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PETITIONER: KATYANI DAYAL AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT26/03/1980

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

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

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

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

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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

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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

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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]

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    The definition  of Assistant Officer was not to be read in isolation  but should  have been  read conjunctively with Rules 105,  106 and  108. A reference to Rule 105 would show that for  the purposes  of the  rules in  the Indian Railway Establishment Code,  Railway services  were to be classified into Class  I, Class  II, Class  III, Class  IV and workshop staff. Rule  106 specified  the appointments  and categories falling under  the services  mentioned in Rule 105. Rule 108 required the  Railway Board  to  fix  the  strength  of  the Railway Services,  Class I and II. There could therefore, be no question  of an  officer not  falling within  the  class, category or  cadres specified  in rules  105,  106  and  108 claiming to  be an ’Assistant Officer’ within the meaning of that expression. A person recruited to the post of Temporary Assistant Officer  not classified  as Class  I or  Class  II Officer could  not claim to belong to the Class, category or cadre spe- 144 cified in  Rules 105, 106 and 108 and was, therefore, not an Assistant Officers  within the  meaning of  that  expression even before the 1975 amendment. [167 D-F]      (6) There  are and  there can  be no absolutes when the Court  considers   claims  to   justice  on   complaints  of inequality. The  Marxian of  a  classless  society,  however laudable that  may be, is evidently not what is sought to be achieved by Arts. 14 and 16 of the Constitution. The goal is a  limited   one.  It   is  equality  among  comparables.  A necessary,  but  not  necessarily  cynical,  implication  of equality  among   comparables  is   the  permissibility   of reasonable classification,  having nexus  with the object to be  achieved.   If  two   services  started   and  continued dissimilarly,  though  they  apparently  discharged  similar duties, they were not comparable services so as to furnish a basis for  the claim to equality. But if in the same service there were two sources of recruitment to the same service, a classification based solely on source of recruitment was not permissible. [176 E-G]      State of  Punjab v.  Joginder Singh, [1963] Supp. 2 SCR 169, 191, 192; Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185  and Mervyn Coutindo & Ors. v. Collector of Customs, Bombay and Ors., [1966] 3 SCR 600; referred to.      (7) Those  who were appointed to ex-cadre posts outside the rules  and whose  tenure was  therefore precarious could not claim  to be  treated on  the same  footing as those who were appointed  strictly in  accordance with  the rules  and posts borne on the cadre of the service. [177 F-G]      H.S. Varma  & Ors.  v. Secretary,  Ministry of Shipping and Transport  & Ors.  [1979] 4 SCC 415 @ 427, 428; referred to.      (8) The  classification of Temporary Assistant Officers separately from  the Indian  Railway  Service  of  Engineers Class I  is  neither  discriminatory  nor  is  violative  of Articles 14  and 16  of the Constitution for the reason that it had  no  nexus  to  the  object  to  be  achieved  namely efficiency of service.      [167 G-H]      The service comprising the Temporary Assistant Officers and the  Indian Railway Service of Engineers Class I started separately and  never  became  one.  The  objects  of  their recruitment were  different, the methods of recruitment were dissimilar and  the appointing  authority was  not the same. The training  that was  imparted was  also unlike.  The very tenure of  the Temporary  Assistant Officers  was precarious and their  immediate aspiration was only to be absorbed into

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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.

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

JUDGMENT:      ORIGINAL (CIVIL)  APPELLATE JURISDICTION: Writ Petition Nos. 147 to 151 of 1976.           (Under Article 32 of the Constitution)                             WITH      SPECIAL LEAVE PETITION (CIVIL) No.7905 OF 1979      From the  Judgment and  Order dated  29-8-1978  of  the Allahabad High Court, in S.A. No. 887/70.      M.C. Bhandare,  Mrs. S.  Bhandare and T. Sreedharan for the Petitioners.      L.N. Sinha,  Attorney General, Mr. M.K. Banerjee, Addl. Solicitor General,  R.B. Datar,  A.K. Ganguli, R.N. Sachthey and Miss A. Subhashini for RR 1 and 2.      F.S. Nariman,  Anil B.  Dawan, P.H.  Parekh, C.B. Singh and R. Karanjwala for RR 1 & 19.      S.C. Gupta and Ramesh Chand for RR 14.      Madan Bhatia and D. Goburdhan for RR 20.      Y.S. Chitale,  V.M. Tarkunde, and A.N. Karkhanis for RR 28 and 31.      S.D. Gupta in person for impleading RR in WP 147/76.      Girdharee Singh and S.K. Jain for the Intervener. 147      The Judgment of the Court was delivered by,      CHINNAPPA REDDY,  J.-Several hundred  Railway Engineers who should  have  been  busy  elsewhere,  building  bridges, laying or doubling tracks and so on have found themselves in the corridors  of this  Court in  pursuit of  the leaves  of career. Quite  a contingent  was present  in Court anxiously watching the proceedings and listening with expect attention to every  word that  fell from  counsel and judge. One could not help  wondering whether  this multitiered. ’multi-varne’ Service-system  was   itself  not  productive  of  a  career neurosis, destructive of the very efficiency which is sought to achieve.      2. In  this case, as in most other service matters that reach this Court, the question which arise for consideration relate to classification, confirmation, seniority, promotion etc., questions  which appear  to agitate  the minds  of the members of  all services.  Administrators  seeking  to  find solutions to  some of  the problems  very soon discover that their solutions  are no more than illusions and have created other problems.  First one party and then another party, all seek the  protection of  the Court.  The Court  is no expert administrator.    Lacking     expertise,     lacking     the administrator’s access  to information,  there  are  obvious limitations to  what the Court may be. The Court may at best attempt to  solve some  basic legal  issues. That  the Court strives  to   do  without   disturbing  the   administrative equilibrium.      3. The service with which we are concerned in this Case is the  Indian Railway  Service of Engineers, Class I. While the petitioners  claim that  they  were  appointed  to  this service  after   selection  by   the  Union  Public  Service Commission, the respondents allege that the petitioners were

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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

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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

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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

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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

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the basis  of the recommendation of the Union Public Service Commission may  be described  as Temporary  Engineers)  were identical, the  duties and  functions were the same and they occupied interchangeable posts. They further allege that, in any case, the right of absorption of six temporary Engineers only every year into the Indian Railway Service of Engineers were arbitrary and inequitous. It had resulted in such gross injustice that  two decades  of service  of several  of  the petitioners. was to be counted for nothing. 153      11.  Before   proceeding  to   consider   the   various contentions raised  on  behalf  of  the  petitioners  it  is necessary to  make a brief reference to the history, service and legal,  of one  of the  many petitioners.  Shri  Katyani Dayal was working as an Assistant Engineer in the service of the Punjab Government from 1952 onwards. He was one of those who was  selected by the Union Public Service Commission and appointed as  a temporary  Engineer in  1958. He was drawing pay in  the junior  scale. He  crossed the Efficiency Bar in 1966 and  according to  him he was thereafter entitled to be considered for  promotion to the senior scale to the post of District Officers.  He founded his claim on r. 133(3) (c) on the basis  that he  was  an  Assistant  Officer  within  the meaning of  that expression as then defined by r. 102(3). As he was  not so promoted and as it was proposed, on the basis of some  circulars, to  promote permanent  Engineers of four years standing,  he filed  a Writ Petition in the High Court of Allahabad  claiming that he was entitled to be considered for promotion  to officiating  post of District Officer. The Railway Board  opposed the  claim of  Katyani Dayal  on  the ground that he was a temporary Assistant Engineer and not an Assistant Officer and therefore, not entitled to be promoted in terms of r. 133(3)(c). The Railway Board’s contention was over-ruled by a learned Single Judge of the High Court and a direction  was   given  to  the  Railway  Administration  to consider the  claim of  the petitioner  for  appointment  in officiating vacancies  to the  posts of District Officers as soon as  vacancies arose.  The  Railway  Administration  was directed to  ignore the  circulars which  gave preference to Class I junior scale officers of four years standing or more as against temporary Assistant Engineers. An appeal filed by the Railway  Administration under  the  Letters  Patent  was dismissed by  a Division Bench of the High Court. Though the Division Bench  dismissed the  appeal on August 1, 1974, the Railway Administration  did not  implement the  judgment but instead on  December 12, 1975 amended rule 102(3), 133(3)(c) and (f)  and introduced  new rule 102(17) so as to expressly exclude temporary  Assistant Officer   [newly  defined by r. 102(7) from  the category of Assistant Officer and thus make him ineligible  for promotion  to the  senior scale under r. 133 (3)(c) and (f)].      12.  It  appears  that  the  status  of  the  temporary Assistant Engineers  recruited on  the recommendation of the Union Public  Service Commission has been the subject matter of the  decisions of  several High Courts. Some of them have been placed before us.      13. The  relevant  provisions  of  the  Indian  Railway Establishment Code may now be referred to. 154      14. Rule 102(3) originally defined an Assistant Officer to mean ’a Gazetted Railway Servant drawing pay on the scale applicable to  Junior  Scale  Officers’,  but  ’was  not  to include a  Class  II  Officer’.  By  an  amendment  made  on December 31,  1975, the  expression  was  redefined  and  an ’Assistant Officer’  now ’means  a Gazetted  Class I Railway

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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

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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.

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    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

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              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

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    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

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connection with  the affairs  of the  Union, to  make  rules regulating the recruitment, and the conditions of service of persons  appointed,   to  such   services  and  posts  until provision in  that behalf  is made by or under an Act of the Parliament to  regulate the  recruitment and  conditions  of service of persons appointed to public services and posts in connection with the affairs of the Union.      17. The  inevitable sequitur  from these Constitutional provisions is that the President, acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a  service or  to  create  posts  outside  (the cadres of)  the constituted  service. The  President (or the person directed  by him)  may, or, again if he so chooses he may  not,   make  rules   regulating  the   recruitment  and conditions of  service of  persons appointed to such service or  posts.   He  is  also  free  to  make  or  not  to  make appointments to such services or posts. Nor is it obligatory for him  to make  rules of recruitment etc. before a service may be constituted or a post created or filled. But if there is an  Act of Parliament or a rule under the proviso to Art. 309 on  the matter,  the executive  power, under Articles 53 and 73,  may not be exercised in a manner in consistent with or contrary to such Act or rule (vide B. N. Nagarajan & Ors. v. State  of Mysore & Ors., State of Kerala v. M. K. Krishan Nair & Ors., etc. etc.      17a. So,  the previous  existence of the Indian Railway Service of  Engineers and  the rules made for recruitment to that service  do not bar the constitution of another service or the  creation of  posts outside  the cadres of the Indian Railway Service  of Engineers. That, precisely, was what was done  in   1956  and   subsequent  years   upto  1965.   The administrative expedience  and exigence of the time required the creation  of temporary  posts outside  the cadres of the Indian Railway 163 Service of  Engineers. The  circumstances  and  the  reasons necessitating the  creation  of  these  posts  of  Temporary Engineers were  fully set  out in  the ’letters  of  indent’ addressed by  the Railway  Board to the Union Public Service Commission, the details of which have already been mentioned by us in paragraph 4 supra. The posts so created were not to be confused  with the  posts in  the  cadre  of  the  Indian Railway Service  of Engineers  Class I  notwithstanding that the scale  of pay  and the  duties were to be the same. That the posts  were not  to be treated as in Class I or in Class II of  the Indian Railway Service of Engineers was expressly mentioned and  clarified in  the requisitions  made  by  the Railway Board to the Union Public Service Commission and the correspondence which  ensued between  the Railway  Board and the Union  Public Service Commission. It was also made clear in the letters of appointment and the agreements required to be executed  by the  persons appointed. Though to start with there was  no Presidential  sanction for the creation of the posts  of   Temporary  Assistant  Officers  in  the  various Departments of  Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by the grant of Presidential sanction for the posts  in November  1956 and  by the  President  further specifying the  Railway Board  as the authority competent to make appointments of such temporary Assistant Officers. This is apparent  from the  letter  No.  E-55RC-16(Pt.  A)  dated November 22,  1956 and  letter No.  5 (GF-P)56  RC-16/Pt.  A dated December  12,  1956  to  which  we  have  referred  in paragraph 8 supra.

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    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

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ignore  the   very  purpose  of  scheme  of  recruitment  of Temporary Assistant  Officer which  was to recruit Temporary Assistant Officers  outside the  existing Service and cadres to meet  the anticipated  requirements  of  certain  special objects. Even in the requisition made in the prescribed form by the  Railway Board to the Union Public Service Commission it was men- 165 tioned "the  posts will  be sanctioned shortly in connection with a  number of  projects". It  was not mentioned that the posts were  already borne on the cadre of the Indian Railway Service of  Engineers. Our  attention  was  invited  to  the Annual  Administrative   Reports  where,  it  was  said,  no distinction was  made between  classified  and  unclassified service. We  do not  think that  these reports  are  of  the slightest help.  The reports  merely refer  to appointments, temporary as well as permanent, made in the gazetted service by  direct   recruitment.  Gazetted  Railway  services  must include both the Indian Railway Service of Engineers and the Gazetted  Railway   Service  constituted  by  the  temporary Assistant Officers. Therefore, by merely taking into account the number  of Temporary  Assistant Officers for the purpose of calculating  the total  number of  persons  appointed  to Gazetted Railway  Service it cannot conceivably be said that Temporary Assistant  Officers were  appointed to cadre posts in the  Indian Railway  Service of  Engineers. Our attention was  also  invited  to  the  classified  lists  of  Officers published by  the Railway Board. This list takes the case of the petitioners  no further. There is nothing in the list to indicate  that  persons  who  were  appointed  as  Temporary Assistant Officers  were appointed  to posts  borne  on  the cadre of  Indian Railway  Service of Engineers. On the other hand under  the column  "Date of  appointment to  Class"  no entry is  made against  the names  of any  of the  Temporary Assistant Officers  who had  not yet  been absorbed into the Indian Railway  Service of  Engineers. We were also referred to the  reports of  the  Administrative  Reforms  Commission where it is said "In the Railways there is a sizeable number of unclassified  posts equivalent to Junior Class I and only a small  number of them are taken each year into the regular service". This  statement does  not support  the case of the petitioners that  they were  appointed to posts borne on the cadre of  Indian Railway  Service of Engineers. Far from it. Passages from the reports of the Central Pay Commission were also read  out to  us  to  emphasize  that  the  posts  have continued  over   the  years  indefinitely.  If  posts  were initially created  and sanctioned  for short  periods, we do not  see   how  the  subsequent  continuance  of  the  posts indefinitely would  make  persons  appointed  to  the  posts members of  the regular  service, namely, the Indian Railway Service of Engineers Class I.      21. Considerable  argument was advanced on the question of the  ’status’ and  the effect  of the  ’note’ found below rule 106. It was said that the note did not form part of the rules made by the President under the proviso to Article 309 of the  Constitution and  therefore it  could not  amend the other statutory  rules. The note was neither declaratory nor explanatory and was of no affect whatever. We think that the argument regarding  the ’status’  and the effect of the note is of no real 166 relevance. The  note merely states an existing fact known to all  concerned.   It  was  known  that  posts  of  Temporary Assistant Officers  in gazetted railway service who were not to be classified ’either as Class I or as Class II’ had been

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sanctioned by  the President  who had designated the Railway Board as  the authority  competent to  make appointments  to those posts.  The note  below rule  106 merely  stated  this fact. With  or without  the note,  the  Temporary  Assistant Officers would  still not be classified either as Class I or Class II.  Their classification outside Class I and Class II was not dependant on the note but on the Presidential action in regard to the creation of the posts.      22. This  is perhaps an appropriate stage for referring to the amendments, introduced in 1975, to the Indian Railway Establishment  Code.  The  expression  ’Temporary  Assistant Officers’, which  was not  previously defined in the Railway Establishment Code,  was sought  to be defined by new clause 17 of R. 102 to mean "a Gazetted Railway Servant drawing pay on the  scale applicable  to Junior  Scale Offices  but  not classified either  as Class  I or  as Class II Officer". The expression Assistant  Officer was  redefined so  as  not  to include  a   Temporary  Assistant   Officer  who   was   not ’classified either  as Class  I or  as Class II’. Apart from the principal  submission  that  the  1975  amendments  were violative of  Arts. 14  and 16  of the  Constitution, it was submitted that the amendments were prospective in nature and did  not  affect  the  petitioners  all  of  whom  had  been appointed as  Temporary Assistant Officers long prior to the 1975 amendment. We do not think that the amendments have any effect one  way or  the other on the status of the Temporary Assistant Officers.  What  was  always  well  known  to  the Temporary Assistant  Officers and the Railway Board and what was the  inevitable result  of the Presidential sanction for the creation of posts which were not to be classified either as Class  I or  Class II,  was made  explicit in  the Indian Railway Establishment code also by the introduction of these amendments.  This  became  necessary  because  in  the  Writ Petition filed  by Katyani  Dayal, the Allahabad High Court, while appearing  to hold  that Temporary  Assistant Officers belonged neither  to Class  I nor  to Class II service, held that they  came  within  the  then  existing  definition  of ’Assistant Officer’  so as  to entitle  them  for  promotion under r.  133 of  the Indian  Railway Establishment Code. We are afraid  it was  the use  of  the  expression  ’Temporary Assistant Officer’  that has  led to considerable confusion. The expression  ’Temporary Assistant  Officer’ was coined to describe the  new post  created for  the first time in 1955. The expression  was not used to signify officers temporarily holding the  posts of  Assistant  Officers  in  the  several established  Railway  Services.  For  instance  a  Class  II Assistant Engineer 167 who is temporarily promoted to hold the post of an Assistant Engineer Class  I may  be described as a Temporary Assistant Officer but he certainly would not be a ’Temporary Assistant Officer’ appointed  to any of the posts specially created by the President which were neither in Class I nor in Class II. The word  ’Temporary’ in the expression ’Temporary Assistant Officer’  was  not  used  to  qualify  the  words  Assistant Officer.  The  whole  of  the  expression  was  intended  to describe the  particular post,  which was neither in Class I nor Class  II, which  was created  in 1955.  There would not have been  any confusion and it would have been much happier if instead  of the  expression Temporary  Assistant  Officer some other  expression such  as Special Assistant Officer or Special Assistant  Engineer had  been chosen.  We are of the view that  the Allahabad  High Court  was not  justified  in looking at  the amended definition of ’Assistant Officer’ in isolation and  concluding  that  the  expression  ’Assistant

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Officer’  included   Temporary  Assistant   Officer  because Temporary Assistant  Officer was  also  a  gazetted  Railway servant who  drew the junior scale of pay. The definition of Assistant Officer  was not  to be  read in isolation in that manner. It  should have  been read  conjunctively with Rules 105, 106  and 108.  A reference  to Rule 105 would show that for  the  purposes  of  the  rules  in  the  Indian  Railway Establishment Code,  Railway services  were to be classified into Class  I, Class  II, Class  III, Class  IV and Workshop staff. Rule  106 specified  the appointment  and  categories falling under  the services  mentioned in Rule 105. Rule 108 required the  Railway Board  to  fix  the  strength  of  the Railway  Services’   Class  I  and  Class  II.  There  could therefore, be  no question  of an officer not falling within the class, category or cadre specified in rules 105, 106 and 108 claiming to be an ’Assistant Officer’ within the meaning of that  expression. A  person  recruited  to  the  post  of ’Temporary Assistant  Officer’ not  classified as Class I or Class II  Officer could  not claim  to belong  to the Class, category or  cadre specified  in Rules  105, 106 and 108 and was, therefore,  not an Assistant Officer within the meaning of that expression even before the 1975 amendment.      23. We  now come to the principal submission made to us namely  that   the  classification  of  Temporary  Assistant Officers separately  from  the  Indian  Railway  Service  of Engineers Class I was discriminatory and had no nexus to the object to  be achieved namely efficiency of service and was, therefore,  violative   of  Articles   14  and   16  of  the Constitution.  It  was  argued  that  the  minimum  academic qualification for the posts of ’Temporary Assistant Officer’ was the  same as  that prescribed  for entry into the Indian Railway Service  of Engineers  Class I,  the scale of pay of ’Temporary Assistant Officer’ was the same as hat of a Class I Officer of Junior Scale, the functions and duties were 168 similar and  on all  matters  not  expressly  provided,  the Temporary Assistant  Officers like  Class I officers were to be governed  by the  provisions of the Railway Establishment Code and  the Rules  made  thereunder.  There  was  so  much identity  on  all  vital  and  important  matters  that  the classification of ’Temporary Assistant Officers’ outside the Indian Railway  Service of  Engineers Class I was arbitrary. It led  to all  manner of  discrimination in  the matter  of advancement  in   service,  seniority,  promotion  etc.  The unfairness  of   it  all   was  sought   to  be  graphically demonstrated by  pointing out  how  after  twenty  years  of service  Temporary   Assistant  Officers   continued  to  be Temporary  Assistant   Officers  while   Class  I   officers recruited much  later were  placed much  higher than them in order of seniority and had risen to much higher positions in the service. Another limb of the argument on the question of discrimination was  that all Assistant Officers whether they were permanent  Assistant Officers  or  Temporary  Assistant Officers  constituted   a  single   cadre  and  it  was  not permissible to  further classify  them on  the basis  of the manner  of   their  recruitment,   namely,  by   competitive examination or  by selection  by the  Union  Public  Service Commission. Part  of this submission has already been met by us and  we have  shown how  Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code.      24.  It   is  true   that   the   minimum   educational qualification for  the post  of Temporary  Assistant Officer was the  same as  that for recruitment to the Indian Railway Service of  Engineers Class  I. It is true that the scale of

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pay is  the same, and the functions and duties are the same. It is  also true  that except  to the  extent provided,  the Temporary  Assistant  Officers  were  also  subject  to  the provisions of  the Indian Railway Establishment Code and the rules made  thereunder. But,  there are  certain fundamental differences between  two classes which cannot be ignored and which  demand  attention.  To  begin  with,  the  object  of recruitment to the Indian Railway Service of Engineers is to provide  Officers   of  the  highest  quality  to  meet  the requirements of  all posts  in the  service including Senior Administrative posts.  Rule 109(2)(c)  of the Indian Railway Establishment Code,  extracted  earlier  expressly  provides that the  number of  posts to  be allotted  to the Assistant Officers’ grade  shall be  calculated with  reference to the total number of administrative and District Officers’ posts, and shall  be so  fixed as  to allow of a continuous flow of promotion from  the Assistant  Officers’ grade to the higher grades after a given period of service. For this purpose all the   administrative    posts    including    the    general Administrative posts  are required to be taken into account. On the 169 other hand  the object  of  recruiting  Temporary  Assistant Officers  was  to  meet  specific  requirements  of  various projects  with  a  prospect  of  promotion  in  a  temporary capacity to  a senior  scale post  and absorption  into  the Indian Railway  Service of  Engineers Class I. They were not to be members of the Indian Railway Service of Engineers but were to  be a  source of  recruitment to  the Indian Railway Service  of   Engineers.  Thus   the  very  appointments  of Temporary Assistant Officers were to temporary posts outside the cadre  and outside  the recruitment  rules of the Indian Railway Service  of Engineers Class I and the very nature of this  tenure   was  precarious,  whereas  Class  I  Officers recruited  on   the  basis   of  a   result  of  competitive examination  were  appointed  to  cadre  posts  strictly  in accordance with the recruitment rules.      25. Next  and equally  important,  is  the  fundamental qualitative  differences,   linked  with   the   method   of recruitment. True,  the minimum educational qualification is the same.  But, those  who are  recruited  directly  to  the Indian Railway Service of Engineers Class I are subjected to stiff and  competitive, written  and personality tests. Only the very  best  can  aspire  to  come  out  successful.  The Temporary Assistant  Officers were not subjected either to a written or  to a  personality test  but were selected on the basis  of   an  interview   by  the   Union  Public  Service Commission.  In   addition  to   the   minimum   educational qualification, three  years’ experience  as a Civil Engineer was also  prescribed. Thus  while brilliance  was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I, it was replaced by experience  in the  case of those wanting to be Temporary Assistant Officers.  Again the  appointing authority  in the case of  Indian Railway  Service of Engineers Class I is the President while  the appointing  authority in  the  case  of Temporary Assistant  Officers  was  the  Railway  Board,  no doubt, pursuant  to the  authority given  by the  President. Different courses of training were prescribed for the Indian Railway Service  of Engineers  and the  Temporary  Assistant Officers. For  the Indian  Railway Service  of Engineers the training is  an intensive  and comprehensive one designed to equip them for higher posts in the Department too, while the training for  Temporary Assistant  Engineers was a brief six months’ training  intended merely to equip them for carrying

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out the specific jobs. In the matter of terms and conditions of service,  while the  provisions  of  the  Indian  Railway Establishment  Code  are  fully  applicable  to  the  Indian Railway Service  of Engineers  Class I, those provisions are applicable to  "Temporary Assistant  Officers" to the extent there  is   no  specific   provision  in   their  letter  of appointment and agreement. 170      26.   Keeping    in   mind   these   similarities   and dissimilarities, let  us  examine  the  legal  position.  We cannot do better than to refer to the decisions cited at the Bar, not all, but a few illustrative cases.      27. In  State of Punjab v. Joginder Singh, the question arose whether  the constitution by the State of two Services consisting  of  employees  doing  the  same  work  but  with different scales  of pay  or subject to different conditions of service  such as  promotional opportunities was violative of Articles  14 and  16 of  the Constitution.  The  argument based on  the postulate  that equal  work must receive equal pay was  repelled by quoting the following observations from an earlier  decision of  the Court  in Kishori  Mohanlal  v. Union of India.:           "The only other contention raised in that there is      discrimination between  Class I  and Class  II officers      inasmuch as  though they do the same kind of work their      pay scales  are different.  This, it  is said, violates      Art. 14 of the Constitution. If this contention had any      validity, there  could be  no incremental scales of pay      fixed  dependant   on  the  duration  of  an  officer’s      service. The  abstract doctrine  of equal pay for equal      work has  nothing to  do with  Art. 14.  The contention      that Art.  14 of  the Constitution  has  been  violated      therefore, also fails." The second  postulate that  if there was equality in pay and work there  must be equal conditions of service was rejected as unsound. It was observed (at p. 191-192):           "If,  for   instance,  an   existing  service   is      recruited on  the basis of a certain qualification, the      creation of another service for doing the same work, it      might be  in the  same way but with better prospects of      promotion cannot  be said  to be  unconstitutional, and      the fact that the rules framed permit free transfers of      personnel of the two groups to places held by the other      would not  make any  difference. We are not basing this      answer on  any theory  that  if  a  government  servant      enters into  any contract  regulating the conditions of      his service  he cannot  call in  aid the constitutional      guarantees because  he is  bound by  his contract.  But      this conclusion  rests on  different and  wider  public      grounds, viz., that the government which is carrying on      the administration  has necessarily to have a choice in      the  constitution   of  the   services   to   man   the      administration and  that the limitations imposed by the      constitution are not 171      such as  to preclude  the creation  of  such  services.      Besides,  there   might,  for  instance,  be  temporary      recruitment to  meet an  exigency or an emergency which      is not  expected to  last for any appreciable period of      time. To  deny to  the government  the power to recruit      temporary staff drawing the same pay and doing the same      work as  other permanent  incumbents within  the  cadre      strength but governed by different rules and conditions      of service,  it might be including promotions, would be      to impose  restraints on  the manner  of administration

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    which we believe was not intended by the constitution.’ Examining the  facts of  the  case  before  them  the  Court noticed  that   the  two  services  started  as  independent services, the  qualifications prescribed for entry into each were different,  the method of recruitment and the machinery for  recruitment   were  different  and  they  continued  as different services  and  were  never  interpreted  into  one service. The Court said (at p. 193):           "If they  were distinct  services,  there  was  no      question of  inter se  seniority between members of the      two services,  nor of any comparison between the two in      the matter  of promotion for founding an argument based      upon Art.  14 or Art. 16(1). They started dissimilarity      and they  continued dissimilarly  and any dissimilarity      in their  treatment would  not be  a  denial  of  equal      opportunity, for  it is  common ground that within each      group there  is no denial of that freedom guaranteed by      the two Articles".      28. In State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.  a  rule  which  provided  that  only  those  Assistant Engineers who  possessed a  degree in  Engineering would  be eligible for  promotion  as  Executive  Engineer  and  which totally denied  any opportunity  for promotion  to Assistant Engineers  who   were  Diploma  holders  was  challenged  as infringing the  fundamental rights guaranteed by Articles 14 and 16  of the Constitution. Under the rules, recruitment to the cadre  of Assistant  Engineer was  to be  made by direct recruitment of  Degree holders  in Civil  Engineering or  by transfer of  degree or  diploma holders  who had  served  as Supervisors for  a period  of not  less than five years. The argument was  that degree holders and diploma holders having been integrated  into a common class of Assistant Engineers, there  was  no  justification  for  the  classification  for promotion to  the post  of  Executive  Engineer.  The  Court upheld  the   rule  and  held  that  the  classification  of Assistant Engineers into degree-holders 172 and Diploma-holders  could not be said to rest on any unreal or unreasonable  basis. Classification  made with  a view to achieving  administrative   efficiency  in  the  Engineering Service  was   clearly  co-related   to  higher  educational qualifications since  higher educational  qualifications was atleast presumptive  evidence of  higher  mental  equipment. Educational qualification  was always  recognised as  a safe criteria for determining the validity of classification. The earlier decisions of the Court in Roshan Lal Tandon v. Union of India,  and  Moryan  Coutindo  &  Ors.  v.  Collector  of Customs, Bombay  & Ors.,  were distinguished  on the  ground that they  were cases where direct recruits and promotes who were fused into a common stream of service were sought to be treated differently  by reference  to the consideration that they were  recruited from  different sources  whereas in the case before  the Court  the classification rested fairly and squarely on the consideration of educational qualifications. It was pointed out that the earlier cases did not rule out a classification on  a basis  other than  that they were drawn from  different   sources.  However,   while  upholding  the validity of  the rule Chandrachud, J., and Krishna Iyer, J., uttered words  of caution  and it  is upon  these  words  of caution that the petitioners rely. Chandrachud, J., said (at p. 790):           "But we  hope  that  this  judgment  will  not  be      construed  as   a  charter   for  making   minute   and      microcosmic classifications. Excellence is, or ought to      be, the  goal of all good government and excellence and

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    equality are  not  friendly  bed-fellows.  A  pragmatic      approach has  therefore  to  be  adopted  in  order  to      harmonize the  requirements of public services with the      aspirations of  public servants.  But let us not evolve      through   imperceptible   extensions,   a   theory   of      classification which may subvert, perhaps submerge, the      previous guarantee of quality. The eminent spirit of an      ideal society is equality and so we must not be left to      ask in  wonderment. What  after all  in the operational      residue of equality and equal opportunity?" Krishna Iyer, J., said (at p. 792):           "Mini-classifications based  on micro-distinctions      are false to our egalitarian faith and only substantial      and straightforward  classifications plainly  promoting      relevant goals  can have  constitutional  validity.  To      overdo classification is to undo equality". 173      29. In  Mohammed Shujat  Ali &  Ors. etc.  v. Union  of India &  Ors. etc.  one of  the questions  which  arose  for consideration  was  whether  the  distinction  made  between Graduate Supervisors  and non-Graduate  Supervisors and  the allocation, to  these categories, of three and one vacancies respectively out  of every four vacancies in the next higher promotional posts was violative of Articles 14 and 16 of the Constitution. After  quoting with  approval the observations of Chandrachud, J., and Krishna Iyer, J., in State of J. & K v. Trilokinath  Khosa (supra).  Bhagwati J., observed (at p. 481):      "To  permit   discrimination   based   on   educational      attainments not  obliged by the nature of the duties of      the higher  post is  to stifle the social thrust of the      equality clause.  A  rule  of  promotion  which,  while      conceding that non graduate Supervisors are also fit to      be promoted  as Assistant  Engineers, reserves a higher      quota  of   vacancies  for   promotion   for   graduate      supervisors as  against non-graduate Supervisors, would      clearly be calculated to destroy the guarantee of equal      opportunity". After saying  so much  the Court,  however, upheld  the rule which made  the differentiation  between Graduate  and  non- Graduate Supervisors  on the ground that the differentiation had not  been made  for the  first time by the impugned rule and graduate  Supervisors  had  always  been  treated  as  a distinct  and   separate  class   and  the  two  were  never integrated into  one class.  Since  the  two  categories  of Supervisors were  never fused  into one  class, it was held, there was  no question of unconstitutional discrimination on the ground of differential treatment being given to them.      30. In  S. B. Patwardhan & Ors. v. State of Maharashtra & Ors. the question concerned a formula of seniority. Direct recruits and  promotees, though  drawn  from  two  different sources, constituted,  in that  case,  a  single  integrated cadre. They  discharged identical  functions,  bore  similar responsibilities and  acquired an equal amount of experience in their  respective assignments.  Yet, the formula provided that probationers recruited during any year shall in a bunch be treated  as senior  to promotees  confirmed in that year. While the formula gave to the direct recruits the benefit of even the  one year’s  period of  training and another year’s period of probation for the purposes of seniority, it denied to  promotees   the  benefit  of  their  long  and  valuable experience.  There   was  no  intelligible  ground  for  the differentiation, bearing  nexus with  efficiency  in  public service. 174

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’Confirmation was  one of  the inglorious  uncertainties  of government service  depending neither  on efficiency  of the incumbent nor  on the availability of substantive vacancies, and it  was on confirmation that the promotees seniority was made to  depend. The  formula was  struck down by the Court. Reliance was  placed on  the decision  of the Court in A. K. Subraman v.  Union of  India, where  it had been held, while interpreting rules  relating to  Central Engineering Service Class that  though in  cases where recruitment was made from different sources  a quota  system could be validly applied, the quota  rule was  to be  enforced at  the time of initial recruitment to  the post  of officiating  Executive Engineer and not  at the  time of  their confirmation.  The Court had further  observed   that  there   was  a   well   recognised distinction between  promotion and confirmation and that the tests to  be applied  for  the  purpose  of  promotion  were entirely different  from those that had to be applied at the time of confirmation.      31. In  H. S.  Verma &  Ors. v.  Secretary, Ministry of Shipping &  Transport &  Ors.(2), the  facts  were  somewhat peculiar. Certain  persons were  directly recruited  to  the Engineering  Service   of  the   Ministry  of  Shipping  and Transport (Roads  Wing) as a result of a written competitive examination.  Certain   other  persons  were  also  directly recruited but  by interview through the Union Public Service Commission, although  such a  method of  selection  was  not contemplated  by  the  rules.  In  1966  a  rule  was  added providing for  selection  by  interview  through  the  Union Public Service  Commission. The 1966 rule was held not to be retrospective in some Writ Petitions filed in the Delhi High Court by  the persons  who had been recruited as a result of written  competitive   examination.  The  High  Court  while holding that  the amendment  was not  retrospective did  not hold that  those appointed  prior to  1966 by  the interview method were not regularly appointed. Instead, the High Court held that  they were  appointed  and  promoted  to  ex-cadre posts. In  1973 a  notification was issued by the Government to the  effect that  the Officers appointed by the interview method must be deemed to have been industed into the service as temporary  officers in 1966. Later in 1976 the Government decided to  set up  two Services  to be  called the  Central Engineering  Service   (Roads).  Group  ’A’,  comprising  of Officers appointed  by the  method of  examination  and  the other the Central Engineering Pool, Group ’A’, comprising of officers appointed  by the  method of interview. Officers of both the  services were  eligible to  be promoted to certain posts called "isolated posts". Appointments to the ’isolated posts’ were  to be  made by  selection or  promotion, as the case may be, on the recommendation of a Departmental Pro- 175 motion Committee  from an  integrated list of officers to be drawn up  on the  basis of  the length  of their  continuous service in  their respective  grades. The officers appointed by the  method of  interview assailed  the rules  contending that though  they were  appointed to their posts long before the  officers   appointed  by   the  method  of  competitive examination, they  would rank  much below  the latter in the list  of   seniority  and   would  consequently   be  denied promotional opportunities  to higher posts. Having regard to the very  complicated nature  of the  facts, the Court after discussion  with  the  learned  counsel  appearing  for  the various parties and the Government made an order, which they thought was  best and  just in  all the circumstances of the case. While issuing the directions certain observations were made. It was said (at p. 427):

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         "....We are  unable to suggest the contention that      persons  holding   similar  posts  and  having  similar      responsibilities to  discharge can  be classified  into      different categories  for the  mere reason that some of      them were  recruited directly  by the  interview method      and some  were recruited  directly on  the result  of a      competitive examination.  Were it  permissible to  make      such classifications,  ingenuity may suggest the nature      of curriculum  in  different  years  as  the  basis  of      classification. If  subjection to  different  kinds  of      tests  as   a   condition   of   eligibility   produces      qualitative  difference   in  the  ability  of  persons      recruited to  similar  posts,  it  may  perhaps  become      necessary to  limit the  promotional opportunities,  in      regard to  the relatively  higher posts, to those whose      abilities are  remarkably higher.  But, it  is nobody’s      case and  the Government has made no grievance that the      petitioners who  were appointed by the interview method      are in  any way  inferior  in  ability,  efficiency  or      educational qualifications  to those who were appointed      after a  written competitive examination. In the matter      of experience  too,  the  petitioners  are  in  no  way      inferior to the contesting respondents". The Court however, took care to add:           "Though classification  which proceeds  merely  on      the basis  that certain  persons were  recruited  after      going through  one test  and certain others after going      through another  test would  be unscientific, it cannot      be said on the facts of the instant case that there can      be no  valid basis or justification for classifying the      various  officers  of  the  Roads  Wing  into  separate      categories. As we have stated earlier, 176      the appointments of some of the petitioners and some of      the respondents  were made  in violation  of the  rules      which were  in force  at the  relevant time.  It is  in      respect of  that class  of persons  that the Delhi High      Court was  driven to  hold that  they must be deemed to      have been  appointed to  ex-cadre posts.....  But,  the      fact remains  that persons  who were appointed contrary      to the rules but to ex-cadre posts were taken initially      for purposes  of certain  projects  to  which  we  have      already referred. Their precarious tenure was continued      from  time   to  time   but  that   will  not   furnish      justification for  treating them on the same footing as      others  whose   appointments  were   made  strictly  in      accordance with  the rules  and who  were appointed  to      posts borne  on the  cadre of  the Central  Engineering      Service. A  division of  these two  classes of officers      into separate categories will remove possible injustice      to those  who were  appointed to  cadre posts  in  that      their promotional  opportunities will not be blocked or      hindered by  ex-cadre officers  who were recruited on a      large  scale  to  meet  an  urgent  necessity.  Such  a      classification will  also minimise  the injustice which      would otherwise  have been  caused to  those  who  were      appointed to ex-cadre posts".      We have  referred, without  comment, to  a few  earlier decisions of  this Court  and  quoted  the  observations  of learned Judges therein. These decisions and the observations extracted therefrom  illustrate and emphasise that there are and there  can be  no absolutes  when we  consider claims to justice on complaints of inequality. The Marxian ultimate of a classless  society,  however  laudable  that  may  be,  is evidently not  what is  sought to be achieved by Articles 14

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and 16 of the Constitution. The goal is a limited one. It is equality among comparables. A necessary, but not necessarily cynical, implication  of equality  among comparable  is  the permissibility of  reasonable classification,  having  nexus with the  object to be achieved. So, it was said that if two services started  and continued  dissimilarly,  though  they apparently  discharged   similar  duties,   they  were   not comparable services  so as  to furnish a basis for the claim to equality  (State of  Punjab v.  Joginder Singh)  (supra). But, if  in the  same service  there  were  two  sources  of recruitment to the same posts, a classification based solely on source  of recruitment  was not  permissible (Roshan  Lal Tandon v.  Union of  India, and  Mervyn Coutinda  & Ors.  v. Collector of  Customs, Bombay & Ors.) (supra). This was also the principle  of the  decision in  S. B.  Patwardhan & Ors. etc. etc.  v. State  of Maharashtra & Ors. (supra). Even so, Chandrachud, J., Krishna Iyer, 177 J., and Bhagwati, J., had to recognise, even if reluctantly, that  even   among  the  members  of  the  same  service,  a classification  based  otherwise  than  on  mere  source  of recruitment such  as educational  qualification was at times permissible. But  necessary words  of caution against making ’minute  and  micro-cosmic’  classifications  were  uttered. (State of  Jammu & Kashmir v. Trilokinath Khosa, (Supra) and Mohammad Shujat  Ali &  Ors. etc.  v. Union  of India & Ors. etc. (supra).  Chandrachud, J.,  however drew  the line when among members  of the  same  service  a  classification  was sought to  be made  between those  who had been recruited on the basis  of results of a competitive examination and those who had  come in by the method of interview. But, here again he felt  constrained to say that those who were appointed to ex-cadre posts  outside  the  rules  and  whose  tenure  was therefore precarious  could not  claim to  be treated on the same  footing  as  those  who  were  appointed  strictly  in accordance with the rules and to posts borne on the cadre of the service  (H. S.  Verma &  Anr. v. Secretary, Ministry of Shipping & Transport & Ors.) (supra).      If we  now look  at the facts of the case before us, we find that  the service  comprising the  Temporary  Assistant Officers and the Indian Railway Service of Engineers Class I started separately  and never  became one.  The  objects  of their recruitment  were different  as explained earlier, the methods of  recruitment were  dissimilar and  the appointing authority was  not the  same. The training that was imparted was also  unlike. The very tenure of the Temporary Assistant Officers was  precarious and  their immediate aspiration was only to  be absorbed  into the  Indian  Railway  Service  of Engineers class I. These distinctive features marked out the Temporary Assistant  Officers  as  a  Class-apart  from  the Indian Railway  Service of  Engineers Class  I and therefore there was  no question  of entitlement  of equal rights with the latter.  Of course,  once they  were absorbed  into  the Indian Railway  Service of  Engineers they would be entitled not to  be treated  differently thereafter.  Their seniority would  ordinarily   be  reckoned  from  the  date  of  their absorption into  the Indian Railway Service of Engineers, as promised in  their letters  of appointment.  No doubt  these officers merited  something more than the ’long wait’ at the portals of  the Indian  Railway Service  of  Engineers.  The Railway Board  however, appears  to have  tried to  make the ’long wait’  a little  less tedious by giving them weightage of half  of their  length of  service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing  about   the  validity   of  such  weightage  as  we

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understand it is in question elsewhere.      Though we  are denying  the claim of the petitioners to equality because  of the  history, origin,  and structure of the Services and the 178 existing legal  position in relation thereto, we do not wish to  be   understood  as  saying  that  there  is  any  thing ’doctrinaire’ in  the principles  of ’equal  pay  for  equal work’ and  ’equal status for equal pay and equal work’. They are not  goals to  be scoffed  at. It  may be  that  in  the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of  cynicism, that these goals will be achieved in the not too distant future.      All the  Writ Petitions  and applications for the grant of Special  Leave are  dismissed but without any order as to costs. S.R.                                    Petitions dismissed. 179