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PETITIONER: G.C. GUPTA & ORS.

       Vs.

RESPONDENT: N K. PANDEY & ORS.

DATE OF JUDGMENT08/12/1987

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) RAY, B.C. (J)

CITATION:  1988 AIR  654            1988 SCR  (2) 185  1988 SCC  (1) 316        JT 1987 (4)   593  1987 SCALE  (2)1314  CITATOR INFO :  RF         1989 SC 278  (21)

ACT:      United Provinces  Service of  Engineers (Buildings  and Roads Branch) Class Il Rules 1936: Rules 3(b). 5(ii), 17 and 13-Engineers-Seniority and promotion-’Member of service’-Who is-Seniority to  be determined  from date  employee  becomes ’member of service’.      Constitution of  lndia  1950:  Articles  226  and  136- Service matters-Inordinate  and unexplained delay-Relief not to be  granted-Division Bench  deciding that case was barred by laches  and delay-Such  decision cannot  be  reversed  by another Division  Bench of  same  High  Court  treating  the matter   as   res   integra-Doctrine   of   stare   decisis- Applicability of.

HEADNOTE: %      From the  year 1942-43,  two vacancies  in  the  United Provinces Service  of Engineers,  both in  the Buildings and Roads as well as in the Irrigation Department, were reserved for students  of the  Thomson College  of Civil Engineering, Roorkee who  stood first and second in order of merit in the final examination of the degree course. These two guaranteed posts were  reserved by a Notification dated August 31, 1942 issued by the then Provincial Government under Rule 6 of the United Provinces  of Engineers  Buildings and  Roads  Branch Class II  Rules, 1936. This reserved quota of two guaranteed posts was later on increased by the Government to four posts each year in each of the two branches. This system of direct recruitment of  merit scholars was, however, discontinued by another Notification dated June 22, 1950.      By a  G.O. dated  April 19,  1950 the  State Government settled  the   principle  that   persons  appointed  to  the guaranteed posts  every year as Engineer students would take their  seniority   over  persons   appointed  as   temporary Assistant Engineers in that year. By a subse- 186 quent G.O.  dated June 22, 1950 the Government intimated the Chief Engineer,  Building and  Roads, that engineer students who were  appointed to  the guaranteed  posts  of  temporary

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Assistant Engineers  and working  in the Buildings and Roads Branch be  absorbed. In  the existing permanent vacancies or those  which  might  arise  in  the  future.  By  an  office Memorandum dated  December  7,  1961  the  State  Government brought a  change in  the method of recruitment of Assistant Engineers in  the U.P.  Service of  Engineers  Building  and Roads  Branch,   i.e.  direct   recruitment  by  competitive examination through  a Public  Service Commission  from  the year 1961.      The respondents  in the appeal (petitioners in the writ petition) were  initially appointed  as temporary  Assistant Engineers in  the U.P.  Service of  Engineers (Buildings and Roads Branch)  by the  Chief Engineer,  PWD between  1947-48 subject to  the final approval of the Government. These were subsequently approved  by the  Government during  1948-49 in accordance-with the  provisions of  Rule 5(i)  of the Rules. Thereafter,  on   January  20,   1950  the   Government   in consultation with  the Public  Service Commission  confirmed these provisional  appointments and  these respondents  also passed the  requisite test held by the Government. They were confirmed as  permanent  Assistant  Engineers  in  permanent posts in  the cadre  during 1956-58  and the  date of  their confirmation was fixed as April 1, 1956.       The  appellants in the appeal (respondent Nos. 3-5 and 7 in  the writ  petition) were  appointed between 1951-52 as temporary Assistant  Engineers against  the guaranteed posts and  after   completion  of  the  probationary  period  were confirmed in  1955, vide  Gazette Notification dated October 11, 1955.       Seniority  of Appellants 1 to 4 was fixed earlier from April 1,  1955 whereas  seniority of Respondents 1 to 12 was fixed below them from 1956 treating the date of confirmation in the  service as the date of their becoming members of the service.        The  respondents  filed  representations  before  the Government  in   1959-60   for   re-determination   of   the confirmation  as   well  as  conseqential  determination  of seniority of  the  petitioners  vis-a-vis  the  respondents. Their claim was they having been appointed as Assis- 187 tant Engineers.  though temporarily, they became ’members of the Service’  earlier than  the appellants  and as such they were entitled  to be  placed above  the  appellants  in  the seniority list.  In 1960-61 the appellants had been promoted as appellants  Executive Engineers on the basis of seniority and record of service. However, respondents Nos. 1 to 12 who later  on   were  also  promoted  as  Officiating  Executive Engineers never  filed  any  representations  qua  Executive Engineers and  the seniority  of the appellants as Executive Engineers remained unchallenged.      It was  only on  May 4,  1970 after a lapse of 15 years that  the  respondents  filed  a  petition  under  Art.  226 challenging the  order dated  October l l, 1955 by which the appellants were confirmed with effect from April 1, 1955 and the consequential  determination of  the inter  se seniority between direct  recruits and  promotees by  the orders dated July 20, 1956 and May 29, 1961.      A Single Judge of the High Court dismissed the petition holding that  the petitioners were guilty of laches and this was upheld  by a  Division Bench  in appeal  by its Judgment dated October  26, 1971.  The Division Bench, however, under an  impression   that  the   representations  made   by  the petitioners in regard to their seniority were still pending, observed  that  there  was  no  reason  to  think  that  the Government will not decide them fairly and in accodance with

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law.      Factually there  was no  representations except one (by D.K. Laraiya  a temporary  Assistant Engineer appointed to a guaranteed post)  that  was  pending  but  pursuant  to  the observations of  the Division  Bench, the Government invited representations from all the aggrieved persons.      The petitioners accordingly made representations in the matter of  refixation of  their inter  se seniority  and the Government by its order dated June 29, 1973 rejected all the representations  stating  that  the  question  of  inter  se seniority of  Assistant Engineers  had been  finally settled and could not be reopened.      The respondents  thereupon filed  a fresh writ petition before the 188 High Court  and a Division Bench of the High Court this time by its  judgment dated  May 6,  1981 directed  issuance of a writ in  the nature  of  certiorari  quashing  the  impugned seniority  list  and  a  writ  in  the  nature  of  mandamus directing the  State Government  to redetermine the inter se seniority of  Assistant Engineers  in the  U.P.  Service  of Engineers Buildings and Roads Branch Class II.      Allowing the Appeal, the Court, ^      HELD: [Per A.P. Sen, J. Concurring] Temporary Assistant Engineers were  entitled to  the benefit  of their seniority reckoned according  to the  date of the order of appointment to the  Service in  terms of  r. 23  of the United Provinces Service of  Engineers (Buildings  and Roads  Branch)  Rules, 1936, w.e.f.  the date  of their absorption into the Service by the  Government in  consultation with  the Public Service Commission  i.e.  from  the  date  from  which  they  became ’Members of  the Service’  within the  meaning of r. 3(b) of the Rules. [221 C-D]      Ashok  Gulati  v.  B.S.  Jain,  [1986]  Supp.  SCC  597 followed. Baleshwar  Das v.  State of  U.P. [1981]  1 SCR 44 1980 4 CC 226; N.K. Chauhan c. State of Gujarat, [1977] 1 SC R 1037  and S.B. Patvardhan v. State of Maharashtra, [1977]3 SCR 775, referred to.      2(a) When  the decision  of the  earlier Division Bench was arrived  at keeping  in view  all the aspects and it was held  that  the  claim  for  re-determination  of  inter  se seniority between direct recruits and promotees could not be agitated after  a lapse of 16 years the later Division Bench erred in proceeding upon the basis that the matter was still res integra. 1230F      2(b) Inordinate  delay is  not merely  a factor for the Court to  refuse appropriate  relief  but  also  a  relevant consideration for not unsettling settled things. [231B]      Malcom Lawrence  Cecil D’Souza v. Union of India & Ors. [1975] Supp.  SCR 409;  R.S. Makashi  & Ors. v. I.M. Menon & Ors. [1982]  2 SCR 69; K.R. Mudgal v. R.P. Singh, 1986 4 SCC 531 and 189 Rabindra Nath  Bose v.  Union of  lndia, [19701  2 SCR  697, referred A to.      3. Respondents  Nos. 1  to 12  were disentitled  to any relief under  Art. 226 of the Constitution due to inordinate delay and  laches. If the judgment of the High Court were to be sustained  after a lapse of nearly 32 years, it cannot be gainsaid that  the entire  structure of  the  administrative set-up of  the U.P.  Service of Engineers, Buildings & Roads Branch would be upset. [232E]      4. It  is still  open to  the Government  to grant  the necessary relief  to the  sole respondent  at present in the

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service others  having retired.  If he is found suitable for promotion  to   a  higher   post,  without   disturbing  the appointment, promotion  and confirmation  of the appellants, by creation of a supernumerary post. [232G-Hl      5. In  legal matters,  some degree  of certainty  is as valuable a  part of  justice as  perfection. One  reason for consistency is that people often regulate their conduct with reference to  existing rules,  which makes  it important for Judges to  abide by  them. Innovations can be unsettling and lead to a loss of confidence. [230E]      Dias Jurisprudence 4th Edition p. 286.       6.  An earlier decision may be over ruled if the Court comes to  the conclusion that it is manifestly wrong and not upon a  mere suggestion  that if the matter was res integra, the Court  on a  later occasion  would come  to a  different conclusion.[230E]      7. It cannot be doubted that an unlimited and perpetual threat of  litigation leads to disorder, sense of insecurity and uncertainty.  May be, there may have been isolated cases of hardship,  but there  must  be  some  reservations  about limitation on  the Court’s  power in  the  public  interest. Obvious considerations  of public  policy make  it  a  first importance  that  the  person  aggrieved  must  take  action requisite effectively  to assert  his right  to that  end so that if  the contention  can be  justified,  the  Government service may be disturbed as little as possible.[230H;231A-B] 190      Per B.C.  Ray, J:  The  date  of  confirmation  of  the petitioners Nos. 1 to 12 as permanent Assistant Engineers in the permanent  posts of  Assistant Engineer  in  the  United Provinces Service of Engineers (Buildings and Koads Branchl, Class 11, was fixed at 1.4.1956. Vide G.O.. dated 29.5.1961, the  orders  for  inter  se  seniority  exclusively  of  the petitioners Nos.  l to  12 vis-a-vis 39 others including the opposite parties  Nos. 8  to 13  who were  all confirmed  as permanent  Assistant   Engineers,   were   issued   by   the Government. [198A-B]        The  Government,  by  a  Gazette  Notification  dated 11.10.1955,  confirmed  the  appointments  of  the  opposite parties Nos.  3 to  5  and  7  in  the  permanent  posts  of Assistant Engineer with effect from April 1, 1955. By office memorandum dated  20.7.1956, the  Government fixed the inter se seniority  of opposite  parties Nos.  2 to 7 alongwith 18 other   officers    who   were    confirmed   as   Assistant Engineers.[199E-F]        Aggrieved   by  the  order  of  confirmation  of  the respondents Nos.  2 to 7, petitioners Nos. 1, 4, 6, 7 and 11 made representations  to the Government for re-determination of the  confirmation and  consequential determination of the seniority of  the petitioners  vis-a-vis the respondents. As no action was taken by the Government on the representations above-said, the  petitioners Nos.  6, 7  and 11 filed a writ petition in the High Court in 1970, challenging the order of confirmation of  the respondents  and consequential fixation of seniority  on its  basis. The writ petition was dismissed on the  sole ground  of inordinate delay and laches. Special Appeal against  the order  of the  High Court filed before a Division Bench  of the  High Court  was also  dismissed with observations and a direction to the Government to dispose of the representations  of the  petitioners. The  Government by its order  dated 29.6.1973, rejected, on the ground of delay and laches,  all the  representations  against  fixation  of seniority, whereupon  the  petitioners  filed  another  writ petition,  claiming  relief  of  re-determination  of  their seniority  in  accordance  with  the  rules,  governing  the

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services of  the United Provinces Service of Engineers Class II (Buildings  and Roads  Branch),  as  there  had  been  no determination of  inter se  seniority of the petitioners and the respondents according to rule 23 of the United Provinces Service of  Engineers (Buildings  and Roads Branch) Class II Rules, 1936. The High Court, by its judgment and order dated May 6, 1981, allowed 191 the writ  petition in  part, issuing a writ in the nature of Certiorari  quashing   the  gradation   or  seniority  lists (annexures 1,  2 and 28 to the writ petition), and a writ in the nature  of mundane,tc  commanding the opposite party No. 1, the  State (Government  to prepare a fresh seniority list in accordance with law in the light of the observations made in the judgment, and to take consequential steps thereafter. Aggrieved by  the decision of the High Court, the appellants appealed to this Court by special leave. [199G-H; 200A-G]      The vital  question that  required to  be considered in this appeal  was what  was the yardstick or standard or norm for determination  of the  seniority of  the respondents who had  been   appointed  temporary  or  officiating  Assistant Engineers against  temporary posts  of the  United Provinces Service of  Engineers (Buildings and Roads Branch) Class II, as well  as  toppers  from  the  Thomson  College  of  Civil Engineering who  were directly  appointed some  time in 1950 and 1951  on probation  against the reserved temporary posts and confirmed  immediately after the expiry of the period of probation   against   the   permanent   posts   before   the confirmation of  the temporary Assistant Engineers recruited from the  Thomson College  of Engineering  some time between 1948 and 1950 [205B-D)      The  petitioners   in  the   writ  petition   who  were respondents  in   the  appeal,   were  initially   appointed temporary Assistant  Engineers subject to the final approval of the  Government by  the Chief  Engineer, P.W.D.,  between 1947 and 1948. Undoubtedly, these appointments were approved by the  Government between  1948 and 1949 in accordance with the provisions  of Rule S(i) of the United Provinces Service of Engineers  (Buildings and  Roads Branch)  Class 11  Rules 1936. Thereafter,  the Government,  in consultation with the Public  Service   Commission,  confirmed   the   provisional appointments  of  the  petitioners  as  temporary  Assistant Engineers  and   these  petitioners   had  also  passed  the requisite tests  held by the Government. They were confirmed vide notifications dated 7.11.1956, 19.4.1957 and 14.5.1958. The date  of confirmation of all these petitioners was fixed as 1.4.1956.  The respondents  Nos. 3 to 5 and 7, appellants in the  appeal, were  appointed between  1951  and  1952  as temporary Assistant  Engineers against  guaranteed posts  on probation and  after completion  of the  probationary period they were confirmed in 1955. 192 Seniority of  these appellants Nos. 1 to 4 was fixed earlier from 1.4.1955, whereas the seniority of the respondents Nos. 1 to 12 was fixed below them from 1956, treating the date of confirmation in  the service  as the  date of their becoming members of the service. [206FH; 207A-C]      On  a  consideration  of  the  letters  of  provisional appointments issued  by the  Chief Engineer, P.W.D., as well as the  sanctions  accorded  to  such  appointments  by  the Government thereafter and confirmation of the service of the temporary Assistant  Engineers in  1950 after  obtaining the approval of the Public Service Commission and also after the passing of  the tests by the respondents as provided in Rule 18 of the said Rules, it could not but be held that they had

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become appointed in a substantive capacity against temporary posts of  the cadre  of Assistant Engineers and as such they had become  members  of  the  service  since  that  date  in accordance with  the provisions  of Rule  3(b) of  the  said Rules.  The  argument  that  their  appointment  being  made against temporary  posts and not against permanent posts and not on  probation as  well as  their not being confirmed and their  confirmation   not  being   notified  in  the  United Provisions Gazette before 1956, they were not entitled to be treated as  members of  the service,  being appointed in the substantive capacity,  could  not  be  sustained  under  any circumstances. Rule  4 of  the Service  Rules clearly states that the  cadre of  Assistant Engineers  will comprise  both permanent and  temporary posts and as such the argument that unless and until the respondents were appointed on probation against permanent posts and unless they were confirmed, they could not  be treated  as members  of the service, is wholly untenable. One  can be  a member  of the  service if  one is appointed in  a substantive capacity as distinguished from a fortuitous appointment  or on appointment for a fixed tenure or on  a purely  temporary basis against a temporary post of an Assistant  Engineer in  the cadre.  Rule 4  of the  Rules provides that  the Government may, subject to the provisions of Rule  40 of  the Civil  Services (classification, Control and Appeal)  Rules 1930,  increase the strength of the cadre by creating  permanent or  temporary posts from time to time as may  be found  necessary. So,  a cadre post may be either permanent or  temporary and  if  an  engineer  is  appointed substantively to  a temporary  post or  a permanent post, he becomes a member of the service. Therefore, merely because a Government servant  has been  appointed to  a temporary post after fulfilment  of all  the requirements  of the Rules for regular appointment,  including consultation with the Public Service Commission, he 193 cannot  be   said  to  be  appointed  substantively  in  the temporary post  of the  cadre and  he cannot  be said  to be treated to be not a member of the service under Rule 3(b) of the Rules  for the  purpose of  determination  of  seniority under Rule  23 of the Rules on the mere plea that he has not been appointed against a permanent post on probation; such a contention is  not tenable. In this case, as already stated, though initially  the appointments of these respondents were not appointments  in accordance  with the Rules as they were appointed not  by the  Government but by the Chief Engineer, yet,  after  the  approval  of  their  appointments  by  the Government,  and  also  confirmation  of  their  provisional appointments by  the Government  after the  respondents  had passed all  the requisite  tests for  confirmation, it could not be  questioned  that  these  respondents  had  not  been appointed in  a substantive  capacity as  they had  not been confirmed  by   the  Government  prior  to  1961  and  their confirmations had not been published in the U.P. Gazette. It is pertinent  to mention  that for  an appointment  to be an appointment in  a substantive  capacity, it is not necessary that the  appointment should be made to a permanent post. If the appointment is made to a temporary post of long duration in a  department, having  both permanent and temporary posts of a quasi-permanent nature, there is nothing to distinguish the quality  of service  between the  two. [208F-H;  209A-C; 210B-H; 211A-Bl      There  was  no  rational  or  legal  justification  for preventing  the  respondents  from  having  their  services, rendered from  the date  they were appointed in the cadre of Assistant Engineers  in a substantive capacity, reckoned for

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determination of  their seniority  in service,  on the  mere ground that  no order of confirmation had been issued by the Government, as  required under  Rule 19  of the  Rules  even though all  the essential  requirements for  being confirmed had  been   clearly  fulfilled   by  the   respondents;  the respondents  had   been  duly  appointed  in  a  substantive capacity in  the cadre  of the  service by the Government in consultation  with   the  United  Provinces  Public  Service Commission, as  required under Rule 5(iii) of the said Rules as  well   as  after   fulfilling  the   other  requirements stipulated in  Rule 19  of the Rules in 1950. The point from which service  is to  be counted  is the commencement of the service by  the Assistant Engineer which might not have been a permanent  appointment in  the  beginning,  and,  in  that sense, might  still be  temporary but for all other purposes has  been  regularised  and  is  fit  to  be  absorbed  into permanent post as and when it is vacant. [211G-H; 212A, D-E] 194      The cadre  of the  service of the Engineers, as already held, consisted of both temporary and permanent posts and as such  there   can  be   substantive  appointment  against  a temporary post of the cadre in accordance with provisions of the Service Rules. Once a Government servant is appointed in a substantive capacity against a temporary post of the cadre after due  observance of the requirements as provided in the Rules, he  will be  deemed to  be a member of the Service in accordance  with   the  provisions  of  Rule  3(b)  and  his seniority in  service shall  be determined  from the date of the order of appointment to the service notwithstanding that no order of confirmation has been made and there has been no publication of  the order  of confirmation  in the  official gazette. The  respondents had  been appointed temporarily in an  officiating  capacity  as  Assistant  Engineers  against temporary posts and those temporary posts had been continued for years  together and  the Government  had duly sanctioned their appointments.  The respondents had thus become members of the  United Provinces Service of Engineers (Buildings and Roads Branch)  Class II at least from the date they had been confirmed in  the service  by the Government order issued in May, 1950,  and they  were entitled  to have their seniority reckoned from that date when they had become regular members of the  service after  fulfilling all  the  requirements  of Rules 18  and 19  of the  said Rules.  There is the specific Rule 23,  said to  be the "mariner’s compass" in determining the seniority  of the members of the service, which provides for determination  of seniority  from the  date a person has been substantively  appointed and has become a member of the cadre of  service  of  Assistant  Engineers  in  the  United Provinces Engineering  Service (Buildings  and Roads Branch) Class II.[214B-G; 217F-G]      on  a   due  consideration   of  the   relevant  Rules, particularly, Rules  3 (b)  and 23  of  the  Rules,  it  has already been  held that  when an employee has been appointed substantively to  a temporary  post in  the cadre of service and has  become a  member of  the service  of the  Assistant Engineers in  the United  Provinces Engineers  Service under the United  Provinces Service  of Engineers  (Buildings  and Roads Branch)  Class II Rules, his seniority will be counted from the  date of  his becoming  a member of the service. It does not  matter whether  he has  been appointed against the permanent post  and has  been duly  confirmed in  that post. However the  respondents (Petitioners  in the writ petition) could not  be given any relief by directing, redetermination of the seniority of the respondents as well as the 195

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appellants on  The ground  of unusual  laches and delay. The appellants Nos.  1 to  4 were  confirmed in  1955 and  their seniority was determined by the Government order of July 20, 1956, The  writ petition  which gave rise to this appeal was moved  in   1973,  challenging   the  determination  of  the seniority of  the appellants.  At that  time, the appellants Nos. 1 to 4 were officiating as Superintending Engineers and the  respondents   Nos.  2   and  3   were  officiating   as Superintending Engineers  but were  junior to  all the  four appellants,  and  respondents  1  and  4  to  12  were  then Executive Engineers.  At present,  the appellants  Nos. 1, 2 and 3 are permanent Superintending Engineers and officiating as Additional Chief Engineers. The Appellant No. 4 is also a permanent Superintending  Engineer. At this juncture, if the seniority of  these appellants  vis-a-vis the respondents in the appeal is directed to be determined, it will create much administrative difficulties  and would  amount to  depriving the appellants  of their  valuable rights which have accrued to them.  This Court in Rabindra Nath Bose and Ors. v. Union of India and Ors.J [1970] 2 SCR 697 observed that the attack on the  seniority list  prepared on  the basis  of the  1952 rules 15  years after  the rules were promulgated and effect given to  the seniority  list prepared  on August  1,  1953, should not  be allowed  because of  the inordinate delay and laches in  challenging the  rules. Similar observations have been made  by this  Court in  many other  cases.   [1218B-H; 219A-Dl]      The challenge  to the  seniority of  the appellants  in this case, determined by order dated July 20, 1956, was made and relief  sought of  re-determination of  the seniority in 1973 i.e. after nearly 17 years. This could not be permitted as it  would amount  to unjust  deprivation of the rights of the appellants  which have  accrued to them in the meantime. Considering all the aspects, it would be just and proper not to give  any relief  to the  respondents on  the  ground  of inordinate delay  and laches  in  challenging  in  1973  the seniority  list   made  in   July,  1956.   Out  of  the  12 respondents, 11  were reported to have already retired. Only one respondent  was in  service. In these circumstances, the cause  of   justice  would  be  served  if  the  authorities considered the  case of  the said  remaining respondent  for promotion in accordance with law. [220C-D,E,F-G]      Henceforth, the  seniority  of  the  employees  in  the service in  question would  be determined from the date when an employee  became a  member of the service being appointed substantively to  a post  in the cadre of service, no matter whether the said post was perma- 196 nent or  temporary, as  held in  this case.  Appeal allowed. Judgment of the High Court set aside. [220H; 221A]

JUDGMENT:      CIVIL APPELLATE  JURlSDICTION: Civil Appeal No. 1717 of 1981.      From the  Judgment and  order  dated  6.5.1981  of  the Allahabad High Court in W.P. No. 1080 of 1973.      S.N. Kacker,  G.L. Sanghi  and R.B.  Mehrotra  for  the Appellants.      Shanti Bhushan,  A.K. Gupta,  Brij Bhushan,  K.C.  Dua, Gopal Subramaniam, Pradeep Misra, Mrs. S. Dikshit and Sudhir Kulshreshtha.for the Respondents.      S.S. Khanduja,  S.K. Passi,  Yashpal Dhingra  and  Mrs. Urmiia Kapoor for the Interveners.

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    The following Judgments were delivered:      RAY, J.  This appeal by special leave arises out of the judgment  and  order  passed  in  Civil  Miscellaneous  Writ Petition No.  1080 of  1973 by  the High  Court of Allahabad delivered on  6th May,  1981. While  the writ  petition  was allowed in  part a writ in the nature of certiorari quashing the gradation or seniority list annexures 1, 2 and 28 to the writ petition,  was directed  to  be  issued.  There  was  a further direction  for the  issue  of  a  writ  of  mandamus commanding the opposite party No. 1, the State Government to prepare a fresh seniority list in accordance with law in the light of  the observations made in the said judgment, within a period  of three  months  and  thereafter  to  take  other consequential steps.      The crucial  question of  controversy  in  this  appeal relates  to  the  determination  of  seniority  between  the respondents i.e.  petitioners in  writ petition  who are all appointed as  temporary Assistant  Engineers in  the  United Provinces Service  of Engineers  (Buildings &  Roads Branch) and subsequently  made permanent  therein and the appellants appointed on  probation in  the permanent posts of Assistant Engineers reserved  for toppers  of the  Thomson College  of Civil Engineering  later incorporated  in Roorkee University and made  permanent after expiry of period of probation. The respon- 197 dents Nos.  2 and  3 who  passed the final Civil Engineering Examination  of   Thomson  College,  Roorkee  in  1946  were appointed as  temporary and  officiating Assistant Engineers by the  Chief Engineer  subject to  final  approval  of  the Government vide  CE-P/ W/D/  C.M. No.  2736-E/8E-1917  dated 2.6.1947.  This   provisional   appointment   as   temporary Assistant Engineers was approved by the Government vide G.O. No. 89-EBR/2-1947  dated 20.2.1948. Thereafter on the advice of the  Public Service  Commission the  Government confirmed their  provisional   appointment  as   temporary   Assistant Engineers vide o. No 1427/EBR 2 EBR-1947 dated 16.10.1948.      The petitioners  Nos 1  and 4  to 12  passed the  final Civil  Engineering   Examination  of  the  Thomson  College, Roorkee in  the year  1948. They  were  appointed  by  Chief Engineer as  temporary Assistant  Engineers subject  to  the final approval of the Government vide Chief Engineer, P.W D. O.M. dated 10.8.1949 These appointments were made subject to the final  approval of  the Government  and on  their  being declared medically fit by the Medical Board. The appointment of these temporary Assistant Engineers was sanctioned by the government by its order dated 15.10.1949. These appointments were  made   in  accordance  with  Rule  5(i)of  the  United Provinces Service of Engineers (Buildings and Roads Branch), Class Il Rules, 1936. Thereafter on 20th January, 1950, vide G.O. No  3968 EBR/2-1949 the Government on the advice of the Public  Service   Commission   confirmed   the   provisional appointments of  the said petitioners as temporary Assistant Engineers in  the  Buildings  and  Roads  Branch  of  United Provinces  Service   of  Engineers.   The  petitioners  were examined by  the State  Medical Board  and all  of them were declared fit  By Gazette  Notification dated  7.11.1956  the Government was  pleased to  issue orders  of confirmation of the appointment  of petitioners  Nos. 1, 2, 3, 4, 7 and 8 as permanent Assistant  Engineers in  permanent posts,  in  the cadre of  United Provinces  Service of  Engineers (Buildings and Roads  Branch),  Class  II.  By  this  Notification  the Government reserved  the right  to determine  the  seniority subsequently. Similarly, the petitioners Nos. 5, 6, 9 and 10 were confirmed as permanent Assistant Engineers in permanent

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posts  by   Gazette   Notification   dated   9.4.1957.   The petitioners Nos.  11 and 12 were also confirmed as permanent Assistant Engineers  in permanent  posts  in  the  cadre  of United Provinces  Service of  engineers (Buildings and Roads Branch) Class  II by  Notification dated  14 5.1958.  It  is specifically 198 mentioned therein  that the government reserved the right to determine the  seniority  subsequently.  Thus  the  date  of confirmation of  the petitioners  Nos. 1  to 12 as permanent Assistant Engineers  in the  permanent  posts  of  Assistant Engineers  in   United  Provinces   Service   of   Engineers (Buildings  and   Roads  Branch),  Class  II  was  fixed  at 1.4.1956. Vide  G.O. dated 29.5.1961 the orders for inter se seniority exclusively  of petitioners Nos. 1 to 12 vis-a-vis 39 others  including opposite  parties Nos. 8 to 13 who were all confirmed  as permanent Assistant Engineers, were issued by the Government.      Rule 6  of the said Rules i.e. United Provinces Service of Engineers  (Buildings and  Roads Branch), Class II Rules, 1936 empowers  the Government  to decide  in each  case  the source from  which the vacancy in the cadre has to be filled up.  Under   these  powers  the  Government  by  G.o.  dated 31.8.1942  provided  that  with  effect  from  1942-43,  two vacancies in  the Provincial  Service of  Engineers shall be reserved for  the two  students of  Thomson College of Civil Engineering, Roorkee  who passed out highest in the order of merit in  the final  examination of  the civil  engineering. This quota  was increased by G.o. dated 1.7.1944 from two to four posts  each year  (two for  the P  W.D. (Buildings  and Roads Branch)  and two  for  the  Irrigation  Branch).  This reservation  was  also  guaranteed  each  year  to  the  top students. The  Government however  by G.o.  dated  22.6.1950 abolished the  system of  guaranteed posts  with effect from the batch  which was to enter the civil engineering class of the Roorkee  University in October 1950. It was specifically mentioned therein  that no  reservations were  to be made in the  cadre  of  the  U.P.S.E.  (Junior  Scale)  B  &  R  and Irrigation Branches  for students  who passed out highest in the final examination of the Civil Engineering Class in 1953 and subsequent years. It was also mentioned therein that the guaranteed Civil  Engineer students  who passed from Thomson College of  Engineering, Roorkee/Roorkee  University and who had been working in the Buildings and Roads Branch should be absorbed in  the existing  permanent vacancies  which  might arise in  future. In  accordance with  the Government orders the opposite  parties Nos.  2 and  3 who passed out from the Roorkee University  in the  year 1949 securing top positions were  appointed  in  January  1951  as  Temporary  Assistant Engineers. The  opposite parties  Nos. 4  and 5  namely Shri G.C. Gupta  and Shri  S.P. Goel  who  passed  out  from  the Roorkee  University  in  1950  were  appointed  in  1951  as temporary Assistant Engineers in two tem 199 porary posts. The opposite party No. 6 namely Shri S.K. Ojha who  was  one  of  the  toppers  passing  out  from  Roorkee University in  1952 was  appointed  in  October  1953  as  a temporary Assistant  Engineer.  The  opposite  party  No.  7 namely Shri  Brijendra Singh  who passed  out  from  Roorkee University Civil  Engineering Examination  in 1952 was first appointed as a temporary Assistant Engineer on a provisional basis but  subsequently as  he secured  Fourth  position  in Civil Engineering final examination in 1952 from the Roorkee University he  was  appointed  to  the  guaranteed  post  of temporary Assistant Engineer in 1954. The opposite party No.

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8 who  passed the  departmental qualifying  examination  for promotion to  the Service  was appointed to a temporary post of Assistant Engineer on 16.4. 1949. Similarly, the opposite parties Nos.  9, 10, 11, 12 and 13 who passed the qualifying departmental examination were appointed under Rule 5(IV) and 6(a) to the temporary post of Assistant Engineers in 1955.      In accordance with the provisions of regulation 3(i) of the United  Provinces Public  Service Commission (Limitation of Function)  Regulations,  1941  made  by  the  Provisional Government. The  appointment of opposite parties Nos. 3 to 5 and 7  (appellants in this appeal) who had been appointed to the  guaranteed   posts  reserved  for  toppers  of  Thomson Engineering College,  Roorkee did  not require  consultation with  the  Public  Service  Commission.  The  Government  by Gazette  Notification  No.  2205-EBR/XXIII-PWD16EB-53  dated 11.10.1955 confirmed the appointment of the opposite parties Nos. 3  to 5  and 7  in  the  permanent  post  of  Assistant Engineers  with   effect  from   April  1,1955.   By  office Memorandum No.  1933 EBR/XXIII-PWD/55  dated 20.7.1956,  the Government fixed  the inter se seniority of opposite parties Nos. 2  to 7  alongwith 18 other officers who were confirmed as Assistant Engineers.      Aggrieved  by   the  order   of  confirmation   of  the respondents  Nos.   2  to  7,  the  petitioner  No.  4  made representation to the Government for re-determination of the confirmation  as  well  as  consequential  determination  of seniority of  the petitioner vis-a-vis the respondents. This representation was made on 15.7.1959 and a reminder was also given on  9.8.1960. Similarly,  petitioner Nos.  6, 7 and 11 also  made   representations  on   19.8.1959,  5.8.1959  and 23.7.1959 respectively.  The petitioner  No. 6 gave reminder in June 1965 and April, 1970. The petitioner No. 7 also sent reminders on 200 2.3.1960 and  3.7.1960. The  petitioner No.  I also  sent  a representation on  12.9.1963. As  no  steps  were  taken  to consider the representations and to re-determine the date of confirmation of  the petitioners,  the petitioners Nos. 6, 7 and 11 filed writ petition No. 2254 of 1970 in the Allahabad High Court  challenging the  order of  confirmation  of  the respondents and also the consequential fixation of seniority on its basis. The said petition was dismissed by order dated 16.4.1971 on  the sole  ground that  the petition was highly belated and  the petitioners were guilty of laches and delay in challenging  the impugned  notification dated  11.10.1955 and  20.7.  1956  regarding  confirmation  and  fixation  of seniority. Against  the said order Special Appeal No. 287 of 1971 was  filed before  the Division Bench of Allahabad High Court. The  said appeal  was also dismissed. It was observed that though  the  petitioners  could  not  be  permitted  to question the  propriety of confirmation orders yet they were entitled to  claim seniority  over the  rcspondents  as  per rules regulating  the service of engineers. The claim of the petitioners was  that  they  being  appointed  as  Assistant Engineers though  temporarily became  members of the Service earlier than  the respondents and as such they were entitled to claim seniority over the respondents. The representations made by  the petitioners  as far  back as in 1959 were still pending and  as such  the relief  regarding determination of seniority in  accordance with rules was not barred by delay. It was  observed further  that the Government would consider and dispose  of the representations fairly and in accordance with law.      The Government  by their order dated 29.6.1973 rejected all the  representations against  fixation of  seniority  as

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permanent Assistant  Engineers. Hence  the writ petition was filed  by   the  petitioners  claiming  the  relief  of  re- determination of  their seniority  in  accordance  with  the rules governing  the services of United Provinces Service of Engineers Class II (Buildings and Roads Branch) as there had been  no   determination  of   inter  se  seniority  of  the petitioners and  the respondents according to Rule 23 of the said Rules.      It is  pertinent to  note in  this connection  that  in spite of  the observations  of the  Division  Bench  of  the Allahabad High  Court in special appeal No. 287 of 1971 that so far  as the  claim of the appellants for consideration of their representations  regarding determination  seniority in accordance with the Service Rules, was not 201 barred by  the rejection  of the writ petition on the ground of delay  and observations  were made  for consideration  of those representations  by the opposite party No. 1, i.e. the Government instead  of considering and disposing of the said representations in  accordance with  law dismissed  the same merely on the ground of delay and laches.      Before  proceeding   to  consider  the  merits  of  the controversy raised in this case, it is pertinent to refer to the  relevant   rules  i.e.   United  Provinces  Service  of Engineers (Buildings  and Roads Branch) Class II Rules, 1936 which regulate  the appointment and conditions of service of United Provinces  Service of  Engineers (Buildings and Roads Branch). The relevant Rules are quoted herein below:-           Rule  3(b)"Members   of  the   Service"  means   a                     Government appointed  in  a  substantive                     capacity, under  the provision  of these                     rules or  of rules  in force previous to                     the introduction  of these  rules, to  a                     post in the cadre of the service.           Rule 4     The sanctioned strength of the cadre is                     24 assistant  engineers,  provided  that                     subject to  the provisions of rule 40 of                     the  Civil   Services   (Classification,                     Control and  Appeal)  Rules,  1930,  the                     Government may                     .............                     .............                     (ii)  increase  the  cadre  by  creating                     permanent or  temporary posts  from time                     to time as may be found necessary.           Rule 5    Recruitment to  the  Services  shall  by                     made by the Government                     (i) by  direct appointment  from amongst                     engineer students who have passed out of                     the Thomson  Civil Engineering  College,                     Roorkee, and who 202                     have completed  a course  of training in                     the  Buildings   and  Roads   Branch  as                     Engineer Students  after consulting  the                     Public Service Commission, U. P.                     (ii)   by   direct   appointment   after                     advertisement and  after consulting  the                     Public Service Commission, U.P.                     (iii) by  the appointment of officers in                     the  temporary  service  of  the  United                     Provinces   Public    Works   Department                     (Buildings  and   Roads  Branch),  after                     consulting    the     Public     Service                     Commission, U.P.:

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                        provided  that   it  will   not  be                     necessary to  consult the  Commission in                     the case  of appointed  appointment of a                     temporary officer to a permanent vacancy                     if he  has already  been appointed  to a                     temporary  post  in  the  cadre  of  the                     service  after   consultation  with  the                     Commission.                     (iv) by  promotion  of  members  of  the                     United Provinces Subordinate Engineering                     Service or  of Upper Subordinates in the                     Public Works  Department, Buildings  and                     Roads Branch, who have shown exceptional                     merit.                     (v) by  promotion of  computors  in  the                     Public Works  Department, Buildings  and                     Roads Branch, who have shown exceptional                     merit and who are technically qualified.           Rule 16   TRAINING AND PROBATION                       Engineer  students who  pass from  the                     Thomson College  shall  be  required  to                     undergo a  course of  training  for  one                     year. This period may be extended by the                     Government for one more year in the case                     of candidates  who are  not selected for                     appointment at  the end  of their  first                     year of training, but who are considered                     to have 203                     justified their  retention  in  training                     for one more year.           Rule 17   All persons  appointed to  the  Service,                     who are  not already  in  the  permanent                     employ of the Buildings and Roads Branch                     of  the   United  Provinces  Government,                     shall be  placed on  probation for  four                     years, provided  that such  of  them  as                     have  undergone   training  as  Engineer                     students, or  have served  as  temporary                     engineers in  the  Buildings  and  Roads                     Branch   of    the   United    Provinces                     Government, may  be permitted  to  count                     the period  of such training and service                     respectively  towards   this  period  of                     probation. The Government may extend the                     period of  probation fixed  in any case.                     At  any  time  during  the  probationary                     period the  Government may dispense with                     the  services   of  an  officer  at  one                     month’s notice.           Rule 19   (i) A  probationer shall be confirmed in                     his appointment when-                     (a)  he  has  completed  the  prescribed                     period of probation;                     (b)  he   has  passed   all  the   tests                     prescribed in  the last  preceding rule;                     and                     (c) the Government are satisfied that he                     is fit for confirmation.                     (ii) All  confirmations under  the  rule                     shall  be   notified   in   the   United                     Provinces Gazette.           Rule 23   Seniority  in   the  service   shall  be                     determined according  to the date of the                     order of  appointment  to  it,  provided

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                   that if  the order of appointment of two                     or more  candidates bears the same date,                     their  seniority   inter-se   shall   be                     determined according  to  the  order  in                     which   their   appointment   has   been                     notified. 204      Two preliminary objections were raised on behalf of the petitioners about  the maintainability  of the writ petition before the High Court. The first objection was regarding the delay   in    making   the   application   challenging   the determination of  seniority of the petitioners vis-a-vis the respondents which  were determined  as early  as in 1956, in 1973 i.e. after 17 years. This objection was duly considered by the  Court below  and  it  was  over-ruled.  In  1959  re presentations had  been made  against the  determination  of seniority in  contravention of  the provisions of Rule 23 of the United  Provinces Service  of Engineers  (Buildings  and Roads Branch),  Class II  Rules, 1936. These representations were kept  pending by  the  government  and  they  were  not disposed of.  Secondly, in  1970 a  challenge was  thrown in writ petition  No. 2254  of 1970 by Shri R.C. Mangal and two others i.e.  respondent Nos.  6, 7  and 11  challenging  the order of  confirmation of  the petitioners  Nos. 1  to 4 who were appointed long after the appointment of the petitioners and the  con sequent  determination of  seniority. This writ petition, however,  was unsuccessful as the writ petition as well as  the Special  Appeal were dismissed on the ground of inordinate delay  and laches in moving the Court for redress against the  order of  confirmation of the petitioner Nos. 1 to 4  which was  made by  the Government  vide  notification dated  11.10.1955.   But  in   that  case  the  question  of determination of  seniority in  derogation of the provisions of Rules did not arise nor it was considered and determined. It was  further observed  that the  Government would  decide these representations  fairly and  in accordance  with  law. These observations  were made  in the Special Appeal No. 287 of 1971  decided in  October  1971.  The  High  Court  while disposing of  the civil  Writ  Petition  No.  1080  of  1973 observed that  the petition  did not  suffer from  delay and laches and  the question  of determination  of seniority was required to  be considered  by the  Court.  It  was  further observed that  the plea  of wrong  fixation in the cadre was not raised  in the  earlier writ petition. As such there was no determination  on the  question of seniority in the cadre itself in  the said  writ petition and the principles of res judicata were not attracted.      The other  preliminary objection raised was that if the question of  seniority was  considered  it  might  seriously prejudice the  rights of the opposite parties. On this point it was  observed by  the  High  Court  that  the  matter  of seniority of  the opposite parties vis-a-vis the petitioners was never  settled and  as such no question arises as to the accrual of  any right  legal or  equitable in  favour of the opposite 205 parties because of lapse of time.      It is a well established principle that where there are no specific  rules for determination of seniority in service the length  of  continuous  service  is  the  yardstick  for determining the  seniority of  the members  of service.  The vital question that requires to be considered in this appeal is  what   is  the   yardstick  or   standard  or  norm  for determination of  seniority of the respondents who have been appointed as  temporary or  officiating Assistant  Engineers

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against temporary  posts  of  United  Provinces  Service  of Engineers (Buildings  and Roads Branch) Class 11, as well as the toppers  from Thomson  College of  Civil Engineering who were  directly  appointed  sometime  in  1950  and  1951  on probation against  reserved temporary  posts  and  confirmed immediately after  the expiry  of the  period  of  probation against permanent  posts  before  the  confirmation  of  the temporary Assistant  Engineers recruited  from  the  Thomson College of  Engineering sometime  between 1948  to 1950.  To decide this  question it  is very  relevant to  consider the Service rules  as in  the instant  case there are admittedly the  Service   Rules  namely  United  Provinces  Service  of Engineers (Buildings  and Roads Branch) Class Il rules, 1936 which regulate the appointments and conditions of service of United Provinces  Service of  Engineers (Buildings and Roads Branch). Rule  23 of  the said Rules which is said to be the mariners’  compass  in  determining  the  seniority  of  the members of  the service  provides that  seniority in service shall be  determined "according  to the  date  of  order  of appointment to it" provided that if the order of appointment of  two  or  more  candidates  bears  the  same  date  their seniority inter-se  shall be  determined  according  to  the order  in   which  their   appointment  has  been  notified. Therefore, it  is evident from this Rule that the touchstone of determination  of seniority  in service  is the  date  of order of  appointment to  the service  or in other words the date when an appointee becomes a member of the service after fulfilling all  the necessary  requirements provided  in the various provisions  of the  said Rules.  Rule  3(b)  defines further that  "Member of  the Service"  means  a  Government servant  appointed  in  a  substantive  capacity  under  the provisions of  these rules or of rules in force prior to the introduction of  these rules  to a post in the cadre of this service. In  other words,  it states  categorically that  an appointee to  be a member of the service has to be appointed in a  substantive capacity  in the cadre of the service. The cadre of  the service in Rule 4(ii) clearly provides that it consists of  both permanent  and  temporary  posts  and  the strength of the cadre 206 may be increased by the Government by creating permanent and temporary posts from time to time as may be found necessary. The sanctioned  strength of the cadre of Assistant Engineers though originally  was 24 yet the said strength of the cadre could  be  increased  by  creation  of  both  permanent  and temporary posts.  Rule 5  specifically lays down the sources of recruitment  to the  service. There  are five sources for recruitment to  the service.  These sources have been stated hereinbefore and  as such  it is  not necessary to reiterate them once again here. Rule 16 enjoins that engineer students who pass from the Thomson College are to undergo a course of training for  one year.  This  period  of  training  may  be extended by  the Government  by one more year in the case of candidates who  are not  selected for appointment at the end of their  first year  of training  but who are considered to have justified  their retention  in training  for  one  more year. Rule  17 provides  that all  persons appointed  to the service who  are already  in  the  permanent  employment  of Buildings  and   Roads  Branch   of  the   United  Provinces Government shall  be placed  on  probation  for  four  years provided that  such of  them as  have undergone  training as engineer students,  or have served as temporary engineers in the  Buildings   and  Roads   Branch  of   United  Provinces Government, may  be permitted  to count  the period  of such training and  service respectively  towards  the  period  of

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probation. Rule  19 deals with confirmation of a probationer when the  requirements provided  therein have been fulfilled or  completed   namely  the  completion  of  the  prescribed probation period, the passing of all the tests prescribed in Rule 18 and the Government is satisfied that the probationer is fit  for confirmation.  It has also been provided therein that all  confirmations under the Rules shall be notified in the United Provinces Gazette.      The  petitioners   in  the   writ  petition   who   are respondents in  this  appeal  were  initially  appointed  as temporary Assistant  engineers subject to the final approval of the Government by the Chief Engineer, P.W.D. between 1947 and 1948.  Undoubtedly, these appointments were subsequently approved  by   the  Government  between  1948  and  1949  in accordance with  the provisions  of Rule  5(i) of the United Provinces Service  of Engineers (Buildings and Roads Branch) Class II  Rules, 1936.  Thereafter on  January 20,  1950 the Government  in   consultation  with   the   Public   Service Commission confirmed  the provisional  appointments  of  the petitioners  as  temporary  Assistant  Engineers  and  these petitioners have also passed the requisite tests held by the government. They were con- 207 firmed vide Gazette Notifications dated 7.11.1956, 19.4.1957 and  14.5.1958.  The  date  of  confirmation  of  all  these petitioners  was   fixed  as   1.4.1956  (vide   G.O.  dated 29.5.1961). The  respondents Nos.  3 to  5  and  7  who  are appellants in  this appeal  were appointed  between 1951 and 1952 as  temporary Assistant  Engineers  against  guaranteed posts on probation and after competition of the probationary period they were confirmed in 1955 vide Gazette Notification dated 11.10.1955.  Seniority of these appellants Nos. 1 to 4 was fixed earlier from 1.4.1955 whereas the seniority of the Respondents Nos. 1 to 12 of this appeal was fixed below them from 1956  treating the  date of confirmation in the service as the date of their becoming member of the service.      It has  been urged  on behalf of the appellants as well as by  the State  that  unless  a  person  is  appointed  as temporary Assistant  Engineer against  a permanent  post  on probation and  thereafter unless  he becomes confirmed after successful completion of the period of probation and passing of all  the tests  mentioned in Rule 19(b) of the said rules and  he   is  considered  to  be  fit  for  confirmation  by government he  cannot be  considered to  be appointed to the service and  he does not become a member of the service. The seniority of  an Assistant  Engineer will  be reckoned  only from the  date when  an Assistant  Engineer is substantively appointed against a permanent post and duly confirmed in the post in  accordance with  provisions of  Rule 19 and thereby becomes a  member of  the service.  In other  words, it  was tried  to   be  contended   before  this   Court  that   the provisional,   fortuitous,    temporary    or    officiating appointment of  the respondents  as Assistant Engineers will not  be   taken  into  consideration  in  determining  their seniority  in   service  unless  and  until  they  are  duly appointed against  permanent  posts  on  probation  and  are confirmed after  the successful  completion of the probation period and on passing of the requisite tests and after their confirmation is  notified by  the Government  in the  United Provinces Gazette.  Relying on these contentions it has been urged that  the services of the respondent Nos. 1 to 12 were confirmed and  duly notified  in the  Gazette  in  1961  and accordingly by office memo dated May 29, 1961 their inter-se seniority was  fixed. As they were confirmed much later than the appellants  so their  seniority was  fixed below that of

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the appellants.      It was  on the  other hand,  urged  on  behalf  of  the respondents who  passed civil  engineering examination  from Thomson College of 208 Engineering between  1947 and  1948 that  the appellants did not enter  into the Thomson College of Engineering when they were appointed  as officiating temporary Assistant Engineers subject to  final approval  of the  Government by  the Chief Engineer, P.W.D.  between  1947  and  1948.  Thereafter  the Government duly  sanctioned their  appointment by order made between 1948  and 1949,subject  to the final approval of the United   Provinces    Public   Service   Commission.   These provisional appointments  were ultimately  made final by the Government after  the receipt  of the  approval of  the U.P. Public Service  Commission in  1950 .  It has  been urged on behalf of  the respondents  that from  1950 at  least  these respondents should  be deemed or treated to be substantively appointed in  accordance with the provisions of Rule 3(b) of the said  Service Rules.  As they have become members of the service in  as much  as their  appointments have  been  duly approved by the Government and the Public Service Commission and on  their passing  the medical  test and other tests the Government has  confirmed their provisional appointments and the period  of service  these temporary  Assistant Engineers rendered previously  was counted  towards their probation in accordance with  the provisions  of Rule  17 of these Rules, they are  entitled to have their seniority reckoned at least from the  date of  their confirmation  in the service by the Government in  1950 i.e.  from the date of their substantive appointment in  the service The seniority list that has been published  is   wholly  arbitrary,   illegal  and  in  utter contravention of the provisions of Rule 23 of the Rules.      On  a  consideration  of  the  letters  of  provisional appointment issued  by the Chief Engineer, P.W.D. (Buildings and Roads  Branch) as well as the sanctions accorded to such appointments  by   the   Government   thereafter   and   the confirmation of  the  service  of  the  temporary  Assistant Engineers in 1950 after obtaining the approval of the Public Service Commission  and also  after passing  of the tests by the respondents  as provided in Rule 18 of the said Rules, I cannot but  hold  that  they  have  become  appointed  in  a substantive capacity against temporary posts of the cadre of Assistant Engineers  and as such they have become members of the  service   since  that   date  in  accordance  with  the provisions of Rule 3(b) of the said Rules. The argument that their appointment being made against temporary posts and not against permanent posts and not on probation as well as they being  not   confirmed  and  their  confirmation  being  not notified in the United Provinces Gazette before 1956, 209 they are  not entitled  to be  treated  as  members  of  the service being  appointed in the substantive capacity, cannot be sustained  under any circumstances. Rule 4 of the Service Rules clearly  states that  the cadre of Assistant Engineers will comprise  of both  permanent and temporary posts and as such the  argument that unless and until the respondents are appointed on  probation against  permanent posts  and unless they are  confirmed they cannot be treated as members of the service is  wholly untenable. One can be a member of service if  he   is  appointed   in  a   substantive   capacity   as distinguished  from   a   fortuitous   appointment   or   an appointment for  a fixed  tenure or  on a  purely  temporary basis against  a temporary post of Assistant Engineer in the cadre. This  Court in  the case  of Parshotam Lal Dhingra v.

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Union of  India, [1958l  S.C.R. 828  at 842 has held that an appointment to a temporary post in Government service may be substantive or  on probation  or on  an  officiating  basis. Similar observation  has been made by this Court in the case of Baleshwar  Dass & Ors. v. State of U.P. &  Ors., [1981] 1 S.C.R. 449  wherein this  very rule came to be considered in the case  of  a  similar  dispute  regarding  the  seniority amongst the  engineers in  the Irrigation  Department of the Uttar Pradesh Government. It has been observed as follows:-           "It is  not correct to say that when Engineers are           appointed to  temporary posts but after fulfilling           all the tests for regular appointment they are not           appointed    in     a     substantive     capacity           ..............................  That   is  to  say           although they  are temporary  appointees, if their           probation  was  completed  and  other  formalities           fulfilled, they  become members  of  the  service.           Merely because the person is a temporary appointee           it cannot  be said  that he  is not  substantively           appointed if  he fulfills the necessary conditions           for regular  appointment  such  as  probation  and           consultation with the Public Service Commission. " It has been further observed:           "Rule 23  is the  relevant rule when a question of           seniority arises.  The order  of appointment  in a           substantive capacity  is the  significant starting           point for  reckoning seniority. The appointment in           a substantive  capacity need not necessarily be to           a permanent post. It is 210           significant even  if it  is to a temporary post of           long duration . "       Rule  4 prescribes the sanctioned strength of a cadre. It  provides   that  the   Government  may  subject  to  the provisions of Rule 40 of the Civil Services (Classification, Control and Appeal) Rules, 1930 increase the strength of the cadre by  creating permanent or temporary posts from time to time as  may be  found necessary.  So a  cadre post  may  be either  permanent   or  temporary  and  if  an  engineer  is appointed substantively  to a  temporary post  or  permanent post he  becomes a  member of  the service. Therefore merely because  a  Government  servant  has  been  appointed  to  a temporary post  after fulfilment  of all the requirements of the rules  for regular  appointment  including  consultation with the  Public Service Commission, he cannot be said to be appointed substantively  in the  temporary post of the cadre and he  cannot be  said to  be treated to be not a member of the service  under Rule 3(b) of the Rules for the purpose of determination of seniority under Rule 23 of the Rules on the mere plea that he has not been appointed against a permanent post on  probation. Such  a contention  is not tenable. This point has  been very  clearly settled  by this  Court in the case of  Baleshwar Dass  & Ors.  v. State  of U.P.  &  Ors., (supra). It has been observed in this case as follows:-           "We see  no reason to hold that when engineers are           appointed to  temporary posts but after fulfilment           of  all   the  tests   for  regular  appointments,           including consultation  with  the  Public  Service           Commission,  they   are  not   appointments  in  a           substantive capacity. "      In the  instant case as I have stated hereinbefore that though initially  the appointments of these respondents were not appointments  in accordance  with the Rules as they were appointed not  by the  Government but by the Chief Engineer, P.W.D. but  after approval  of  their  appointments  by  the

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Government  and   also  confirmation   of  their  provisonal appointments by  the Government  in  consultation  with  the Public Service  Commission and  after  the  respondents  had passed all  the requisite  tests for confirmation, it cannot be questioned that these respondents have not been appointed in a  substantive capacity as they were not confirmed by the Government prior  to 1961  and their  confirmations were not published in the U.P. 211 Gazette. It  is pertinent to mention that for an appointment in order  to be  an appointment in a substantive capacity it is not  necessary that  the appointment  should be made to a permanent post.  If the  appointment is  made to a temporary post of  long duration in a department having both permanent and temporary  posts of  a quasi-permanent  nature, there is nothing to distinguish the quality of service as between the two.      It  is  pertinent  to  refer  in  this  connection  the observations of  this Court  in S.B.Patwardhan  and Ors.  v. State of Maharashtra and Ors., AIR 1977 SC 2051=[1977] 3 SCR 775 where it has been observed:           "There is  no universal  rule either  that a cadre           cannot consist  of both  permanent  and  temporary           employees or that it must consist of both. That is           primarily  a   matter  of  rules  and  regulations           governing the  particular service  in relation  to           which the  question regarding  the composition  of           the cadre arises."      It has  been further  observed that confirmation cannot be  the  sole  touchstone  of  seniority  as  that  will  be indefensible.  "Confirmation   is  one   of  the  inglorious uncertainties of  Government service  depending  neither  on efficiency of  the incumbent  nor on the availability of the substantive vacancies. "      It does  not show  that confirmation  has to conform to any set of rules and whether an employee should be confirmed or not  depends on  the  sweet  will  and  pleasure  of  the govenment. I do not find any rational or legal justification for  preventing  the  respondents  to  have  their  services rendered from  the date  they are  appointed in the cadre of Assistant Engineers  in a  substantive capacity reckoned for determination of  their seniority  in service  on  the  mere ground that  no order of confirmation has been issued by the Government as  required under  Rule 19  of  the  Rules  even though all  the essential  requirements for  being confirmed have  been   clearly  fulfilled   by  the  respondents.  The respondents, as  has been  stated herein  before, have  been duly appointed in a substantive capacity in the cadre of the Service by the Government in consulta- 212 tion with  the United Provinces Public Service Commission as required under  Rule 5(iii)  of the  said Rules  as well  as after fulfilling  the other requirements as provided in Rule 19 of the said Rules in 1950. It will be relevant to mention in this  connection that this Court in the case of Baleshwar Dass  &  Ors.  v.  State  of  U.P.  &  Ors.,  (supra)  while considering the  identical rules so far as the determination of  seniority  of  the  U.P.  Engineers  in  the  Irrigation Department has  observed that  substantive capacity referred to the  capacity in  which a  person holds  the post and not necessarily to  the nature  and character  of  the  post.  A person is said to hold a post in a substantive capacity when he holds  it for  an indefinite  period especially  of  long duration, in  contradistinction to a person who holds it for a definite  or temporary  period or  holds it  on  probation

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subject to  confirmation. It  has also been observed that an official in  service even before confirmation in service has a relevancy to seniority if eventually no infirmities in the way of  confirmation exist. There is P nothing in the scheme of rules  contrary to  that principle.  Therefore the  point from which  service is  to be counted is the commencement of the service  by the  Assistant Engineer which might not have been permanent  appointment in  the beginning  and  in  that sense may  still be temporary but for all other purposes has been regularised  and is  fit to  be absorbed into permanent post as and when it is vacant.      The decision  in the  case of  A.K. Subraman  & Ors. v. Union of  India &  Ors., AIR  1975 SC  483 which  was  cited before us  is not  relevant in as much as in that case there was no  statutory rule for determination of seniority unlike the instant  case where  there are  specific rules  for  the determination of  seniority. The method of filling up of the post of  Executive Engineers  Class I  was by  promotion  of Assistant  Executive   Engineers  Class  I  as  well  as  by promotion on  selection by  Departmental Promotion Committee of Assistant  Engineers in Central Engineering Service Class II according  to prescribed  quota. In  the  seniority  list published in  1971 the  petitioners  were  shown  junior  to respondents who  were appointed  to the  service of  Central Engineers long  after the  petitioners were appointed in the grade of  Executive Engineer,  Class I. The petitioners were promoted to  officiate as  Executive Engineer Class I by the Departmental Promotion Committee between December 1956 213 and September  1959 whereas respondents were promoted to the posts of  Executive Engineers Class I between March 1957 and February 1966. It was held that once the Assistant Engineers are regularly  appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own  rights as  Class I officers to further promotion. It was also held therein that Assistant Engineers (Class II) who  are   initially  appointed   in  a  regular  manner  in accordance  with   the  rules   to  officiate  as  Assistant Engineers, their  seniority in service in Grade I will count from the  date of  their initial  officiating appointment in Class I  provided their  initial  appointment  as  Assistant Engineer was  within their  quota. Their  seniority will not count from  the date  of their  future confirmation  in  the service.      In G.P.  Doval and  Ors. v.  Chief Secretary,  Govt. Of U.P. &  Ors., AIR  1984 SC 1527 this Court has observed that it is  well settled  that if  there was  no binding  rule of seniority, the length of continuous officiation prescribed a valid principle of seniority.      Where   officiating    appointment   is   followed   by confirmation unless  a contrary  rule is  shown, the service rendered as  officiating appointment  cannot be  ignored for reckoning length  of continuous  officiation for determining the place  in the  seniority list.  This decision which runs contrary to  the decision cited herein is distinguishable as this decision  was rendered  on the  peculiar facts  of that case      Due to  exigencies of  service the Khandsari Inspectors were  recruited  to  that  post  pending  regular  selection through Public  Service Commission.  A provisional seniority list of  the Khandsari Inspectors was drawn on the principle of length  of continuous  officiation reckoned from the date of  selection/approval   by  Public  Service  Commission  in respect  of  each  employee  belonging  to  the  cadre.  All officiating service  rendered by  the  Inspectors  prior  to

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their confirmation  by Public Service Commission was totally ignored  while  determining  seniority.  It  was  held  that seniority list  prepared  of  Khandsari  Inspectors  without considering their  officiating service prior to confirmation by the Public Service Com- 214 mission was violative of Article 16 and the list drawn up on this basis  must be  quashed. In  that  case  there  was  no specific  statutory  rule  laying  down  the  conditions  of service governing the cadre as well as for the determination of seniority of the members of the service.      I   have    already   held   hereinbefore   after   due consideration of  the said  Rules governing  the appointment and conditions  of service  of United  Provinces Service  of Engineers (Buildings  and Roads  Branch) Class  lI that  the cadre of the service of Engineers consists of both temporary and permanent  posts and as such there can be C; substantive appointment  against  a  temporary  post  of  the  cadre  in accordance with  the provisions of the Service Rules. Once a Government servant  is appointed  in a  substantive capacity against a  temporary post  of the cadre after due observance of the  requirements as  provided in  the Rules  he will  be deemed to  be a member of the service in accordance with the provisions of  Rule 3(b)  and his seniority in service shall be determined  from the  date of order of appointment to the service notwithstanding  that no  order of  confirmation has been made  and there  has been  no publication  of order  of confirmation in  the official  Gazette. The respondents were appointed  temporarily   in  an   officiating  capacity   as Assistant  Engineers   against  temporary  posts  and  these temporary appointments were continued for years together and the  Government  duly  sanctioned  their  appointment  after consultation  with   the  Public   Service  Commission.  The respondents thus have become members of the United Provinces Service of  Engineers (Buildings  and Roads Branch) Class Il at least  from the date when they have been confirmed in the Service by  the Government  order issued  in May  1950 after complying  with  all  the  tests  prescribed  and  they  are entitled to  have their  seniority reckoned  from that  date when they  have become  regular Members of the Service after fulfilling all  the requirements  provided in Rule 18 and 19 of the said Rules. The decisions in Baleshwar Dass & Ors. v. State of  U.P. &  Ors., (supra) as well as in Ashok Gulati & Ors. v.  B.S. Jain  & Ors.,  AIR 1987  SC 424  clearly go to establish that  as soon  as a  Government servant  becomes a member  of  the  Service  fulfilling  all  the  requirements specified under the Rules governing the terms and conditions of service as well as of seniority in service, the seniority of the Government servant has to 215 be computed  and reckoned  from the  date when  he becomes a member  of   the  Service.  As  l  have  held  already  that confirmation has  nothing to do with the Government servants becoming a  member of  the  Service  eligible  to  have  his service reckoned  for the  purpose of  determination of  his seniority in  service in accordance with Rule 3(b) read with Rule 23  of the said Rules. In Ashok Gulati’s case (in which one of  us Justice  A.P. Sen-was a party) the following five yardsticks have been laid down for reckoning seniority:-           "The date  from which  seniority is to be reckoned           may be laid down by rules or instructions           (i) on the basis of the date of appointment;           (ii) on the basis of confirmation;           (iii) on the basis of regularisation of service;           (iv) on the basis of length of service; or

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         (v) on any other reasonable basis.      Apropos to mention in this connection that the decision rendered by this Court in the case of N.K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR 1037 is not applicable as the  facts of  that case  are different from the facts of this case.  In that  case the  dispute arose  regarding  the claim  of  the  direct  recruits  to  the  posts  of  Deputy Collectors to  be declared senior to the appellants who were promotees from  Mamlatdars to the post of Deputy Collectors. ln the  State of  Bombay prior  to bifurcation the source of recruitment to  the post  of Deputy  Collector was  two-fold i.e. (1)  by promotion  from Mamlatdar  and  (2)  by  direct recruitment to  the post  of Deputy  Collector. A resolution was adopted  by the  Bombay Government  on 30.7.1959  laying down the  method  of  recruitment  to  the  post  of  Deputy Collectors. lt is in the following terms:-           "Appointment to  the  posts  of  Deputy  Collector           shall be 216 m         made either  by  nomination  or  by  promotion  of           suitable Mamlatdars:           Provided  that   the  ratio   of  appointment   by           nomination and  by  promotion  shall,  as  far  as           practicable, be 50:50". The question  arose whether  the direct  recruits  who  were recruited subsequent  to the  promotees can  claim seniority over the  promotees as  the quota of direct recruits was not fulfilled. It  was held  that since the rule was that as far as possible  the quota  system  must  be  kept  and  if  not practicable, promotees  in the  place of  direct recruits or direct recruits in the place of promotees may be inducted by applying the  regular procedure  without suffering the seats to lie  indefinitely vacant.  It was  further held  that the quota rule  does not,  inevitably, invoke the application of the rota  rule. The  impact of  this  position  is  that  if sufficient  number   of  direct   recruits  have   not  been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim ’deemed’ dates of appointment for seniority in service with effect from the time, according  to the  rota or  turn the  direct recruits’ vacancy arose.  Seniority  will  depend  on  the  length  of continuous officiating  service and cannot be upset by later arrivals from  the open  market save  to the extent to which any excess promotees may have to be pushed down as indicated earlier.  It  was  also  held  that  normally  seniority  is measured  by   length  of  continuous  officiating  service- actually is  easily acceptable  as the  legal. It  does  not preclude a different prescription constitutional tests being satisfied. It  has also  been observed  that the decision in the case  of S.  C. Jaisinghani  v. Union of India, [1967] 2 S.C.R. 703  at 718  as well  as the  decision in the case of B.S. Gupta  v. Union  of India [1975] 1 S.C.R. 104 cannot be considered to  hold the  field in  as much  as in case where recruitment is  from  two  independent  sources  subject  to prescribed quota and power is conferred on the Government to make recruitment  in relaxation of the rules any recruitment made contrary  to the  quota rule  could not  be held  to be invalid unless  it is shown that the power of relaxation was exercised mala  fide. Similar  observation has  been made in the case of A. Janardhana v. Union of India, [1983] 2 S.C.R. 936 at 956, 217 where it has been observed that in a system governed by rule of law  discretion when  conferred upon  executive authority

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must be confined within clearly defined limits. In this case rule (3)  of the  Military Engineering  Service  (RTS)  Rule provides method  of recruitment  indicating the  source from which the recruitment can be made. There were two sources of recruitment to the service one by direct recruitment another by promotion,  according to  quota prescribed  by  the  said rule. The  question arises  whether promotees  in excess  of quota provided  for promotion  on  the  basis  of  power  of relaxation rule can be pushed down as such filling up of the quota by  promotion would be illegal and the excess recruits unless they  find their  place by  adjustment in  subsequent years in  the quota  would not be members of the service. It was held  that even though the rule prescribed the method of recruitment and  quota and  if the  very rule simultaneously confers power  on the government to recruit in relaxation of the rules  unless malafide  are alleged  and attributed such excess recruitments  by promotion  could not  be illegal and the said  promotees cannot  be pushed  down where  the  rule confers a  discretion on  the Government  to relax  rules to meet exigencies of service. Any recruitment made contrary to quota rule  would not be invalid unless it is shown that the power of  relaxation was  exercised mala fide. This decision thus followed  the observation  made in  the Chauhan’s  case referred to earlier. These two decisions, of course, have no application to  the instant  case in  as  much  as  no  such question does arise for decision in this case.      In the  instant case there is a specific rule i.e. Rule 23 providing  for determination of seniority from the date a person has  been substantively  appointed and  has become  a member of  the cadre of service of Assistant Engineer in the United Provinces  Engineering Service  (Buildings and  Roads Branch) Class  II. Therefore  in this case there is no quota for recruitment  to the  service and as such the decision in Chauhan’s case is not applicable.      I  have  already  decided  hereinbefore  that  when  an employee has  been appointed  substantively to  a  temporary post in  the cadre  of service  and has  become a  member of service of Assistant Engineers 218 in the  United Provinces  Engineers Service under the United Provinces Service  of Engineers (Buildings and Roads Branch) Class II  Rules, his  seniority in  service will  be counted from the date of his becoming member of the service. It does not matter  whether  he  has,  been  appointed  against  the permanent post  and has  been duly confirmed in that post. l have come  to this  finding on  a due  consideration of  the provisions of  the aforesaid  rules more  particularly Rules 3(b) and  23 of  the said  rules which  lay down the mode of determination of seniority in service.      In the instant case, however, l am not inclined to give any relief  to the  respondents  (petitioners  in  the  writ petition) by  directing redetermination  of the seniority of the respondents  as well  as the appellants on the ground of unusual laches  and delay.  The appellant  Nos.  to  4  were confirmed in  1955 and  their seniority  was  determined  by Government order  of 20th July, 1956. Out of the petitioners of the  writ petition,  the petitioner  Nos. 4  and  5  made representations in  1959  against  the  aforesaid  seniority list.  Subsequently,   petitioner  No.   6   filed   another representation. Petitioner  Nos.  6,  7  and  4  made  their representation in  1959 and petitioner No. 6 gave a reminder in June 1965 and April 1970. The other petitioner Nos. 2, 3, 9 and  10 did  not make  any representation in the matter of seniority. It  is only  in 1970  that the  writ petition No. 2254 of  1970 was  moved challenging the confirmation of the

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petitioner Nos.  1 to  4 (appellants in the instant appeal). This challenge  was negatived  on the  ground of  laches and delay. An  appeal being  Special Appeal  No. 287 of 1971 was also dismissed  on the ground of laches and delay as regards the confirmation of the appellants was concerned. Of course, it had  been observed that the seniority in service of these appellants was  not questioned in the said writ petition and the Government would consider the representation made by the petitioners of  the writ petition (appellants in the instant appeal) as  far back  as in  1959, which were pending before the Government.  The writ  petition No.  1080 of  1973 which gave rise  to the Civil Appeal was moved in 1973 challenging the determination  of seniority  of the  appellants  in  the instant appeal.  It appears from the affidavit-in-opposition sworn by  one of  the appellants Shri G.C. Gupta that at the time when  the writ  petition was moved the appellant Nos. 1 to 4  were officiating  as Superintending  Engineers and the respondent Nos.  2 and  3 were officiating as Superintending Engineers but  junior to  all the  four appellants  and  the respondent Nos. 1 and 4 to 12 were 219 then Executive  Engineers. At present the appellant Nos. -1, 2  and   3  are   permanent  Superintending   Engineers  and officiating as Additional Chief Engineers. The appellant No. 4 is  also a  permanent  Superintending  Engineer.  At  this juncture if  the seniority of these appellants vis a-vis the respondents of  this appeal  is directed to he determined it will  create  much  administrative  difficulties  and  would amount to  deprive the  appellants of  their valuable rights which have accrued to them. It is pertinent to refer in this connection to the observation made by this Court in the case of Rabindra  Nath Bose  & Ors.  v. Union  of India  &  Ors., [1970] 2  SCR 697.  It has  been observed that the attack to the seniority  list prepared  on the  basis of 1952 rules 15 years after  the rules  were promulgated and effect given to the seniority  list prepared on August 1, 1953 should not be allowed because  of  the  inordinate  delay  and  laches  in challenging the said rule.      Similar observations  have been  made by  this Court in the case  of State  of Orissa  v. Pyarimohail  Samantaray  & Ors., [1977]  3 SCC  396; State  of M.P. & Ors. etc. etc. v. Nandlal Jaiswal  & Ors.,  AIR 1987  SC 251;  Ramanna Dayaram Shetty v. lnternational Airport Authority of India, [1979] 3 SCR 101 4; Ashok Kumar v. Collector, Raipur, AIR (1980) (SC) 112:1980 1  SCR 491; K.R. Mudgal v. R.P. Singh, [1986] 4 SCC 531 and R.S. Makashi & Ors. v. I.M. Menon & Ors., [1982] (1) SCC 379  where relief was refused on the ground of laches in moving the  Court for  redress of the grievances after lapse of a period of years after the cause of action arose. lt has been observed in State of M. P. & Ors., v. Nandlal Jaiswal & Ors., (supra):-      "Now, it  is well  settled that  the power  of the High Court to  issue an appropriate writ under Article 226 of the Constitution is  discretionary and  the High  Court  in  the exercise of  its discretion  does not  ordinarily assist the tardy  and   the  indolent   or  the   acquioscent  and  the lethargbic. If  there is inordinate delay on the part of the petitioner in  filing a  writ petition and such delay is not satisfactorily explained,  the High  Court  may  decline  to intervence and  grant relief  in the  exercise of  its  writ jurisdiction. The  evolution of this rule of laches or delay is premised  upon a  number of  factors. The High Court does not ordinarily  permit a belated resort to the extraordinary remedy under  the writ  jurisdiction because it is likely to cause confusion  and public  inconvenience and  bring in its

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train new  injustices.  The  rights  of  third  parties  may intervene and if the writ 220 jurisdiction is  exercised on  a writ  petition filed  after unreasonable delay, it may have the effect of inflicting not only hardship  and inconvenience but also injustice on third parties. When  the writ  jurisdiction of  the High  Court is invoked, unexplained  delay coupled  with  the  creation  of third party  rights in  the meanwhile is an important factor which always  weighs with the High Court in deciding whether or not to exercise such jurisdiction."      In this  case the  challenge to  the seniority  of  the appellants which  was determined  by order  dated 20th July, 1956 was  made in  1973 i.e.  after nearly 17 years and they have sought  relief for  redetermination of the seniority in accordance with  the provisions  of  the  aforesaid  service rules. This cannot be permitted as it would amount to unjust deprivation of  the  rights  of  the  appellants  which  had accrued to them in the meantime. The observation that ’Every person ought  to be  entitled to  sit back and consider that his appointment and promotion effected a long time ago would not be  set aside  after the  lapse of a number of years’ as made in the above case Rabindra Nath Bose & Ors. v. Union of India &  Ors. will  be applicable  to this case. Considering all these  aspects it  would be  just and proper not to give any relief  to the  respondents on  the ground of inordinate laches and  delay in  challenging the seniority list made in July, 1956.  I have  already mentioned  hereinbefore that at the time  of moving  the  writ  petition  in  1973  all  the appellants had been confirmed as Superintending Engineers in the United  Provinces Service of Engineers and the appellant Nos. 1  to  3  had  been  officiating  as  Additional  Chief Engineers. The  appellant No.  4 who  was also  a  permanent Superintending Engineer  we were  told by the parties at the time of  hearing of  this  appeal,  had  been  promoted  and appointed as  Additional Chief  Engineer. Whereas out of the 12 respondents  10 have  already retired from services as it appears from the affidavit sworn by appellant No. 1 Mr. G.C. Gupta in  accordance with  the directions  of this Court. We are also told that out of the remaining 2 respondents, 1 has already retired  from service.  So, only  1 respondent is at present in  service. In these circumstances I think that the cause of justice will be served if the authorities concerned consider the  case of  the said  respondent for promotion in accordance with law.      For the reasons aforesaid the appeal is allowed and the judgment and  order of  the High  Court is  set aside. There will be no order as to costs. 221      I also  make it  clear that henceforth seniority of the employees in service in question will be determined from the date when  an employee  has become  a member  of the service being appointed  substantively to  a post  in the  cadre  of service, no  matter whether  the said  post is  permanent or temporary as I have held hereinbefore.      SEN J.  I have  had the  benefit of  going through  the judgment prepared  by my learned brother Ray, J. and I agree with  the  order  proposed  to  be  made.  In  view  of  the importance of  the questions  involved, I would however like to add a few words.      I have  no doubt  in my  mind that  temporary Assistant Engineers were  entitled to  the benefit  of their seniority reckoned according  to the  date of the order of appointment to the  Service in  terms of  r. 3  of the  United Provinces Service of Engineers (Buildings & Roads Branch) Rules, 1936,

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w.e.f. the  date of their absorption into the Service by the Government  in   consultation  with   the   Public   Service Commission  i.e.  from  the  date  from  which  they  became ’Members of  the Service’  within the  meaning of r. 3(b) of the Rules.  I had  expressed the same view in Ashok Gulati & Ors. v.  B.S. Jain & Ors., [1986] Suppl. SCC 597 and I still adhere to it.      As a  matter of  policy, the then Provincial Government by a  notification dated August 31, 1942 directed under r. 6 of the  Rules that  from the  year 1942-43, two vacancies in the United  Provinces Service  of  Engineers,  both  in  the Buildings  and   Roads  as   well  as   in  the   Irrigation Departments, shall  be reserved  for two students of Thomson College of  Civil Engineering,  Roorkee who  stood first and second in  order of  merit in  the final  examination of the Degree Course  of Engineering  i.e. to the guaranteed posts. The reserved  quota of  guaranteed posts was later increased by the  Government from  two to four posts each year in each of the  two Branches.  The system  of direct  recruitment of such Engineer  Students to  the  two  guaranteed  posts  was however discontinued  by its  notification  dated  June  22, 1950, w.e.f.  the  year  1953  i.e.  the  system  of  direct recruitment of  merit scholars  to the  guaranteed posts was abolished in respect of the batch of students who joined the Thomson College  of Civil Engineering, Roorkee University of Roorkee from  the month  of October  1950,  i.e.  after  the inauguration of the Constitution.      Again, as  a matter  of policy, the State Government by an office 222 memorandum dated  December 7, 1961 brought about a change in the method of recruitment of Assistant Engineers in the U.P. Service of  Engineers, Buildings & Roads Branch. It provided for  direct  recruitment  of  such  Assistant  Engineers  by competitive   examination   through   the   Public   Service Commission from  the year  1961. Paragraphs  1 and  2 of the said memorandum read as follows:           The   principles    regulating    selection    for           recruitment to  permanent and  temporary posts  of           Assistant   Engineer    in   the   various   State           Engineering   Services   have   been   under   the           consideration of Government for some time past and           after  thorough  consideration,  the  Governor  is           pleased to order that in future direct recruitment           to  both  permanent  and  temporary  vacancies  of           Assistant   Engineers    (Civil,   Electric    and           Mechanical) in  the Public  Works, Irrigation  and           Local  Self  Government  Engineering  Departments,           will  be   made  on  the  results  of  competitive           examination to  be conducted by the Public Service           Commission. Candidates  possessing  technical  and           other qualifications  prescribed in  the rules for           the United  Provinces Service  of Engineers in the           Departments concerned will be eligible to apear at           the examination for that particular service."           "(2) Successful  candidates in order of merit will           subject to  the relevant  rules regarding physical           fitness and  other matters,  be appointed directly           on probation  against vacant  permanent posts  and           those  following   will   be   appointed   against           temporary posts."      By a  G.O. dated  April 19,  1950, the State Government settled  the   principle  that   persons  appointed  to  the guaranteed posts  every year as Engineer Students would take their  seniority   over  persons   appointed  as   temporary

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Assistant Engineers  in that  year. A  person appointed to a guaranteed post in a particular year however was made junior to all  those who  were appointed  as Assistant Engineers in earlier years,  irrespective of  whether they were appointed to guaranteed  or to  non-guaranteed posts.  By a subsequent G.O. dated  June ,  1950 the  Government intimated the Chief Engineer, Buildings  & Roads that Engineer Students who were appointed to  the guaranteed  posts of  temporary  Assistant Engineers and working in 223 the Buildings  & Roads  Branch be  absorbed in  the existing permanent vacancies or those which might arise in future.      Thus,  the   appellants  who   were  appointed  to  the guaranteed  posts   of  temporary  Assistant  Engineers,  as reserved for  the top  students of  Thomson College of Civil Engineering, Roorkee/University  of Roorkee,  constituted  a class apart.  One D.K.  Laroiya who  had been appointed as a temporary Assistant  Engineer to one of the guaranteed posts in 1945 and confirmed in the year 1949 made a representation dated  April  15,  1955  claiming  seniority  over  all  the Assistant  Engineers   appointed  to   guaranteed  or   non- guaranteed posts,  irrespective of the order of appointment. While this  representation was pending, the State Government passed an  order  dated  October  11,  1955  confirming  the appellants i.e.  holders of guaranteed posts w.e.f. April 1, 1955 in  the permanent  posts of  Assistant  Engineers,  and later on by order dated July 20, 1956 determined their order of seniority.  Subsequently, the  Government by orders dated November 7,  1956, April  9, 1957 and May 14, 1958 confirmed the temporary  Assistant Engineers i.e. persons appointed to non-guaranteed posts  as permanent  Assistant Engineers, all w.e.f. April  1, 1956.  By order  dated  May  29,  196’  the Government determined the seniority of respondents nos. 1-12 and 39  others referable  to the  date of  their substantive appointment. On  a combined  reading of  the impugned orders dated July  20, 1956  and the subsequent order dated May 29, 1961, the  appellants i.e.  the directly  recruited Engineer Students who  had passed  out from  the Thomson  College  of Civil Engineering, Roorkee/University of Roorkee in order of merit i.e.  to  the  guaranteed  posts,  were  placed  above respondents nos.  1-12 and  39  others  i.e.  the  temporary Assistant Engineers.  On the basis of their seniority and in view of  their record  of service, the appellants had in the meanwhile been  promoted as Offg. Executive Engineers in the years 1960  and 1961.  Admittedly, respondents nos. 1-12 who later on  were promoted  as Offg.  Executive Engineers never filed any  representation qua  Executive Engineers  and  the seniority of  the appellants as Executive Engineers remained unchallenged throughout the period of 14 years.      It was  not till  May 4,  1970 i.e. after a lapse of 15 years that  respondents nos.  6,7, and  11 viz.  I.P. Gupta, R.C. Mangal  and R.K.  Mathur filed a petition under Art. 26 of the  Constitution  in  the  High  Court  challenging  the impugned order dated October 11, 1955 by 224 which the appellants were confirmed w.e.f. April 1, 1955 and the consequential  determination of  the inter-se  seniority between direct recruits and promotees vide orders dated July 20, 1956  and May  29, 1961 assigning them higher seniority. The writ  petition came  to be  heard by  Broome,J. and  the learned Judge  by his judgment and order dated April 6, 1971 dismissed the  writ petition  holding that  the  petitioners were guilty  of laches.  That judgment  of his was upheld in appeal by  a Division  Bench consisting  of R.S.  Pathak and H.N. Seth,  JJ. by  its judgment dated October 26, 1971. The

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Division Bench  following the  decision  of  this  Court  in Rabindra Nath  Bose &  Ors. v. Union of India & Ors., [1970] SCR 697  held  that  the  learned  Single  Judge  was  fully justified in  holding that no relief could be granted to the petitioners  who,   without  any   reasonable   explanation, approached the High Court under Art. 216 of the Constitution after inordinate  delay. It  was also  observed relying upon the decision  of this Court in S. G. Jaisinghani v. Union of India &  Ors., [1967]  2 SCR  703 that  it would  be  highly unjust to  deprive the  appellants of  the rights  which had accrued to  them as such. The learned Judges firmly repelled the contention  that even  if the  petitioners could  not be permitted to  question the  legality and  propriety  of  the impugned order  of confirmation, they were still entitled to claim  seniority   over  the   directly  recruited  Engineer Students as per rules regulating seniority observing that:           "Since the  petitioners cannot  be allowed  to re-           agitate  and   question  the   propriety  of   the           confirmation order passed long time back, it would           not be  desirable  to  go  into  the  question  of           consequential determination of seniority either.      In the  concluding part  of the  judgment, there  is  a direction in the following terms:           "Moreover,    representations    made    by    the           petitioners, as  admitted in the counter-affidavit           filed on behalf of the State Government, are still           pending. The  State Government  has taken  up  the           stand that  these representations  have  not  been           decided as  writ petitions  had been  filed by Sri           K.C. Agarwal and the petitioners before this Court           and the  matter  became  sub-judice.  We  have  no           reason to 225           think that  after disposal  of the  petitions  the           State   Government    will    not    decide    the           representations fairly and in accordance with law.           In the  circumstances,  we  are  not  inclined  to           examine the correctness of this submission made by           the petitioners in this petition."      If the sentence was read in the context, it meant ’Left to   themselves,    they   would   not   have   interfered’. Misconstruing this  direction, the State Government afforded an opportunity  to the temporary Assistant Engineers to make their representations,  if any.  Factually.  there  were  no representations pending  except the  one filed  by  Laroiya. Eventually, the State Government realised the mistake and by its order  dated June  29, 1973  rejected the representation stating that the question of inter-se seniority of Assistant Engineers  had   been  finally  settled  and  could  not  be reopened.      It is  somewhat strange  that the  Division Bench (T.S. Misra and U.S. Srivastava. JJ) by its judgement dated May 6, 1981 should  have, after a lapse of nearly 26 years, thought that merely  because of  the fact  that the State Government erroneously invited  representations afresh,  ’the matter of inter-se seniority  was still alive and not a closed chapter . Upon  that wrongful  assumption, the High Court has fallen into an  error in  directing the  issuance of  a writ in the nature of  certiorari quashing  the impugned  seniority list and a  writ in  the nature  of mandamus  directing the State government  to   re-determine  the   inter-se  seniority  of Assistant  Engineers  in  the  U.P.  Service  of  Engineers, Buildings & Roads Branch, Class Il.      There can be no doubt whatever that it was not a proper exercise of  jurisdiction on  the part  of the High Court to

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have interfered  with  the  impugned  seniority  list  after nearly three  decades. When wayback in the year 1971 Broome, J. had  declined to  interfere with  the inter-se  seniority between  the   appellants  i.e.   the  direct  recruits  and respondents nos.  1-12 and 39 others i.e. the promotees on a similar petition  under Art.  226 of the Constitution on the ground of  inordinate delay  and laches and that judgment of his was  upheld by  a Division  Bench which observed that it would be  unjust to  deprive the  appellants of  the  rights which had  accrued to them as they were entitled to consider that their  appointments to  the promotional posts would not be set aside after a lapse of so many 226 years, there was no occasion for the later Division Bench to have  interfered  with  the  impugned  orders  and  given  a direction to the State Government to re-determine the inter- se seniority  between the appellants and respondents nos. 1- 12 and  39 others  under r.  23 of  the Rules  afresh,  with advertence to the observations made by it.      My learned  brother Ray,  J. has  taken immense pain in discerning the  principles emerging  from all  the  relevant authorities on  the subject, including those of N.K. Chauhan v. State  of Gujarat  [1977] 1  SCR 1037; S.B. Patwardhan v. State of  Maharashtra, [1977] 3 SCR  775 and the  subsequent decision in Baleshwar Dass v. State of U.P. [1981] 1 SCR 449 and I  do not  wish to traverse the ground over again except to touch  upon certain aspects. The principle deducible from the two  well-known  decisions  of  N.K.  Chauhan  and  S.B. Patwardhan is  that in  the absence of a seniority rule, the promotees within  the quota  are entitled  to the benefit of the period  of continuous  officiation  in  reckoning  their seniority vis-a-vis  direct recruits.  The importance of the decision in  Baleshwar Dass’  case lies  in  the  meaningful interpretation of the words ’substantive capacity’.      The question  must turn on a proper construction of the unamended r. 3 of the Rules which provided:           "23. Seniority  in the service shall be determined           according to  the date of the order of appointment           to it,  provided that  if the order of appointment           of two  or more  candidates bears  the same  date,           their  seniority   inter-se  shall  be  determined           according to  the order in which their appointment           has been notified." It is  plain upon  the language of r. 23 that it does not in terms use the words substantive capacity’ but speaks of ’the date of  order of  appointment to it’ i.e. the Service which brings in  the concept  of ’substantive  capacity’ as  those words are  used in the definition of the expression ’Members of the Service’ as contained in r. 3(b) of the Rules.      In Baleshwar  Dass’ case, the seniority list challenged before the  High Court  was the  one relating  to Assistant- Engineers belonging to the Irrigation Department prepared in December 1965  under  r.  23  of  the  Rules  prior  to  the amendment, but after the issuance of the 227 aforesaid memorandum  dated December 7, 1961 by which a, new method of  recruitment was introduced. The Court referred to Rules for  recruitment in  particular to rr. 5, 6, 17 and 19 as well as the aforesaid office memorandum dated December 7, 1961. The  Court in  Baleshwar Dass case firmly repelled the contention   that    the   aforesaid    office    memorandum incorporating a  change in  the method of recruitment had no statutory force,  not being  expressed in  the name  of  the Governor, on  the ground  that it  had been  published under Government  authority,  acted  upon  for  two  decades  when

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recruitments were  made by the Public Service Commission and universally accepted  as binding.  It held  that the  office memorandum was  relatable to a statutory source, namely, rr. 5 and  6 of  the rules  as ’filling  up  the  gaps  and  not flouting the provisions’. It was observed:           "Two  vital   factors  must   guide  us   in  this           interpretative  exercise.   If  a  dated  rule  of           colonial  times  is  to  be  applied  today,  that           meaning  which  sustains  it  as  constitutionally           valid must  be preferred  to another  which may be           appealing, going  by officialise or literal sense.           We have to regard it as a case of ’new wine in old           bottle’. We  must reinterpret the rules to comport           with Arts. 4 and 16 by constitutionally acceptable           construction,  not   rigid  connotation  given  to           expressions in  the vintage  vocabulary of British           Indian days." Acting upon  the basis  that the aforesaid office memorandum dated December  7, 1961.  was  constitutionally  valid,  the Court went into the intent and effect of rr. 23, 3, 4, 5, 6, 17 and  18 and  their impact on r. 23 read in the context of the memorandum of 1961 with a view to rationalise the scheme of recruitment,  classification, seniority and promotion and held that there was nothing arbitrary in the 1961 memorandum bringing about  a change  in the  method of  recruitment  by competitive examination  through Public  Service Commission, and observed:           "(A)lthough  in   its  application,   we  have  to           remember the  prior Rules  and when  the  two  are           woven into  each other  or, rather, when the later           1961 Memorandum  is dovetailed  to the  .936 Rules           the results  that  may  follow  will  have  to  be           ascertained with  care and  consistently with  the           ratio of  the decisions  of this  Court in cognate           situations." 228 Further that:           "(T)he Government  decided in  1961 to  resort  to           direct recruitment  of Assistant Engineers through           competitive  examinations   held  by   the  Public           Service Commission.  It was, however, alive to the           fact that  massive appointments  had already  been           made, in  the years  gone  by,  to  the  posts  of           Assistant  Engineers   from  among   graduates  in           engineering by direct selection and later approval           by the Public Service Commission.. "      The importance  of the decision in Baleshwar Dass’ case lies  in   the  meaningful   interpretation  of   the  words ’substantive  capacity’.  Krishna  Iyer,  J.  affirming  the principle in  his own  charismatic and picturesque language, observed:           "We  must   emphasise  that  while  temporary  and           permanent posts  have great relevancy in regard to           the career  of government  servants, keeping posts           temporary for  long, sometimes  by annual renewals           for several  years, and  denying the claims of the           incumbents on  the  score  that  their  posts  are           temporary  makes   no  sense  and  strikes  us  as           arbitrary,  especially  when  both  temporary  and           permanent appointees  are functionally identified.           If, in  the normal  course, a post is temporary in           the real  sense and  the appointee  knows that his           tenure cannot  exceed the post in longevity, there           cannot  be   anything  unfair   or  capricious  in           clothing him  with no  rights. Not so, if the post

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         is, for  certain departmental  or  like  purposes,           declared temporary,  but it  is within  the ken of           both the  government and  the appointee  that  the           temporary posts  are virtually  long lived.  It is           irrational to  reject the claim of the ’temporary’           appointee on  the nominal score of the terminology           of the  post. We  must also  express  emphatically           that the principle which has received the sanction           of this Court’s pronouncements is that officiating           service in a post is for all practical purposes of           seniority as  good as  service on a regular basis.           It  may   be  permissible,   within  limits,   for           government to ignore officiating service and count           only regular service when claims of seniority come           before it,  provided the  rules in that regard are           clear and  categoric  and  do  not  admit  of  any           ambiguity and  cruelly arbitrary cut-off of 1 long           years of  service does  not take place or there is           func- 229           tionally and qualitatively, substantial difference           in the  service rendered  in two  types of  posts.           While rules  regulating conditions  of service are           within the  executive power  of the  State or  its           lagislative power  under provision  to  Art.  309,           even so,  such rules  have to  be reasonable, fair           and not  grossly unjust if they are to survive the           test of Arts. 14 and 16." Adverting to  the oft-quoted observations of Chandrachud. CJ in S. B. Pathwardhan’s case that ’seniority cannot depend on the inglorious uncertainties of confirmation’ and to his own in N.  K.  Chauhan’s  case  that  ’seniority,  normally,  is measured by  length of  continuous officiating  service’ the learned Judge  observed that  although  an  appointee  to  a permanent post acquires certain rights which one who fills a temporary post  cannot claim, nevertheless. when the post is not purely temporary or ad-hoc or of short duration or of an adventitious nature,  the  holder  of  such  temporary  post cannot be degraded to the position of one who by accident of circumstances,  or   for  a  fugitive  tenure  occupies  the temporary post  for a fleeting term. The learned Judge while accepting that there was a distinction between permanent and temporary posts inasmuch as permanency carries with it other rights than  mere seniority  and promotion,  brought out the ’propinquity in status’ of permanent and temporary Assistant Engineers in  the special conspectus of the facts before him and found  no justification to hold that when Engineers were appointed to  temporary posts  but after  fulfillment of the tests for  regular appointment,  including consultation with the Public  Service Commission, they were not appointed in a substantive capacity.      The ultimate  ratio of  the decision in Baleshwar Dass’ case is  best brought out in the words of Krishna Iyer, J in the following passage:           "Substantive capacity  refers to  the capacity  in           which a  person holds the post and not necessarily           to the nature or character of the post .. A person           is said  to hold  a post in a substantive capacity           when  he   holds  it   for  an  indefinite  period           especially of  long duration  in contradistinction           to a  person  who  holds  it  for  a  definite  or           temporary period  or holds it on probation subject           to  confirmation   .......  once   we   understand           ’substantive capacity’  in the above sense, we may           be able  to  rationalise  the  situation.  If  the

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         appointment is to a post and the capacity in which 230           the appointment is made is of indefinite duration,           if  the   Public  Service   Commission  has   been           consulted  and   has  approved,   if   the   tests           prescribed  have   been  taken   and  passed,   if           probation  has   been  prescribed   and  has  been           approved, one  may well say that the post was held           by the incumbent in a substantive capacity." It is  to be  emphasised that  the court  in Baleshwar Dass’ case did  not take  upon  itself  the  task  of  determining whether the  temporary Assistant  Engineers were entitled to have the  benefit of  their  entire  period  of  service  in reckoning seniority under r. 23 of the rules, but left it to the Government  to ascertain  the facts  and  determine  the question in  the light  of the  principles laid down whether the  capacity   in  which   the  posts  had  been  held  was substantive or temporary. The emerging principle is that the temporary Assistant  Engineers were  entitled to the benefit of their  seniority reckoned  according to the date or order of appointment  to the Servce in terms of r. 23 of the rules w.e.f. the  date of their absorption into the Service by the Government  in   consultation  with   the   Public   Service Commission  i.e.  from  the  date  from  which  they  became ’Members of  the Service’  within the  meaning of r. 3(b) of the Rules.      In legal  matters,  some  degree  of  certainty  is  as valuable a  part of  justice as  perfection. One  reason for consistency is that people often regulate their conduct with reference to  existing rules,  which makes  it important for Judges to  abide by  them. Innovations can be unsettling and lead to a loss of confidence: Dias’ Jurisprudence, 4th edn., p. 286.  In the  present case,  the High Court was obviously wrong in proceeding upon the basis that the matter was still res integra.  The decision of the earlier Division Bench was arrived at  keeping in  view all the aspects and it was held that the  claim for  re-determination of  inter-se seniority between direct  recruits and promotees could not be agitated after a lapse of 16 years. It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a  question or  was argued,  no matter on what reason the decision rests  or what  is the  basis of  the decision.  In other words,  an earlier  decision may  be overruled  if the Court comes  to the  conclusion that  it is manifestly wrong and not  upon a  mere suggestion  that if the matter was res integra, the  Court on  a later  occasion could  come  to  a different conclusion. It cannot be doubted that an unlimited and perpetual  threat of litigation leads to disorder, sense of insecurity  and uncertainty.  May be, there may have been isolated  cases   of  hardship   but  there   must  be  some reservation about limitation 231 on  the  Court’s  power  in  the  public  interest.  Obvious considerations of  public policy  make it a first importance that  the   person  aggrieved  must  take  action  requisite effectively to  assert his  right to that end so that if the contention can  be justified,  the Government service may be disturbed as little as possible.      Inordinate delay  is not  merely a factor for the Court to  refuse   apropriate   relief   but   also   a   relevant consideration it  be  so  minded  not  to  unsettle  settled things. As observed by Khanna, J. in delivering the judgment of the  Court in  Maloon Lawrence  Cecil D’Souza v. Union of India & Ors., [1975] Suppl. SCR 409:           "(B)y and  large one of the essential requirements

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         of contentment and efficiency in public service is           a feeling of security. It is difficult no doubt to           guarantee such  security in all its varied aspects           it should  at least  be possible  to  ensure  that           matters like  one’s position in the seniority list           after having  been settled  for once should not be           liable to be reopened after lapse of many years at           the  instance  of  a  party  who  has  during  the           intervening period chosen to keep quiet. Raking up           old matters  like seniority  after a  long time is           likely to  result in  administrative complications           and difficulties.  It would,  therefore, appear to           be in the interest of smoothness and efficiency of           service that such matter should be given a quietus           after lapse of some time. So also in R.S. Makashi & Ors. v. I.M. Menon & Ors.,  [1982] 2 SCR  69; Eradi, J. speaking for a three-Judge Bench stated that belated  petitions cannot  be entertained under Art. 32 of the  Constitution. See  also: K.R.  Mudgal & Ors. v. R.P. Singh &  Ors., [1986] 4 SCC 531. It would clearly be unjust, as observed  by Sikri,  J. in  Rabindra Nath  Bose’ case  to deprive the  appellants of  the rights which have accrued to them. As  a result  of the  G.O. Of April 19, 1950, although initially the guarantee to the merit scholars who had passed out from  the Thomson  College of Civil Engineering, Roorkee in order  of merit  was in  regard  to  appointment  to  the guaranteed post, but later it was amplified into assuring to the holders  of such  guaranteed posts  like the  appellants preference in  the matter  of permanency and seniority. This necessarily perpetuated some amount of injustice, as brought out in  the Report  of Lal Committee, to the holders of non- guaranteed posts i.e. the temporary Assistant Engineers, due to permanent  appointments having  been given to the holders of guaranteed posts 232 i.e. directly  recruited engineer  students in preference to them, though they joined service earlier. There is, however, nothing that  can be done for the Court is faced with a fait accompli. At times, the court is overtaken by the events. As a matter  of policy,  the Government of the day thought that it would  bring greater  efficiency and merit to the Service if certain  number of posts were kept reserved for the merit scholars  graduating  from  the  Thomson  College  of  Civil Engineering, Roorkee,  which in  those  days  was  the  most prestigeous institution  of its  kind in the country and was later incorporated  into  the  University  of  Roorkee.  The evidence about  relevant consideration  which  prompted  the then Government  into taking  such a  policy decision a long time back may have been lost by passage of time but there is always a presumption that every official act is done in good faith. Although  Krishna Iyer,  J. in  Baleshwar Dass’s case calls the  directly recruited  Engineer  Students  to  be  a ’relic of  the Imperial  days’, nevertheless  the system  of reservation of  posts for  the engineer  Students served its own purpose  in attracting  persons of  undoubted talent and outstanding  merit  to  the  Service  and  thereby  promoted efficiency, and it has also withstood the test of time.      In view  of  these  considerations,  I  agree  with  my learned brother  Ray, J.  that respondents  nos.  1-12  were disentitled to any relief under Art. 226 of the Constitution due to  inordinate delay  and laches. If the judgment of the High Court  were to  be sustained after a lapse of nearly 32 years, it  cannot be  gainsaid that  the entire structure of the administrative  set-up of the U.P. Service of Engineers, Buildings &  Roads Branch  would be  upset. We  are informed

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that the  four appellants  before  us  by  reason  of  their seniority and  record of  service, have  reached the  higher echelons  of  service.  One  of  them  has  been  the  offg. Engineer-in-Chief i.e.  Head of the Public Works Department, Buildings &  Roads Branch, and the remaining three are offg. Chief  Engineers.   As  against   this,  eleven  of  the  12 respondents have since retired, leaving only one of them. It is always  open to  the State  Government to  reconsider the case of  the  remaining  respondent  in  the  light  of  the principles settled  by  this  judgment  that  the  temporary Assistant Engineers  on  absorption  were  entitled  to  the benefit of  their seniority  from the  date from which their services were  regularised i.e.  the date  from  which  they became ’Members  of the  Service’ within  the meaning  of r. 3(b) of  the Rules.  It is  still open  to the Government to grant him  the necessary relief, if he is found suitable for promotion  to   a  higher   post,  without   disturbing  the appointment, promotion  and confirmation  of the appellants, by the creation of a supernumerary post. 233      I would,  for these  reasons, allow  the appeal and set aside the  A judgment  and order  passed by  the High  Court quashing the seniority list. without any order as to costs. N.V.K.                                        Appeal allowed S.L. 234