners cannot be considered to have been appointed under rule 130(d) of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission, their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same. [164A-C] (3) It is no doubt true that a cadre may consist of permanent vacancies in permanent as well as temporary posts borne on the cadre. But it does not follow that appointments stated to be made to posts outside the very service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue. [164 F-G] The Annual Administrative Reports merely refer to appointments, temporary as well as permanent, made in the gazetted service by direct recruitment. Gazetted Railway services must include both the Indian Railway Service of Engineers and the Gazetted Railway Service constituted by the temporary Assistant Officers. Therefore, by merely taking into account the number of Temporary Assistant Officers for the purpose of calculating the total number of persons appointed to Gazetted Railway Service it cannot conceivably be said that Temporary Assistant Officers were appointed to cadre posts in the Indian Railway Service of Engineers. Even the classified lists of Gazetted officers do not indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers. On the other hand under the column "Date of appointment to Class" no entry is made against the names of any of the Temporary Assistant Officers who had not yet been absorbed into the Indian Railway Service of Engineers. [165 B-C, D-E] If posts were initially created and sanctioned, the subsequent continuance of the posts indefinitely would not make persons appointed to the posts members of the Railway Service, namely, the Indian Railway Service of Engineers Class I. [165 F-G] (4) The note below Rule 106 of the Railway Establishment Code merely states an existing fact known to all concerned, namely, that posts of Temporary Assistant Officers in gazetted railway service who were not to be classified 'either as Class I or as Class II' had been sanctioned by the President 143 who had designated the Railway Board as the authority competent to make appointments to those posts. With or without the note, the Temporary Assistant Officers would still not be classified either as Class I or Class II. Their classification outside Class I and Class II was not dependant on the note but on the Presidential sanction in regard to the creation of the posts.

[166 A-B] (5) Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code. The expression "Temporary Assistant Officer", which was not previously defined in the Railway Establishment Code, was sought to be defined by new clause 17 of R.102 to mean "a Gazetted Railway Servant drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as Class II Officers. The expression Assistant Officer was redefined so as not to include a Temporary Assistant Officer who was not 'classified' either as Class I or as Class II. [166 C-D] The amendments do not have any effect one way or the other on the status of the Temporary Assistant Officers.

What was always well known to the Temporary Assistant Officers and the Railway Board and what was the inevitable result of the Presidential sanction for the creation of posts which were not to be classified either as Class I or Class II, was made explicit in the Indian Railway Establishment Code also by the introduction of these amendments. This became necessary because in the Writ Petition filed by Katyani Dayal, the Allahabad High Court, while appearing to hold that Temporary Assistant Officers belonged neither to Class I nor to Class II service, held that they came within the then existing definition of 'Assistant Officer' so as to entitle them for promotion under r. 133 of the Indian Railway Establishment Code.

[166E-G] The definition of Assistant Officer was not to be read in isolation but should have been read conjunctively with Rules 105, 106 and 108. A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway Establishment Code, Railway services were to be classified into Class I, Class II, Class III, Class IV and workshop staff. Rule 106 specified the appointments and categories falling under the services mentioned in Rule 105. Rule 108 required the Railway Board to fix the strength of the Railway Services, Class I and II. There could therefore, be no question of an officer not falling within the class, category or cadres specified in rules 105, 106 and 108 claiming to be an 'Assistant Officer' within the meaning of that expression. A person recruited to the post of Temporary Assistant Officer not classified as Class I or Class II Officer could not claim to belong to the Class, category or cadre specified in Rules 105, 106 and 108 and was, therefore, not an Assistant Officers within the meaning of that expression even before the 1975 amendment.

[167 D-F] (6) There are and there can be no absolutes when the Court considers claims to justice on complaints of inequality. The Marxian of a classless society, however laudable that may be, is evidently not what is sought to be achieved by Arts. 14 and 16 of the Constitution. The goal is a limited one. It is equality among comparables. A necessary, but not necessarily cynical, implication of equality among comparables is the permissibility of reasonable classification, having nexus with the object to be achieved. If two services started and continued dissimilarly, though they apparently discharged similar duties, they were not comparable services so as to furnish a basis for the claim to equality. But if in the same service there were two sources of recruitment to the same service, a classification based solely on source of recruitment was not permissible. [176 E-G] State of Punjab v. Joginder Singh, [1963] Supp. 2 SCR 169, 191, 192; Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185 and Mervyn Coutindo & Ors. v. Collector of Customs, Bombay and Ors., [1966] 3 SCR 600; referred to.

(7) Those who were appointed to ex-cadre posts outside the rules and whose tenure was therefore precarious could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and posts borne on the cadre of the service. [177 F-G] H.S. Varma & Ors. v. Secretary, Ministry of Shipping and Transport & Ors. [1979] 4 SCC 415 @ 427, 428; referred to.

(8) The classification of Temporary Assistant Officers separately from the Indian Railway Service of Engineers Class I is neither discriminatory nor is violative of Articles 14 and 16 of the Constitution for the reason that it had no nexus to the object to be achieved namely efficiency of service.

[167 G-H] The service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one. The objects of their recruitment were different, the methods of recruitment were dissimilar and the appointing authority was not the same.

The training that was imparted was also unlike. The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Services of Engineers Class I. These distinctive features marked out the Temporary Assistant Officers as a Class apart from the Indian 145 Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter.

Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these Officers merited something more than the 'long wait' at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to maximum of five years [177D-G] Equally important, is the fundamental qualitative difference, linked with the method of recruitment. True, the minimum educational qualification is the same. But, those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competative, written and personality tests. Only the very best can aspire to come out successful. The Temporary Assistant Officers were not subjected either to a written or to a personality test but were selected on the basis of an interview by the Union Public Service Commission. In addition to the minimum educational qualification, three years' experience as a Civil Engineer was also prescribed. Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I, it was replaced by experience in the case of those wanting to be Temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of Temporary Assistant Officers was the Railway Board, no doubt, pursuant to the authority given by the President. Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers. For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the Department too; while the training for Temporary Assistant Engineers was a brief six months' training intended merely to equip them for carrying out the specific jobs. In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I, those provisions are applicable to 'Temporary Assistant Officers' to the extent there is no specific provision in their letter of appointment and agreement. [169 C-H] State of Punjab v. Joginder Singh, [1963] Supp. 2 SCR 169, @ 191, 192, Kishori Mohanlal v. Union of India, A.I.R.

1962 SC 1139, Jammu & Kashmir v. Triloki Nath Khosa and Ors., [1974] 1 SCR 771 @ 790, 792 Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185; Mervyn Coutindo and Ors. v. 146 Collector of Customs, Bombay and Ors., [1966] 3 SCR 600, Mohammad Sujat Ali and Ors. v. Union of India and Ors. etc., [1975] 1 SCR 449 @ 481, S.B. Patwardhan and Ors. etc. v. State of Maharashtra and Ors. [1977] 3 SCR 775; A. K. Subraman v. Union of India, [1975] 2 SCR 979 and M.S. Verma and Ors. v. Secty. Ministry of Shipping & Transport and Ors., [1979] 4 SCC 415 @ 427, 428; discussed.

Observation:

There is nothing 'doctrinaire' in the principle of "equal pay for equal work" and "equal status for equal pay and equal work". They are not goals to be scoffed at. It may be that in the present societal context, the goals may appear to be distant. But they are goals worthy of attainment and would be achieved in the not too distant future. [178 A-B]

ORIGINAL (CIVIL) APPELLATE JURISDICTION: Writ Petition Nos. 147 to 151 of 1976.

(Under Article 32 of the Constitution) WITH SPECIAL LEAVE PETITION (CIVIL) No.7905 OF 1979 From the Judgment and Order dated 29-8-1978 of the Allahabad High Court, in S.A. No. 887/70.

M.C. Bhandare, Mrs. S. Bhandare and T. Sreedharan for the Petitioners.

L.N. Sinha, Attorney General, Mr. M.K. Banerjee, Addl.

Solicitor General, R.B. Datar, A.K. Ganguli, R.N. Sachthey and Miss A. Subhashini for RR 1 and 2.

F.S. Nariman, Anil B. Dawan, P.H. Parekh, C.B. Singh and R. Karanjwala for RR 1 & 19.

S.C. Gupta and Ramesh Chand for RR 14.

Madan Bhatia and D. Goburdhan for RR 20.

Y.S. Chitale, V.M. Tarkunde, and A.N. Karkhanis for RR 28 and 31.

S.D. Gupta in person for impleading RR in WP 147/76.

Girdharee Singh and S.K. Jain for the Intervener.

147 The Judgment of the Court was delivered by, CHINNAPPA REDDY, J.-Several hundred Railway Engineers who should have been busy elsewhere, building bridges, laying or doubling tracks and soon have found themselves in the corridors of this Court in pursuit of the leaves of career. Quite a contingent was present in Court anxiously watching the proceedings and listening with expect attention to every word that fell from counsel and judge. One could not help wondering whether this multitiered. 'multi-varne' Service-system was itself not productive of a career neurosis, destructive of the very efficiency which is sought to achieve.

2. In this case, as in most other service matters that reach this Court, the question which arise for consideration relate to classification, confirmation, seniority, promotion etc., questions which appear to agitate the minds of the members of all services. Administrators seeking to find solutions to some of the problems very soon discover that their solutions are no more than illusions and have created other problems. First one party and then another party, all seek the protection of the Court. The Court is no expert administrator. Lacking expertise, lacking the administrator's access to information, there are obvious limitations to what the Court may be. The Court may at best attempt to solve some basic legal issues. That the Court strives to do without disturbing the administrative equilibrium.

3. The service with which we are concerned in this Case is the Indian Railway Service of Engineers, Class I. While the petitioners claim that they were appointed to this service after selection by the Union Public Service Commission, the respondents allege that the petitioners were appointed as temporary Engineers only, constituting a special class and service by themselves, and were not appointed to the Indian Railway Service of Engineers Class I at all.

4. It appears that from the time of the first Five Year Plan onwards several important assignments such as the construction of major bridges, new lines, doubling of electrification of existing lines etc. were taken up by the Civil Engineering Department of the Indian Railways. It became necessary to create a number of temporary posts of Class I (Indian Railway Service of Engineers) and Class II Engineers to carry out these works. In 1955 it was estimated that about 200 additional Engineers would be necessary within the next two years to deal with the planning, surveying, estimating and construction of the multitude of the proposed development works. It was not thought possible to 148 meet the additional personnel requirements from existing sources, which were direct recruitment to Class I on the basis of the results of a competitive examination and promotion to Class II from Class III. Though the conversion of some of the temporary posts into permanent ones might meet part of the requirement, it was thought, recruitment through normal channel to such posts would necessarily have to be spread over a period of years so as to avoid 'bunching of officers within particular age group'. It was, therefore, decided to recruit, in the first instance, fifty temporary Engineers immediately. Their scale of pay was to be the same as that of the Indian Railway Service of Engineers. The age limit was to be 25 to 35 years so as to attract Engineers with practical experience. The appointments were to be normally made on the minimum of the time scale but persons with previous experience could be fitted into the scale at a higher stage. As the posts were to be temporary, it was decided that an incentive should be given to attract suitable candidates by reserving a proportion of the permanent vacancies in the Indian Railway Service of Engineers each year for being filled by such temporary Engineers. Six vacancies in the Indian Railway Service of Engineers were to be so earmarked annually to start with.

The quota could be increased later. On permanent appointment to the Indian Railway Service of Engineers seniority would count from the date of such appointment. Proposals on these lines were conveyed by the Railway Board to the Union Public Service Commission on February 21, 1955 with a request to take steps for the early recruitment of temporary Engineers.

A formal requisition in the prescribed form was also sent to the Union Public Service Commission. In this form, the post was designated as "Assistant Engineer", the number of posts was mentioned as 50, and, the class of service to which the post belonged was mentioned as "Gazetted Railway Service".

Against the heading "whether permanent or temporary", the posts were mentioned as "temporary". Against the column "if the post is temporary, please state : (a) when it was sanctioned; (b) the period for which it has been sanctioned and (c) irrespective of the period of sanction how long it is expected to last and whether it is expected to be retained on a permanent basis eventually", it was mentioned that the posts would be sanctioned shortly in connection with a number of projects, that the period would be two years in the first instance but was likely to be extended upto five years and that the employment might continue indefinitely but on a temporary basis. It was specified that the candidates would be eligible to be considered for absorption in permanent vacancies at the rate of six per year. The scale was mentioned as Rs. 350-350-380-380-30-590- E.B.-30-770-40-850, this being the Junior Scale of pay of Indian Railway Service of Engineers Class I. It was 149 said that higher initial salary was permissible according to experience and qualifications. The academic qualifications were to be the same as for regular recruitment to Indian Railway Service of Engineers. Against the heading prospects of promotion to higher post it was stated that they might be considered for promotion to senior scale posts in the grade of Rs. 600-40-1000-50/2-1150 according to the exigencies of service. Similar proposals and "indents" for recruitment of temporary officers to six other departments of the Railways were also simultaneously made.

5. Pursuant to the requisition by the Railway Board, the Union Public Service Commission issued an advertisement inviting applications for "50 posts of Assistant Engineers, Ministry of Railways, Service Class I (Gazetted), posts temporary for two years in the first instance but likely to continue". The minimum educational qualification was stated to be a Degree in Civil Engineering, but an additional qualification of 'about 3 years experience as a Civil Engineer' was also prescribed. The qualification was relaxable at the discretion of the commission in the case of candidates otherwise well qualified. It was mentioned in the advertisement that the candidates would be eligible 'for being considered for absorption in permanent vacancies at the rate of six per year' and might be considered 'for promotion to senior grade posts in the scale of Rs. 600-40- 1100-50/2-1150 according to the exigencies of service'. It appears that the reference to Class I in the advertisement was considered by the Railway Board to be a mistake. The Railway Board, therefore, addressed a letter dated October 31, 1955 to the Union Public Service Commission pointing out that in their requisition they had indicated "Gazetted Railway Service" as the service to which recruitment was to be made and that it was not intended that it should be either Class I or Class II. It was also mentioned that statements had been made on the floor of the Lok Sabha and Rajya Sabha that the posts were "temporary" and "neither in Class I nor in Class II". The Commission was accordingly requested to issue a suitable correction slip. Thereafter, in the subsequent advertisements issued by the Union Public Service Commission there was no reference to Class I. It was merely mentioned that applications were invited for specified number of posts of "Assistant Engineers (Civil), Ministry of Railways, posts temporary but likely to continue".

6. The petitioners in the various Writ Petitions who submitted their applications in response to such advertisements, were selected by the Union Public Service Commission, at various times between 1955 150 and 1964 and were offered appointments as 'Temporary Assistant Engineers' by the Railway Board. Everyone of them was told that the appointment would be on a temporary basis in the scale of Rs. 350-350-380-380-30-590-E.B.-30-770-40- 850. They were also expressly told that the posts to which they were appointed would be neither in Class I nor in Class II, service though they were eligible, on completion of three years service, to be considered alongwith other temporary Assistant Engineers for absorption in Class I (Junior Scale) against vacancies ear-marked from time to time for the absorption of temporary Assistant Engineers in the Indian Railway Service of Engineers Cadre upto a maximum of six per year. They were also expressly informed that in the event of their being selected in Class I Service their seniority would count from the date of their permanent appointment to Class I Service. They were required to execute service agreements "as applicable to temporary officers". It was also stipulated that in all matters not specifically referred to in the order of appointment, the person appointed would be governed by the provisions of the Indian Railway Establishment Code and the extant orders issued from time to time. The petitioners accepted the terms offered to them and joined duty in the posts to which they were appointed.

7. The agreements which the petitioners and others like them were required to execute and which they presumably did execute (were in a standard form known as 'Agreement for Temporary Assistant Officers of the Indian Railways'.

Paragraph 2 of the standard form and agreement specified that the appointment was in a gazetted post C which is neither in Class I nor in Class II service) on scale Rs.

350-350-380-380-30-590-E.B.-770-40-850. Paragraph 5 mentioned that the person appointed would be eligible along with other temporary Assistant Officers "for being considered for absorption in the permanent vacancies in the Class I (junior scale) of the..........department upto a maximum number of vacancies in a year as may be fixed by the Government" and that in the event of his being selected for that service his seniority would count from the date of confirmation. Paragraph 6 recited that he would be considered for appointment to a Senior Scale post. The agreement provided that in respect of matters for which no provision was made in it, the provisions of the Indian Railway Establishment Code from time to time in force or rules made thereunder shall apply to the extent they were applicable to temporary Assistant officers. It was further provided that the decision of the Government as to their applicability, interpretation and effect shall be final.

8. It should be mentioned here that though there was no previous Presidential sanction for making appointments to posts which were 151 neither in Class I nor in Class II but merely in 'gazetted service', the matter was rectified and Presidential sanction was subsequently obtained in November, 1956. This was communicated by the Railway Board to the General Managers of all Indian Railways by letter No. E-55RC-16 (Pt. A) dated November, 22, 1956. It was also decided by the President that the Railway Board of the competent authority to appoint Temporary Assistant Officers in the various departments of the Railways. This was mentioned by the Board in letter No. E. (GF-P) 56RC-16 Pt. A dated 18-12-57 addressed to the General Managers of all Indian Railways.

9. Between the years 1955 and 1964 as many as 553 temporary Assistant Engineers were appointed after selection by the Union Public Service Commission. Though in their orders of appointment as temporary Assistant Engineers, the petitioners and others were told that six of them would be absorbed into the Indian Railway Service of Engineers Class I every year, the quota was increased to eight per year in 1957 and fifteen per year in 1961. In 1960 the quota was fixed at "60% of the actual intake of Probationers from the CES etc. examinations". Again in 1975 the quota was increased to 25 per year. The net result was that all but a 107 temporary Assistant Engineers were left unabsorbed by the time of the filing of the Writ Petitions and they too were finally absorbed in 1979 by what was described to us as a 'blanket order'. We were informed that the validity of the absorption on this mass scale is under challenge in some Writ Petitions filed by members of the Indian Railway Service of Engineers, Class I. At this juncture we also find it necessary to mention that the Railway Board decided, on September 17, 1965, that the temporary officers so absorbed into the Indian Railway Service of Engineers should also be given weightage in seniority "on the basis of half the total number of years of continuous service in working posts on Railways prior to their permanent absorption into Class I, subject to a maximum weightage of five years". This, of course, was the result of representations made by the temporary officers. This too we are told is under challenge.

10. The petitioners have filed these Writ Petitions in a representative capacity purporting to represent all temporary Assistant Engineers appointed on the recommendation of the Union Public Service Commission, claiming that, in law, they could only be and were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither Class I nor Class II.

They claim that they were appointed to temporary posts in the cadre of Indian Railway Service 152 of Engineers Class I and that their seniority had to be reckoned on the basis of their length of continuous service, though they concede that in any given year those appointed on the basis of the results of the competitive examination might be placed above those appointed on the basis of the selection by the Union Public Service Commission. They contend that the Railway Board had no authority to create an unclassified service, as it were, outside the provisions of the Indian Railway Establishment Code. Notwithstanding the requisitions issued by the Railway Board, the advertisements issued by the Union Public Service Commission and the letters of appointment issued to the petitioners, they contend that they were appointed to the cadre of Indian Railway Service of Engineers Class I and to no other service. They contend that they were recruited to Class I service under rule 130(d) of the Indian Railway Establishment Code which provides for "occasional admission of other qualified persons on the recommendations of the Union Public Service Commission". They question the vires of the note to Rule 106 which was added by way of amendment in 1956 and which provided that 'temporary Assistant Officers would not be classified either as Class I or as Class II'.

The petitioners claim that the distinction made by the Railway Administration between Assistant Officers recruited on the basis of the results of the competitive examination and the temporary Assistant Officers recruited on the recommendation of the Union Public Service Commission was discriminatory and offended Articles 14 and 16. They contend that all Assistant Officers formed one class under the Indian Railway Establishment Code. The further classification of Assistant Officers into those that were recruited on the basis of a competitive examination and those that were recruited on the recommendation of the Union Public Service Commission was a "micro-classification" not permissible under the law. They point out that the minimum academic qualifications and the scales of pay of the Permanent and the Temporary Engineers (for the sake of brevity the Assistant Officers appointed on the basis of the results of the competitive examination may hereafter be described as permanent Engineers while those appointed on the basis of the recommendation of the Union Public Service Commission may be described as Temporary Engineers) were identical, the duties and functions were the same and they occupied interchangeable posts. They further allege that, in any case, the right of absorption of six temporary Engineers only every year into the Indian Railway Service of Engineers were arbitrary and inequitous. It had resulted in such gross injustice that two decades of service of several of the petitioners. was to be counted for nothing.

11. Before proceeding to consider the various contentions raised on behalf of the petitioners it is necessary to make a brief reference to the history, service and legal, of one of the many petitioners. Shri Katyani Dayal was working as an Assistant Engineer in the service of the Punjab Government from 1952 onwards. He was one of those who was selected by the Union Public Service Commission and appointed as a temporary Engineer in 1958. He was drawing pay in the junior scale. He crossed the Efficiency Bar in 1966 and according to him he was thereafter entitled to be considered for promotion to the senior scale to the post of District Officers. He founded his claim on r. 133(3) (c) on the basis that he was an Assistant Officer within the meaning of that expression as then defined by r. 102(3). As he was not so promoted and as it was proposed, on the basis of some circulars, to promote permanent Engineers of four years standing, he filed a Writ Petition in the High Court of Allahabad claiming that he was entitled to be considered for promotion to officiating post of District Officer. The Railway Board opposed the claim of Katyani Dayal on the ground that he was a temporary Assistant Engineer and not an Assistant Officer and therefore, not entitled to be promoted in terms of r. 133(3)(c). The Railway Board's contention was over-ruled by a learned Single Judge of the High Court and a direction was given to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the posts of District Officers as soon as vacancies arose. The Railway Administration was directed to ignore the circulars which gave preference to Class I junior scale officers of four years standing or more as against temporary Assistant Engineers. An appeal filed by the Railway Administration under the Letters Patent was dismissed by a Division Bench of the High Court. Though the Division Bench dismissed the appeal on August 1, 1974, the Railway Administration did not implement the judgment but instead on December 12, 1975 amended rule 102(3), 133(3)(c) and (f) and introduced new rule 102(17) so as to expressly exclude temporary Assistant Officer [newly defined by r.

102(7) from the category of Assistant Officer and thus make him ineligible for promotion to the senior scale under r.

133 (3)(c) and (f)].

12. It appears that the status of the temporary Assistant Engineers recruited on the recommendation of the Union Public Service Commission has been the subject matter of the decisions of several High Courts. Some of them have been placed before us.

13. The relevant provisions of the Indian Railway Establishment Code may now be referred to.

14. Rule 102(3) originally defined an Assistant Officer to mean 'a Gazetted Railway Servant drawing pay on the scale applicable to Junior Scale Officers', but 'was not to include a Class II Officer'. By an amendment made on December 31, 1975, the expression was redefined and an 'Assistant Officer' now 'means a Gazetted Class I Railway Servant drawing pay in the junior scale. It does not include a Class II Officer or a temporary Assistant Officer who is not classified either as Class I or Class II'.

Prior to December 31, 1975 "Temporary Assistant Officer" was not defined but by an amendment dated December 31, 1975 "Temporary Assistant Officer" has been defined and now means "a gazetted Railway servant drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as Class II Officer".

Rule 102(13) defines a 'Railway, Servant' as meaning a person who is a member of a service or who holds a post under the administrative control of the Railway Board, including a person who holds a post in the Railway Board.

Rules 105 and 106 to the extent they are relevant are as follows:

"105. For the purpose of the rules in this Volume the railway services shall be classified as follows:- Gazetted (1) The Railway Services, Class I.

(2) The Railway Services, Class II.

Non-gazetted.

(3) The Railway Services, Class III.

(4) The Railway Services, Class IV.

(5) The Workshop Staff.

106. Establishments and categories (including probationers), falling under the services mentioned in rule 105, are shown below- Class I (1) Posts in the Railway Board;

155 (2) Directors, Joint Directors, Deputy Directors, Assistant Directors, Railway Board and Research, Designs and Standards Organisation;

Secretary, Deputy Secretary, Under Secretary and Section Officers, Grade II, Railway Board.

(3) Indian Railway Service of Engineers;

(4) Indian Railway Accounts Service;

(5) Indian Railway Traffic Services;

(6) Indian Railway Service of Mechanical Engineers;

(7) Indian Railway Service of Electrical Engineers;

(8) Indian Railway Service of Signal Engineers;

(9) Indian Railway Medical Service;

(10) Indian Railway Stores Service;

(11) Senior Revenue Establishment, Indian Railways, comprising such specialist and Miscellaneous posts as have been included in Class I e.g., Chemist and Metallurgists (Senior Scale) and Chief Cashiers (Senior Scale).

Class II Gazetted posts not included in Class I.

Note.-Temporary Assistant Officers will not be classified either as Class I or Class II.

Class III --------- * * * * * Class IV -------- * * * * * It must be mentioned here that this Note to rule 106 was not there originally but was added in 1956.

Rule 107 provides that the prescribed scale of pay admissible to Railway servants belonging to Railway Service Class I and Class II shall be as specified in appendix XIV.

156 Rule 108 may also be extracted here and it is as follows:

"108. Sanctioned strength of cadres.-Subject to any statutory provision in this regard, the strength, including both the number and character of posts of the Railway Services, Class I and II, shall be determined by the Railway Board, General Managers of Indian Railways may create temporary posts in the Railway Services, Class I and Class II, subject to such limits as may be laid down by the Railway Board.

Note.-Provided the total number of sanctioned gazetted post in any grade (Heads of Departments, Deputy Heads of Departments, District Officers, Assistant Officers are Class II Officers) of the service concerned is not exceeded, General Managers are empowered to vary solely in the public interest having regard to changes in the work and responsibilities of the posts, concerned (and not in the interest of individual officers), the distribution of posts within that grade for a period not exceeding 12 months".

Rule 109 to the extent it is relevant in this case is as follows:

"109. The cadres of the services and departments included in Railway Services, Classes I and II (other than the Medical Department and specialists posts) on Indian Railways shall be fixed in accordance with the principles stated below :- (1) Separate cadres shall be maintained for each Indian Railway.

(2) The number of permanent working posts, that is, posts required for ordinary duty on the railway, shall be first determined for each service or department and divided into the following grades :- (i) Administrative, (ii) District Officers, 157 (iii)Assistant Officers and Class II Services.

(b) * * * * (c) The number of posts to be allotted to the Assistant Officers' grade shall be calculated with reference to the total number of Administrative and District Officers' Posts, and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers' grade to the higher grade after a given period of service. For this purpose, all the administrative posts, including the general administrative posts, shall be taken into account.

(d) The rest of the posts included in (a) (iii) shall be allotted to the Class II Service.

(e) The total number of posts thus arrived at for each grade in a department shall form the permanent duty strength of each service or department.

(3) * * * * (4) * * * * Rule 112 provides that the number of posts sanctioned in each grade in a department shall in no case be exceeded without the sanction of the authority competent to create a post, either permanent or temporary in the grade.

Rule 116 prescribes that except as provided in r. 133(4) officiating promotion to the Assistant Officer's grade or to a higher grade of gazetted Railway Servants from Class II service or from the non-gazetted establishment is not permissible.

Rule 118(1) provides that the number of Gazetted Railway servants on duty in a department shall not exceed the permanent duty strength sanctioned for that department.

Rule 125 prescribes that all appointments to a Railway Service Class II shall be made by the President on the recommendation of the Union Public Service Commission from time to time in accordance with the rules framed by them.

158 Rule 129 provides that the rate of normal recruitment shall be determined by the President with reference to the sanctioned strength of a service or Department.

Rule 130 is important and may be fully extracted here.

It is as follows:

"130. Method of recruitment.-Recruitment to Class I service in the various departments of Railways shall be made through- (a) competitive examination held in India by the Union Public Service Commission;

(b) promotion of specially qualified gazetted railway servants of the Class II Service including officiating gazetted railway servants of the service or department;

(c) in the case of Transportation (Power) and Mechanical Engineering Department, by appointment of candidates as Special Class Apprentices; and (d) occasional admission of other qualified persons on the recommendation of the Union Public Service Commission.

Note.-The quota reserved for permanent promotion from Class II to Class I has been fixed at 33-1/3% of the vacancies in the Junior Scale, Class I (Senior Scale in the case of Medical Department).

Rule 131 provides that Probationers to the Railway Service Class I shall be required to undergo a period of training as may be prescribed by the President.

Rule 132 provides for recruitment to Railway Service Class II.

Rule 133 deals with promotions to gazetted posts. We are concerned with rule 133(3)(c) and (f) which to the extent relevant were previously as follows:

"133. Promotions to gazetted posts.- (1) * * * * (2) * * * * 159 (3) The General Manager may appoint- (a) * * * * (b) * * * * (c) An Assistant Officer to officiate as District Officer, provided that such a gazetted railway servant who has not passed the efficiency bar may be so appointed only, if- (i) a gazetted railway servant who has passed the efficiency bar is not available; or (ii) the vacancy is not expected to exceed three months;

(d)(e) * * * (f) substantively, an Assistant Officer to the District grade provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than ten years of total service and has been declared fit to cross the efficiency bar in the junior scale.

Note.-The period of 10 years of total service will also include the two years of training in the case of direct recruits. In respect of promoted gazetted railway servants all those placed in the Seniority list above the last direct recruit who fulfils the above condition will receive confirmation in their turn." These provisions were also amended on December 31, 1975, and they are now as follows :- "(c) an Assistant Officer to officiate in the Senior Scale provided that such an Assistant Officer who has not passed the efficiency bar may be so appointed only, if an Assistant Officer, who has passed the efficiency bar is not available;

(d) * * * * 160 (f) substantively, an Assistant Officer to the Senior Scale, provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than eight years of total service and has been declared fit to cross the efficiency bar in the junior scale.

Note.-The period of eight years of total service will also include the two years of training in the case of direct recruits. In respect of promoted gazetted railway servants all those placed in the seniority list above the last direct recruit who fulfils the above condition will receive a confirmation in their turn".

Rule 139 makes provision for the making of recruitment rules and the note to rule 139 provides that in the case of recruitment to gazetted posts, the rules should be published in the Gazette of India in the section allotted to Statutory Rules and Orders.

Rule 144 obliges every railway servant to execute an agreement with the President of India at the time of his substantive appointment and further provides that those appointed for a limited period may also be required to execute such agreements.

Rule 2003(3) defines cadre as meaning 'the strength of a service or a part of a service sanctioned as a separate unit'.

Rule 2003(22) defines a permanent post as meaning a post carrying a definite rate of pay sanctioned without limit of time.

Rule 2003(29) defines a temporary post as meaning a post carrying a definite rate of pay sanctioned for a limited time.

Rule 2003(30) defines a tenure post as meaning a permanent post which an individual Railway servant may not hold for more than a limited period.

Rule 2003(31) defines time scale of pay and whole of it may be extracted here:

"(31) (a) Time-scale pay means pay which subject to any conditions prescribes in these rules, rises by periodical increments from a minimum to a maximum. It includes the slabs of pay formerly known as progressive.

(b) Time-scales are said to be identical if the minimum, the maximum, the period of increment and the rate of increment of the time-scales are identical 161 (c) A post is said to be on the same, time-scale as another post on a time-scale if the two time scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments; so that the pay of the holder of any particular post is determined by his position in the cadre or class, and not by the fact that he holds that post".

15. The earlier narrated facts show that for quite several years it was distinctly understood by the appointing authority as well as the persons appointed that those who were appointed as Temporary Assistant Engineers on the basis of the selection made by the Union Public Service Commission did not belong either to Class I or to Class II of the Indian Railway Service of Engineers. It was understood that they would be eligible for being considered for absorption in the Indian Railway Service of Engineers Class I in an annual quota reserved for such absorption and that their seniority would be reckoned thereafter from the date of their confirmation in Class I. It was also understood that they would be eligible for being considered for promotion to officiating posts in the senior scale. This position in regard to their status was made clear, without the possibility of a shadow of doubt, in the letters of appointment issued to them and the agreements which they were required to execute. Considerable argument as advanced on the question whether a service not contemplated by the Indian Railway Establishment Code could be created and whether appointments of Gazetted Railway servants not falling in Class I or Class II and therefore falling outside the provisions of the Indian Railway Establishment Code could be made. The submission was that the Indian Railway Establishment Code did not contemplate a class of service which did not belong either to Class I or Class II, and that every gazetted railway servant had to belong either to Class I or Class II and the question whether the posts to which appointments were made belonged to Class I or not had to be determined with reference to the minimum educational qualifications prescribed for the post, the scales of pay, the functions and duties etc. It was submitted that notwithstanding the clear assertion in the letters of appointment and the agreements, the petitioners must, in law, be considered to have been appointed to the Indian Railway Service of Engineers Class I and to no other service.

16. Art. 53 of the Constitution vests the executive power of the Union in the President, to be exercised by him either directly or through 162 officers subordinate to him, in accordance with the Constitution. Art. 73(1)(a) stipulates that the executive power of the Union shall extent "to the matters with respect to which Parliament has power to make laws". "Union Public Service and all-India Services" are included in item 70 of the Union List (List I of the Seventh Schedule) enumerating the matters with respect to which Parliament has the exclusive power to make laws. The proviso to Art. 309 of the Constitution makes it competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Parliament to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union.

17. The inevitable sequitur from these Constitutional provisions is that the President, acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again if he so chooses he may not, make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Art.

309 on the matter, the executive power, under Articles 53 and 73, may not be exercised in a manner in consistent with or contrary to such Act or rule (vide B. N. Nagarajan & Ors. v. State of Mysore & Ors., State of Kerala v. M. K. Krishan Nair & Ors., etc. etc.

17a. So, the previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers. That, precisely, was what was done in 1956 and subsequent years upto 1965. The administrative expedience and exigence of the time required the creation of temporary posts outside the cadres of the Indian Railway 163 Service of Engineers. The circumstances and the reasons necessitating the creation of these posts of Temporary Engineers were fully set out in the 'letters of intent' addressed by the Railway Board to the Union Public Service Commission, the details of which have already been mentioned by us in paragraph 4 supra. The posts so created were not to be confused with the posts in the cadre of the Indian Railway Service of Engineers Class I notwithstanding that the scale of pay and the duties were to be the same. That the posts were not to be treated as in Class I or in Class II of the Indian Railway Service of Engineers was expressly mentioned and clarified in the requisitions made by the Railway Board to the Union Public Service Commission and the correspondence which ensued between the Railway Board and the Union Public Service Commission. It was also made clear in the letters of appointment and the agreements required to be executed by the persons appointed. Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various Departments of Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956 and by the President further specifying the Railway Board as the authority competent to make appointments of such temporary Assistant Officers. This is apparent from the letter No. E-55RC-16(Pt. A) dated November 22, 1956 and letter No. 5 (GF-P)56 RC-16/Pt. A dated December 12, 1956 to which we have referred in paragraph 8 supra.

18. The posts of Temporary Assistant Officers were thus created, and appointments made, under valid authority and outside the existing cadres of the Indian Railway Service of Engineers. The letters of "indent", the advertisements, the letters of appointment and the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commission were to be a source of recruitment to the Indian Railway Service of Engineers Class I. It was so understood from the inception by the persons appointed as well as the Railway Administration. In fact subsequent absorptions into the Indian Railway Service of Engineers was the sugar, if one may use such an expression, held cut to those seeking appointment as temporary Assistant Officers. Year by year a few Temporary Assistant Officers were indeed absorbed into the Indian Railway Service of Engineers after selection by a Departmental Promotion Committee and be it noted, not automatically on the basis of seniority. If Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class I, we do not see how any temporary Assistant Officer could possibly be under 164 any misapprehension that he was appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service.

19. It is not possible to accept the submission that they must be considered to have been appointed under r.

130(d) of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission, their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same. There were special reasons for recruiting Temporary Assistant Officers outside the cadres of the Indian Railway Service of Engineers and when it was admittedly and avowedly so done, and when right through such officers were merely treated as a source of recruitment to the Indian Railway Service of Engineers, it would not be permissible for us to hold that the Temporary Assistant Officers were recruited to the cadre of the Indian Railway Service of Engineers Class I.

20. One of the submissions of the petitioners was that whatever the Railway Board might be asserting now or might have asserted even from the inception, factually, the Temporary Assistant Officers were appointed to temporary posts borne on the cadre of Indian Railway Service of Engineers Class I and not to any ex-cadre posts. It was submitted that the posts to which appointments were made were not temporary posts in the sense that they were posts of short duration; they were posts, which admittedly were likely to continue indefinitely and even made permanent. The appointments could, therefore, have only been made to temporary posts borne on the cadre of the Indian Railway Service of Engineers. We do not think that there is any substance in these submissions. It is no doubt true that a cadre may consist of permanent as well as temporary posts and there may be permanent vacancies in permanent as well as temporary posts borne on the cadre. But it does not follow that appointments stated to be made to posts outside the vary service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue. We do not see how we can ignore the very purpose of scheme of recruitment of Temporary Assistant Officer which was to recruit Temporary Assistant Officers outside the existing Service and cadres to meet the anticipated requirements of certain special objects. Even in the requisition made in the prescribed form by the Railway Board to the Union Public Service Commission it was mentioned "the posts will be sanctioned shortly in connection with a number of projects". It was not mentioned that the posts were already borne on the cadre of the Indian Railway Service of Engineers. Our attention was invited to the Annual Administrative Reports where,