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PETITIONER: FEDERATION OF DIRECTLY APPOINTED OFFICERS OF INDIANRAILWAY A

       Vs.

RESPONDENT: UNION OF INDIA AND ORS. ETC. ETC.

DATE OF JUDGMENT18/06/1993

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AHMADI, A.M. (J)

CITATION:  1993 AIR 2422            1993 SCR  (3)1018  1993 SCC  (3) 364        JT 1993 (4)    32  1993 SCALE  (3)45

ACT: % Civil Services: Indian Railway Service of Engineers (Class-I)- Absorption of temporary  Assistant Engineers (Officers) into the  service- Seniority-Weightage-Half  the  length of  service  prior  to absorption  subject to a maximum of  five  years-Correctness of-Dispute  between  parties  in  representative   capacity- Applicability of Res-Judicata.

HEADNOTE: There were two parallel Services of Engineers in the  Indian Railways.  One was the Indian Railways Service of  Engineers (Class-(I)  who  were subjected to competitive  written  and personality  tests and appointed by the President of  India. The  other  Service was the  temporary  Assistant  Engineers (later  known as Temporary Assistant Officers) appointed  by the  Railway Board, on selection based (on interview  alone. In addition to the minimum educational qualifications  which was the same for both the services three years experience as Civil  Engineer  was  required for the  Railway  Service  of Engineers. The  temporary  Assistant Officers were  gradually  absorbed into the Indian Railway Service of Engineers and the Railway Board  took a decision   that they would be given  weightage in  seniority  on  the basis of half  the  total  length  of continuous  service  in working posts in Railways  prior  to their permanent absorption into Class-I subject to a maximum weightage of five years. Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative  capacity seeking relief in their seniority status. This  Court  dismissed the Writ Petitions holding  that  the classification  of  temporary, Assistant  Officers  separate from the Indian Railway Service 1019 Engineers Class-I, was neither discriminatory nor  violative of  Articles  14 and 16 of the Constitution;  and  that  the object  of recruitment, methods of  recruitment,  appointing authority and training imparted being different, no question of  their entitlement to equal rights arose fill  they  were

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absorbed into the Indian Railway Service of Engineers Class- 1.   This Court also approved ,the measures of  the  Railway Board  in regard to giving weightage of half the  length  of service as temporary Assistant Officers subject to a maximum of  five years.  Their claim for equal status for equal  pay and  equal work was also rejected. (Katyani Dayal & Ors.  v. U.0.1. [1980] 3 SCR 139). In  the present Writ Petitions and Civil Appeals filed in  a representative capacity, the relief claimed were on the same lines as in Katyani Dayal,s case.  As directed by this Court the affected parties were impleaded in their  representative capacity,  so  that the decision of this.   Court  would  he binding on every member of both the classes of employees. On  behalf of the Petitioners/Appellants, it  was  contended that  equal  pay for equal work with equality in  all  other conditions  of  service including avenues  of  confirmation, absorption,  promotion,  pension and  security  have  become inflexible postulates of service jurisprudence. The  respondents contended that what was being asked  was  a virtual  review of Katyani Dayal’s case which could  not  be permitted.   It  was  also  contended  that  principles   of constructive res judicata would bar the re agitation of  the issues  decided  in Katyani Dayal’s case if not  the  strict principles  of res judicata ; and that when the  matter  has been  settled in this particular service, its unsettling  by means of a petition under Article 32 of the Constitution was impermissible. Dismissing the matters, this Court HELD:     1.  The distinction between the two  services  was well  marked  in  Katyani Dayal’s  case  and  the  important question  of  equality was once for all  settled.   To  find fault with it, at this juncture again on the touch-stone  of equality dimension would be to unsettle a settled  position. That  venture is neither in the interest of justice  nor  in the  interest  of  service.  When there  has  been  complete absorption  of the personnel of one service into the  other, and  the seniority of the absorbers is to he  reckoned  from their date of absorption as stipulated in their  appointment letters with weightage of half the length of 1020 service  subject  to  a maximum (of  give  years,  it  would otherwise be imprudent now. at this point of time to dig  up old  issues,  The  rule  or weightage  also  appears  to  be reasonable and this is a pattern which has been noticed  and approved  In  many a Service.  Similarly  when  the  dispute raised between the Officers in a representative capacity and Engineers riot so represented, still it was a dispute raised before this Court which has been decided finally. (1026   B- D) Katyani Dayal Ors. v. Union of India & Ors,[1980] 3 SCR  139 referred to. 2.   The dispute now sought to he raised under Article 32 of the  Constitution between the Officers in  a  representative capacity  and  Engineer.%- across also in  a  representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata. (1026 D-E) 3.  It  cannot  he said that the State  is  prohibited  from creating   separate  channels  of  service.   Equally   when absorption  had  been made possible and its  pace  quickened with  weight-age,  it is difficult to find  fault  with  the scheme at this point of time to look for a substitution,  as that  would  unsettle a settled position,  established  more than a decade ago. (1026 E-F) Direct Recruit Class II Engineering Officers Association  v. State of Maharashtra & Others [1990] 2 SCC 715, followed.

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Raghunandan   Prasad  Singh  v.  Secretary,  Home   (Police) Department  Government of Bihar and Ors. [1988] Suppl.   SCC 519  & Dr. O.Z Hussain v. Union of India,[1990]  Supp.   SCC 688, referred to.

JUDGMENT: CIVIL  ORIGINAL  JURISDICTION: Writ  Petition  (Civil)  Nos. 7900-02 of 1982.                             WITH Writ Petition Nos. 837 & 853 of 1982. (Under Article 32 of the Constitution of India)                             WITH             Civil Appeals Nos. 3137-38 of 1993. 1021 From  the Judgment and Order dated 26.7.84 & 27.7.84 of  the Rajasthan High Court in D.B. Civil Special Appeal Nos. 182 & 184 of 1984.                             WITH   C.M.P. Nos. 19643-45 of 1988 & C.M.P.-No. 8272 of 1986. R.K.  Garg, Aruneshwar Gupta, R.K. Kamal and S.K. Gupta  for the   Petitioners   in  W.P.  Nos.  7900,   7902/82,   SLPS. 12682/84,830/85.  and  for the Respondent No.  4  in  CA.No. 1649/78. T.  Sridharan for the Petitioner in WPs.  Nos. 837 & 853  of 1982. M.K. Ramamurthi, and Parijat Sinha for the Appellants in CA. No. 1649/78 and for the Respondent No, 4 in WPs.  Nos. 7900- 82/82. R.   F.  Nariman and P.H. Parekh for the intervenor in  WPs. Nos. 7900-02/82. V.R.  Reddy,  Additional Solicitor  General,  V.C.  Mahajan, Ms.B.  Sunita Rao, V.K. Verma and Ms. A. Subhashini for  the Respondent in U.O.I. C.V.S.   Rao,   (NP)  for  the  Respondent   in   SLP   Nos. 12682/84,830/85. C.V.  Rappai  for the Respondent No. 14 in WP.   Nos.  7900- 02/82. The Judgment of the Court was delivered by PUNCHHI,  J.  These  are a handful  of  writ  petitions  and special leave petitions which, on grant of leave hereby, and having become appeals, can conveniently be disposed of by  a common judgment. The  fulcrum  of the controversy herein, and the  shadow  in which it works is a three-judge Bench decision of this Court in  Katyani Dayal & Ors. v. Union of India & Ors.  [1980]  3 SCR 139 decided on March 26, 1980.  Before adverting to  the facts  and  circumstances  in  which  this  cause  has  been presented to this Court it would be fruitful to give a broad outline   of  Katyani  Dayal’s  case,  in  the   immediately succeeding, paragraphs. Connected  with  Katyani Dayal’s case  were  writ  petitions filed in a represen- 1022 tative  capacity,  purporting  to  represent  all  temporary Assistant  Engineers  (on  a later point of  time  known  as temporary  Assistant  Officers)  appointed  by  the  Railway Board,  pursuant to the authority given by the President  of India,  on the recommendations of the Union  Public  Service Commission; selection based on interview alone.  There was a separate   classification  of  such   temporary   Assistant. Officers when compared with India Railway Service  Engineers (Class 1).  Direct recruits to the Indian Railway Service of Engineers  (Class 1) were subjected to  competitive  written

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and  personality tests and in the nature of things only  the very best could emerge out successfully.  On the other  hand temporary   Assistant  Officers,  (hereafter   referred   as ’Officers’ at places) were neither subjected to written  nor to a personality test but, as said before, were selected  on the  basis  of interview.  Besides the  minimum  educational qualification,  which  was the same for  both  the  services three years experience as a Civil Engineer was. additionally required for the aspirants to the Indian Railway Service  of Engineers   (Class   1)  (hereafter  referred  to   as   the ’Engineers’  at  places).   While  the  President  was   the appointing authority of the Engineers, the Railway Board was the appointing authority of the Officers.  Both the  members of  these  services  on selection  were  due  for  different courses of training earmarked separately.  There were a host of  other  factors  which  distinguished  the  quality   and character  of the personnel of the two parallel services  as elaborately detailed in Katyani Dayal’s case (supra). Between  the  years 1955 and 1964, as many as  553  officers (temporary  Assistant  Engineers)  were  appointed  by   the Railway  Board through the Union Public Service  Commission. Though in the letters of appointment the officers (temporary Assistant Engineers) and others concerned were told that six of  them, would be absorbed into the Indian Railway  Service of  Engineers  (Class  1) every year,  this  figure  in  the subsequent  years  was increased from time to time  when  in 1975, the figure as increased stood at 25 per year.  The net result   was  that  after  absorption,  107  Officers   were residually  left unabsorbed in the year 1976 by the time  of the  filing  of  the connected  writ  petitions  in  Katyani Dayal’s  case and they too were finally absorbed in 1979  by What  was  described as a "blanket order".  Before  hand  on September  17, 1965, the Railway Board had taken a  decision to the effect that the Officers so absorbed into the  Indian Service  of Engineers would be given weightage in  seniority "on the basis of half the total years of continuous  service in  working  posts  in Railways  prior  to  their  permanent absorption into Class. 1, subject to a maximum weightage  of five   years".   The  then  writ   petitioners,   describing themselves  as  members  of  the  Federation  of   Temporary Officers  Association,  Indian Railways joining  with  them, their   President,  Vice-President  and  Secretary  of   the aforesaid  Federation  as writ petitioners  approached  this Court 1023 in  a  representative  capacity  to  seek  relief  in  their seniority status. The  principal  claim  of  the  writ  petitioners  was  that Officers  were appointed to temporary posts on the cadre  of Engineers and that their seniority had to be reckoned on the basis  of  their length of continuous service,  though  they conceded that in any given year, the candidates appointed as Engineers  on  the basis of the results of  the  competitive examinations were placed above those appointed on the  basis of  selection by the Union Public Service  Commission.   The challenge  was  to  the authority of the  Railway  Board  to create  such  an unclassified  parallel  service,  something outside  the  preview of the  Indian  Railway  Establishment Board.   Notwithstanding  the  procedure  of  selection   so adopted  the  writ  petitioners  contended  that  they  were recruited  in Class I service and supported their  claim  on diverse  grounds  so  as  to  obtain  the  result  that  all Assistant  Engineers  formed  one  class  under  the  Indian Railway  Establishment  Board.  Challenge was  made  to  the classification  of personnel into those that were  recruited

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on the basis of the competitive examinations and those  that were  recruited  by  selection, but  both  by  Union  Public Service   Commission,  terming  it  as  arbitrary  and   not permissible  under the equality clause in the  Constitution. Grievance  was  voiced  that the right of  absorption  of  a handful  of temporary Engineers (Officers) every  year  into the  Service  of  Engineers was  arbitrary  and  inequituous resulting in grave injustice rendering decades of service of the Officers to a mere waste. Unfortunately  the  then writ petitioners did  not  sue  the respondents  across  in a representative capacity.   In  the fitness  of  things it would have been appropriate  for  the then  writ  petitioners to either involve  all  parties  who could  possibly have an interest or a likely affectation  in the litigation, or to sue them in a representative  capacity if not individually.  However some people did get  impleaded as parties in that case to project their. point of view  and due  to  the  nature of  dispute  those  predominantly  were members of the Indian Railways Service of Engineers Class 1. This Court while dismissing the writ petitions held that the classification  of temporary Assistant  Officers  separately from  the  Indian Railway Service Engineers of Class  I  was neither  discriminatory nor violative of Articles 14 and  16 of the Constitution, for the reason that it had nexus to the object sought to be achieved, which mainly was efficiency of service,  and that both the services had started  separately and  never became one.  This Court further viewed  that  the object  of  recruitment  being  different,  the  methods  of recruitment  dissimilar, the appointing authority being  not the  same,  the  training imparted to the  two  unlike,  the tenure of temporary Assistant Officers being precarious, and their maximum aspiration being only to be absorbed into  the Indian Railway Service of Engineers Class 1024 were  distinctive  features and, therefore, no  question  of their entitlement to equal rights arose until and unless the temporary  Assistant Officers got absorbed into  the  Indian Railway Service of Engineers Class-1.  This court also ruled that  the.  seniority of  the.absorbed  temporary  Assistant Officers  would  ordinarily reckon from the  date  of  their absorption  into  the Indian Railway  Service  of  Engineers Class I as stipulated in their letters of appointments  With regard to the time factor, this Court also took into account the  long  wait  involved in the process but  all  the  same approved  of the measures of the Railway Board in  lessening the Iona wait by giving them weightage of half of the length of  service as temporary Assistant Officers subject  to  the maximum  of five years.  And lastly this court rejected  the claim of the temporary Assistant Officers asking for  "equal status  for equal pay and equal work" leaving a ray of  hope that  such  goal might be achieved in the  not  too  distant future. The instant batch of matters is virtually on the same  lines as of Katyani Dayal’s case claiming the same relief and this time  by  the Temporary Assistant Officers  through  a  body styled  as  the Federation of  Directly  Appointed  Officers (Suppressed)  of  Indian  Railways and a few  others,  in  a representative capacity across which stand arrayed the Union of  India and the Railway Board as respondents.   When  this matter came up for hearing on 15 March, 1990 before a three- judge  Bench in which one of us (Punchhi, J.) was a  member, it  was It that the affected parties should be impleaded  in their representative capacity so as to make the decision  of this  Court binding on every member of both the  classes  of employees.   The  requisite  direction  was  thus  made  and

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carried  out.  Pursuant thereto some private respondents  on record  represent  the  entire  body  of  similarly   placed Engineers,  Thus both sides have sued and are being sued  in their representative capacity. Mr. R.K. Garg, learned counsel for the petitioners has spear headed the claim of the temporary Assistant Officers on  the basis  of the so called developing concept of Article 14  in the  years gone by, especially in the field of the right  to equality in matters relating to employment on appointment in service.  He asserts that the development of law has gone  a long  way  so  as to shed the  views  expressed  in  Katyani Dayal’s  case  justifying  demolition  of  the   demarcation between  the two services made as it was in Katyani  Dayal’s case   examining  the  question  afresh  in  the  light   of Raghunandan   Prasad  Singh  v.  Secretary,  Home   (Police) Department, Government of Bihar & Ors [1988] Supp.  SCC 519, Dr.  O.Z Hussain v. Union of India [1990] Supp.  SCC 688  at 691,  &  Direct  Recruit Class II  Engineering  of  officers Association  v. State of Maharashtra & Others [1990]  2  SCC 715 and- 1025 other  cases.   It was contended that Katyani  Dayal’s  case upholding  the  creation  of  temporary  posts  outside  the service  was  on the basis which has since been  eroded  and "equal  pay  for  equal work" with  equality  in  all  other conditions  of  service including avenues  of  confirmation, absorption,  promotion,  pension and  security  have  become inflexible  postulates  of service  jurisprudence.   On  the other hand, learned counsel for the respondents has  opposed such method contending that what is being asked is a virtual review  of Katyani Dayal’s case which is not permissible  by means  of  successive writ petitions.  Addedly it  is  urged that  principles of constructive res judicata would bar  the re-agitation of the issues decided in Katyani Dayal’s  case, if not the strict principles of res judicata.  Lastly it was urged  that  when  the  matter  has  been  settled  in  this particular  service, its unsettling by means of  a  petition under Article 32 of the Constitution is impermissible. We  were  taken through Katyani  Dayal’s  case  extensively. What we find is that the distinction and the  classification of  the  temporary  Assistant Officers and  members  of  the Indian Railway Service of Engineers Class I fell clearly  to be identified and marked.  The only method of fusion was  by means  of a phased absorption as noticed in paragraph  9  of the  Report  detailed  above.  The scheme  having  met  with approval  of  this Court cannot by mere passage of  time  be taken to have become vulnerable by subsequent exponence  and dimension of Article 14 of the Constitution.  This Court  in Katyani  Dayal’s  case  specifically  said  that  relief  of equality was being denied to the then petitioners because of the  history,  origin, and structure of  the  Services.   No opinion  was  expressed however as to the  validity  of  the given  weightage of half the length of service to  Temporary Assistant  Officers.  subject to a maximum  of  five  years, because of its being questioned elsewhere. We  are  unable  to  make any headway  or  act  in  judicial indiscipline towards widening the scope of these matters  in the  face  of  the Constitution  Bench  decision  of  Direct Recruit’s  case (supra).  Amongst the conclusions summed  up by  the Constitution Bench conclusion (J) and (K)  seal  the fate of these matters.  These are:               "(J)  The  decision  dealing  with   important               questions  concerning  a  particular   service               given  after careful consideration  should  be               respected rather than scrutinised for  finding

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             out  any  possible error.  It is  not  in  the               interest  of  service to  unsettle  a  settled               position.               (K)That  a  dispute raised by  an  application               under Article 32 of the               1026               Constitution  must  be held to  be  barred  by               principles of res judicata including the  rule               of  constructive res judicata if the same  has               been  earlier decided by a competent court  by               a judgment which became final." The distinction between, the two services was well marked in Katyani  Dayal’s case (supra) and the important question  of equality  was once for all settled.  To find fault with  it, at  this  juncture  again on  the  touch-stone  of  equality dimension  would  be to unsettle a settled  position.   That venture  is  neither-in the interest of justice nor  in  the interest   of  service.   When  there  has   been   complete absorption  of the personnel of one service into the  other, and  the seniority of the absorbers is to be  reckoned  from their date of absorption as stipulated in their  appointment matters and as held by this Court with weightage of half the length  of  service subject to a maximum of five  years,  it would  otherwise be imprudent now, at this point of time  to dig up old issues.  The rule of weightage also appears to us to  be  reasonable  and this is a  pattern  which  has  been noticed and approved in many a Service.  Similarly when  the dispute  raised  between the Officers  in  a  representative capacity  and  Engineers  not  so  represented,  in  Katyani Dayal’s  case (supra), still it was a dispute raised  before this  Court which has been decided finally.  A  dispute  now sought  to  be raised under Article 32 of  the  Constitution between  the  Officers  in  a  representative  capacity  and Engineers  across also in a representative capacity must  be held  to be barred by principles of res judicata as also  in the   rule   of  constructive  res  judicata.    The   cases aforementioned  relied  upon  by  learned  counsel  for  the petitioners/appellants  do not remove this hurdle,  however, broadly may Article 14 and 16 be viewed and expanded.  It is thus unnecessary to elaborate those cases and discover their ratio.   The  are  argument  of  learned  counsel  for   the appellant  that the State is prohibited to  create  separate channels of service and create discrimination by making  one as  an  isolated  one, and  not  providing  for  promotional avenues  reasonably, falls to the ground in view of the  bar of  re-agitation erected by Direct Recruit’s  case  (supra). Equally when absorption had been made possible and its  pace quickened with weightage, it is difficult to find fault with the scheme at this point of time to look for a  substitution at  our  end,  as that would unsettle  a  settled  position, established more than a decade ago.  We also do not see  any compelling reasons to deviate from the principles enunciated in the judgment.  At this point of time the bars erected  by Direct  Recruit’s case (supra) appear to us to have  further thickened  goading  us to refrain from the exercise  of  any undoing.  We thus leave the matter as it is. It needs mentioning that the appeals being decided instantly are  against  the  judgments and orders of  the  High  Court rejecting writ petitions of the petitioners 1027 before it on the basis of Katyani Dayal’s case (supra).   No details  of  these cases are necessary to dispose  of  these appeals for the reasons stated above. As  a result these petitions and appeals tail,  but  without any order as to costs.  In view of the dismissal of the main

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matters, no orders are necessary on all the C.M.Ps. G.N.                                    Matters dismissed. 1028