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PETITIONER: H.S. VERMA & ORS.

       Vs.

RESPONDENT: SECRETARY, MINISTRY OF SHIPPING & TRANSPORT AND ORS. ETC.,ET

DATE OF JUDGMENT07/08/1979

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR 2086            1981 SCR  (1) 209  1979 SCC  (4) 415

ACT:      Constitution of India 1950, Art. 14-Central Engineering Service Rules  1959-Two different  modes of  appointment  of engineers-By examination and by interview High Court holding interview appointee, not part of the service but to ex-cadre posts-Engineers placed in two categories-Central Engineering Service (Roads),  Group A  for  examination  appointees  and Central  Engineering  Pool  Group  A  for  interview  method appointees-Validity of.

HEADNOTE:      The Central Engineering Service (Roads) of the Ministry of Transport  and Communications,  Department  of  Transport (Roads Wing)  Class-I Recruitment  Rules 1959  provided that recruitment to  the service  shall be  made  by  competitive examination, by promotion and by transfer as provided for in Parts III,  IV, V  of the  Rules. The Rules provided that no appointment shall  be made  to the  service or  to any  post borne on  the cadre  of  the  service  by  any  method,  not specified in  Rule 3.  The Rules empowered the Government to determine  the   methods  of  recruitment  for  filling  any particular vacancy in the service.      An amendment  introduced on August 2, 1966 to Rule 3 of the 1959  Rules provided an additional method of recruitment viz. direct  recruitment through the UPSC in accordance with Part VI  of the  Rules. This  Part provided  that in special circumstances recruitment  by selection of candidates to the posts  mentioned  in  Appendix  IV  shall  be  made  by  the Commission by  open advertisement,  notwithstanding anything contained in the Rules.      Right from  the inception  selection  of  officers  for Class-I posts  was made  by an  examination conducted by the UPSC. After the introduction of r. 3(d) in the 1959 Rules in August 1966,  951 persons  were recruited by the UPSC by way of interviews without written examination.      Some of  the respondents  who were officers selected by written examination  impugned  the  appointment  of  the  51 officers including  the  petitioners  who  were  working  as Assistant Executive  Engineers or Executive Engineers in the same wing  on the  ground that  the appointment  of these 51 officers was  contrary to the Recruitment Rules in that they

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were appointed  in contravention of the 1959 Rules or in the alternative they  contended that  they should  be treated to have been  appointed to  ex-cadre posts  and for this reason they were  not  eligible  for  promotion  to  the  posts  of Executive  Engineers,   until  the  respondents  were  first appointed to  those posts.  Lastly the respondents contended that they were entitled to be confirmed in preference to the petitioners. A  similar writ  petition was  filed  by  three Executive Engineers (among the present respondents) alleging that their  recruitment by  the method of examination was in accordance  with   the  Recruitment   Rules  but   that  the petitioners were appointed by 210 mere interviews,  a method  not permissible  under the Rules and therefore  those who  were appointed by interview method could neither  be confirmed  nor promoted  unless they  were brought into  the cadre  and appointed  to the regular cadre posts.      The High  Court held  that the  Rules of  1966  had  no retrospective operation  and that  therefore an  appointment made in  contravention of the rules could not he regularised by making a rule under the proviso to Art. 309. It also held that the  petitioners  were  appointed  to  temporary  posts without  any   right  to  become  permanent  but  since  the temporary appointments  were outside the service and against ex-cadre posts,  Rule 3  of he 1959 Rules had no application and for  that reason their appointments could not be said to be illegal.      While the  writ petitions were being argued orders were issued  on  August  28,  1973  by  which  persons  who  were appointed  as   Assistant  Executive  Engineers  by  way  of interview  were  deemed  to  have  been  inducted  into  the Engineering Service  as Assistant  Executive Engineers  with retrospective effect  from August  2, 1966  i.e. the date of induction of  r.  3(d)  into  the  1959  Rules.  Provisional seniority  list   was  separately  made  for  the  different categories of  officers. This  order of  August 28, 1973 was not however questioned before the High Court.      In  view   of  the  decision  of  the  High  Court  the Government withdrew  and cancelled  the provisional inter se seniority list dated August 28, 1973 and at the same time it issued a  Notification  to  the  effect  that  the  officers appointed by  the interview  method would  be deemed to have been inducted  into the  Central Engineering Service (Roads) Class-T Service  as temporary  officers in  the  grade  with effect from August 2, 1966.      On March  1, 1976  the Government issued a notification stating that  it had  decided to  set up two services called the Central Engineering Service (Roads) Group ’A’ comprising of  officers   appointed  by   the  method  of  examination/ promotion and  the other Central Engineering Pool, Group ’A’ comprising of officers appointed by the method of interview. Rules in respect of both the services were published and the inter-se seniority list of officers of the two services were circulated to the concerned officers.      The Central Engineering Service Rules constituted a new service called the Central Engineering Service (Roads) Group ’A’ consisting  of (a) persons who were holding posts in the various grades  included in  the Central Engineering Service (Roads) Class  I immediately  before the commencement of the 1959 Rules;  (b) persons  who  were  appointed  to  the  old service on  or after  the date  of commencement  of the 1959 Rules, except  those who  have been  appointed to  the  Pool Service; and  (c) persons  who may  be appointed  to the new service after the commencement of the new Rules

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    The Central  Engineering Pool  Group ’A’  consisted  of persons  appointed   to  the   Roads  Wing   by  competitive examination by  the method  of interview  through  the  UPSC before the  commencement of  the Pool Rules. A note appended to r.  3 contained  a clarification  that the regular tenure service cf  the officers  in the  respective grade  prior to their appointment  to the  Pool would count for the purposes of qualifying  service for promotion and confirmation in the Pool in  the different  grades. Rule 5 authorised Government to 211 keep in  abeyance certain posts and operate them as Isolated Posts outside  the Pool.  Promotions to higher posts in Pool were to  be made  on the recommendations of the Departmental Promotion Committee.      In their  writ petitions the petitioners contended that though they  were appointed  to the  posts long  before  the respondents they  were ranked  much below  the latter in the list of seniority and that consequently they would be denied promotional opportunities  to the  higher posts,  that their segregation into a separate class called the Pool is totally unscientific and  was in  violation of Articles 14 and 16 of the Constitution;  and that  the classification made between the Pool officers and Service officers is discriminatory and bore no nexus with the object sought to be achieved by it. ^      HELD: 1.  Out of  40 posts  of Superintending Engineers the Pool  officers were  occupying 27  posts whereas Service officers held  only 13  posts. There  is a historical reason for this state of affairs. Recruitment on a very large scale was made by the interview method in 1962, 1964 and 1965 fol. execution of  certain urgent  works. Most of the petitioners had a  longer standing  though not  in a  regular cadre, and naturally they  were occupying  even the  two posts  in  the isolated category which were meant for officers belonging to the regular cadre. [224D-E]      2. The  so  called  Pool  created  by  the  1976  Rules consisted of  stagnant  water.  There  is  to  be  no  fresh recruitment to the Pool pos(s and. therefore, allocations to the  Pool   would  always   be  shared  by  I  definite  and predictable number of officers. On the other hand, the other wing was  a living  and growing service to which recruitment continued to  be made  in subsequent  years. Allocations  to that wing would have to be in proportion to the total number of officers working therein but in the very nature of things there  were   budgetary  constraints   on  the  creation  of additional posts. 1224 F-G]      3. It cannot be said that persons holding similar posts and having  similar responsibilities  to discharge  could be classified into  different categories  for the  mere  reason that some  of them  were recruited directly by the interview method and  some were  recruited directly on the result of a competitive examination.  Were it  permissible to  make such classification,  ingenuity   may  suggest   the  nature   of curriculum   in    different   years   as   the   basis   of classification. If subjection tc different kinds of tests as a condition  of eligibility  produces qualitative difference in the ability of persons recruited to similar posts, it may perhaps  become   necessary   to   limit   the   promotional opportunities, in  regard to  the relatively higher posts to those whose  abilities are remarkably higher. The Government had  made   no  grievance  that  the  petitioners  who  were appointed by  the interview  method were in any way inferior in ability,  efficiency  or  educational  qualifications  to those  who   were  appointed  after  a  written  competitive

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examination.  In   the  matter   of  experience   too,   the petitioners were  in no  way inferior  to  the  respondents. [224H-225C]      4. Though  classification which  proceeds merely on the basis  that  certain  persons  were  recruited  after  going through one  test and  certain others  after  going  through another test would be unscientific, it cannot be said on the facts of  the case  that there  could be  no valid  basis or justification for  classifying the  various officers  of the Roads Wing into separate categories. The appointments 212 of some  of the petitioners and some of the respondents were made in  violation of  the Rules  which were in force at the relevant time.  It is  in respect  of that  class of persons that the  High Court  held that  they must be deemed to have been  appointed   to  ex-cadre   posts.  Persons  for  whose appointments the  necessary legal sanction was wanting, were liable to  be put  out of employment but in order to prevent any such  harsh consequence,  the High  Court came to record the finding  that the must be held to have been appointed to ex-cadre post.  That finding  must be  taken  to  have  been affirmed in  these proceedings,  with  the  result  that  no action would  lie hereafter for a declaration or any similar relief asking  that their  appointments were illegal. [225G- 226B]      5. The  fact remains  that persons  who were  appointed contrary to  the Rules,  but to  ex-cadre posts,  were taken initially for purposes of certain projects. Their precarious tenure was  continued from  time to  time but that would not furnish justification  for treating them on the same footing as  others   whose  appointments   were  made   strictly  in accordance with  Rules and who were appointed to posts borne on the  cadre of the Central Engineering Service. A division of these  two classes  of officers  into separate categories would remove  possible injustice to those who were appointed to cadre  posts in  that,  their  promotional  opportunities would not  be blocked  or hindered  by ex-cadre officers who were recruited on a large scale to meet an urgent necessity. Such a  classification would  also  minimise  the  injustice which would  otherwise have  been caused  to those  who were appointed to ex-cadre posts. [226 C-E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 159 of 1977            (Under Article 32 of the Constitution)                             AND                CIVIL APPEAL No. 1275 of 1975      Appeal by  special leave  from the  Judgment and  order dated 28-9-1973  of the  Delhi High  Court in Civil Writ No. 536/70.                             AND       WRIT PETITION NOS. 1211 of 1977 and 3795 of 1978            (Under Article 32 of the Constitution)      Dr. Y. S. Chitale, P. H. Parekh and C. B. Singh for the Petitioners in W.P. 159/77 and appellants in C.A. 1275/75.      M. K.  Ramamurthi, Janardhan Sharma and Jitendra Sharma for the Petitioners in W.P. 1211/77.      J. M. Khanna for the Petitioners in W.P. 3795/78 and RR 6, 12, 13 and 16 in the Appeal.      U. R  Lalit, E.  C. Agrawala and Miss A. Subhashini for R. 1 in W.P. 159/77, 3795/78.      M. Mudgal for RR 12, 14 and 18 in W.P. 159/77.      H. B.  Datar and  B. P. Singh for RR 2-5 in CA 1275/75,

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RR 27- 213                     (Chandrachud, C. J.) 30, 38-40, 42, 44, 47, 49-52 in W.P. 159/77 and R. 4 in W.P. 3795/78.      C. N.  Murthy and  R. Vasudevan  for RR 19-21 and 24 in CA. 1275/75, RR 42, 44, 118 and 150 in WP No. 1211/77.      In person (R. 53 in W. P. 159/77).      COUNSEL FOR THE PARTIES APPEARING PURSUANT To NOTICE:      O. P.  Sharma, J.  M. Khanna,  A. Subba  Rao and  B. P. Singh in Writ Petition No. 159/77.      C. N.  Murthy and  R. Vasudevan in W.P. No. 1211/77 and RR at Sl. Nos.  42-44 and  115-118 of published Notice in W.P. No. 159/77.      Jitendra Sharma in W. P. No. 1211/77      The Judgment of the Court was delivered by      CHANDRACHUD, C.  J.-This is  a group  of Writ Petitions and an Appeal involving the questions, mainly,      (i)     whether  the  petitioners  and  the  appellants           recruited   directly    as   Assistant   Executive           Engineers,  Executive   Engineers,  Superintending           Engineers and,  may be,  as Chief  Engineers  were           appointed to  regular cadres  in the  Ministry  of           Ship ping  and Transport  (Roads Wing), Government           of  India,  or  whether  they  were  appointed  to           ex-cadre posts; and      (ii) whether  they can be put into a separate class for           the purpose  of  regulating  their  seniority  and           promotional opportunities  in relation  to  others           who were  appointed to  similar posts on the basis           of the result of the Combined Engineering Services           Examination. The petitioners and the appellants (whom we will refer to as the ’petitioners’)  were appointed  after a  viva voce  test only, or  to use  the language  of the  current controversy, they were  appointed after being successfully interviewed by the Union  Public Service  Commission. The  latter  mode  of expression helps  to highlight that no "examination" as such was involved  in their  selection and  appointment as in the case of  those  others  who  now  figure  in  the  array  of respondents.      Some of  the respondents  herein, who were then working as Assistant Executive Engineers in the Ministry of Shipping and Transport  II (Roads  Wing), filed a Writ Petition (C.W. 536 of  1970) in  the Delhi  High Court against 51 officers, including the present petitioners, who 214 were working  either as  Assistant Executive Engineers or as Executive Engineers  in the  same Wing. Their contention was that the  appointment of these 51 officers being contrary to the recruitment  rules was  illegal or  alternatively,  that they were  appointed  to  ex-cadre  posts  and  not  to  the ’Central Engineering  Service’.  It  was  therefore  claimed that none  of those  officers was  eligible for promotion to the post  of Executive  Engineer until  the respondents were first appointed to those posts and that the respondents were entitled  to   be  confirmed   with  immediate   effect  ill preference to those officers immediately on the availability of permanent vacancies.      A similar Writ Petition (C.W. 537 of 1970) was filed in the Delhi  High Court  by three Executive Engineers, who are amongst the  present respondents,  contending  that  whereas their appointment  after passing  a competitive  examination held by  the U.P.S.C. was in accordance with the recruitment

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rules, the  present petitioners  were appoint ed to ex-cadre posts  after  a  mere  interview,  that  such  a  method  of recruitment was  not permissible  under the  rules, that the petitioners herein were appointed for the limited purpose of assisting in  the execution  of certain  projects  and  that those who  were appointed  in accordance with the rules were entitled to  be treated  as senior to those who were not. It was for these reasons contended that Executive Engineers who were appointed  by  the  interview  method  can  neither  be confirmed nor  promoted unless  and until  they were brought into the cadre and appointed to the regular cadre posts.      The Rules  which arc  alleged to  have been breached by the  appointment   of  the  petitioners  were  made  by  the President  under   the  proviso   to  article   309  of  the Constitution. They  were notified  on October  16, 1959  and were called  ’the Central Engineering Service (Roads) of the Ministry of  Transport and  Communication  .  Department  of Transport (Roads  Wing), Class  T, Recruitment Rules, 1959’. The Rules, evidently, did not provide for appointment to the Central Engineering  Service after  a mere  interview  of  a candidate by  the Union  Public Service Commission. But they were amended by a notification dated August 2 1966 issued by the President  under the  proviso  to  article  309  of  the Constitution. By the amendment, clause (d) was added to rule 3 as  a result  of which appointments could be made 3 to the Central Engineering  Service by  direct recruitment  through the Commission in accordance with Part VI of the Rules. Part VI of  the  amended  Rules  called  ’Direct  recruitment  by selection through  the Commission  provided that  in special circumstances direct  recruitment by  selection of  suitable candidates, with  such  qualifications,  with  in  such  age limits, and satisfying such other conditions as are consi- 215 dered necessary  at any time in the interest of the service, to the  posts mentioned in Appendix IV, shall be made by the Commission by  open advertisement  notwithstanding  anything contained  in   the  rules.   Certain  other   consequential amendments  were   made  to  the  1959  Rules  by  the  1966 Amendment.      The question which arose for decision of the Delhi High Court in the two writ petitions was whether the appointments of the  petitioners herein,  who  were  appointed  prior  to August 2,  1966 were  illegal and  if not, whether they were appointed to cadre posts or ex-cadre posts. on behalf of the Government of  India a  counter affidavit  was filed  in the High Court  by Shri  Harbans Singh,  Under Secretary  in the Ministry  of   Transport  (Roads  Wing),  denying  that  the petitioners were  appointed to  ex-cadre posts  or that they were treated  by the  Ministry as  being outside the regular cadre of Engineering Service. Counsel for the Union of India submitted in the High Court that all posts of junior Class-I Assistant Engineers Consultant (as the   Assistant Executive Engineers were  then called)  created  in  the  Ministry  of Transport, Roads  Wing, were  posts in  the service properly so-called whether  the appointments were made on a permanent basis  or   temporary  basis.   Counsel  for   some  of  the petitioners contended  in the  High Court that the amendment made in  1966  to  the  1959  Rules  was  retrospective  and therefore the  appointments  of  the  petitioners  could  be considered to have been made in accordance with the rules to the posts borne on the cadre of the Engineering Service.      The Delhi  High Court  was  faced  with  a  problem  of priorities. If  it were  to accept the Government of India’s contention that  the petitioners  were  appointed  to  cadre posts, their  appointments might  have been  required to  be

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treated as  illegal since appointments to posts borne in the cadre could  not be  made by  the interview method under the 1959 Rules.  Any finding  or indication to such effect would have paved  the way  for a challenge to the very legality of the petitioners’  appointments and  eventually to their exit from the  Engineering Department  altogether. On  the  other hand, accepting the respondents’ contention that all of them had to  be confirmed  and  promoted  in  preference  to  the petitioners  would,   while  legalising   the   petitioner’s appointments? virtually  amount to  denial of  promotions to them in higher posts.      By its  judgment dated  September 28,  1973 a  Division Bench of  the Delhi  High Court  held that the Rules of 1966 had no  retrospective operation.  Relying upon a decision of this Court in R. N. Nanjundappa v. T. Thimmaiah and Anr. the High Court further held 216 that in  any case,  an  illegal  appointment  could  not  be regularised by  making a  rule under  the proviso to Article 309  of   the  Constitution.   But  in  order  to  save  the petitioners’ appointments  from the challenge of illegality, the High  Court rejected  the Government’s  contention  that they  were   appointed  to   cadre  posts   in  the  Central Engineering Service.  It  held  that  the  petitioners  were appointed to  temporary posts  without any  right to  become permanent,  for   the  purposes   of   projects   like   the International  Development   Association   Loan   Programme, Emergency Road  and Bridge  Works Programme and Lateral Road Project  and  Strategic  Roads  Work.  Since  the  temporary appointments of the petitioners were outside the service and against ex-cadre  posts,  rule  3  of  the  1959  Rules  was regarded  as   having  no  application  and  therefore,  the petitioners’ appointments could not in any way be said to be illegal. The High Court relied upon a decision of this Court in Champaklal  Chimanlal Shah v. The Union of India and held that the  Government has  to employ  temporary  servants  to satisfy  the   needs  of   urgent  contingencies   and  such appointments are  perfectly  legitimate.  So  long  as  such temporary servants  work against ex-cadre posts and are even promoted to higher ex-cadre posts, no member of the Service, according to  the  High  Court,  could  have  a  justifiable grievance.      While the  writ petitions were being argued in the High Court, orders  expressed in  the name  of the President were issued on  August 28,  1973 by  which persons  appointed  as Assistant Executive  Engineers on  the basis  of  interviews held by  the U.P.S.C.  were  to  be  ’deemed  to  have  been inducted’  into   the  Engineering   Service  as   Assistant Executive Engineers  with effect from August 2, 1966. On the same date,  provisional joint-seniority  lists  were  issued separately for  different categories  of Class  I  Technical Gazetted officers  in the  Roads Wing  of The  Ministry  and representations from  the concerned  officers  were  invited within a period of one month. The parties requested the High Court to  dispose of  the writ petitions without taking into consideration the  effect and  legality of  the Presidential order dated  August 28,  1973 and  the provisional seniority lists circulated  on that  date. Accordingly, the High Court did not pronounce upon the same.      In C.W.  536 of  1970 filed  by 4  Assistant  Executive Engineers who  were appointed  by  competitive  examination, against 4  Executive Engineers  and 47  Assistant  Executive Engineers who  were appointed  be the  interview method, the High Court passed the following order: -           "To summarise  the position, it may be stated that

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    respondents 2  to 52  were not appointed to the Service      or to 217      any posts  borne on  the cadre  of the  Service.  Their      appointments were  to ex-cadre  posts and  outside  the      Service and  those appointments  were valid. The orders      by which  respondents 2 to 6 were promoted as Executive      Engineers are  not liable to be quashed as it could not      be shown  that the  promotions were  made to  the posts      borne on  the cadre  of the Service or that as a result      of  those   promotions  the   respondents  came  to  be      appointed to the Service. Their initial appointments 35      well as  promotions have  been outside  the service and      not to  any posts  borne on  the cadre  of the Service.      There is  also no question of giving any directions for      not promoting  any of  the respondents  to the posts of      Executive Engineers  so long  as the promotions are not      to  posts  borne  on  the  cadre  of  the  Service.  As      respondents 2  to 52  were not appointed to the Service      or to  any posts borne on the cadre of the Service, the      only relief  to which  the petitioners  are entitled is      that the  Union of India shall not, so long as the said      respondents are  not legally appointed to the Ser- vice      or to  any posts  borne on  the cadre  of the  Service,      treat them  as having  been appointed to the Service or      promote them  to any  posts that may be included in the      cadre of the Service."      C.W. 537  of 1970  was filed  by 3  Executive Engineers against 1(3  Executive Engineers, 2 of whom were promoted as Superintending Engineers.  All the three petitioners in that writ petition were appointed by competitive examination, two in 1957  and one  in 1958, that is to say, before the making of the 1959 Rules. Respondents 2 to 11 to that writ petition were  appointed  by  the,  interview  method.  The  question whether the  petitioners in  that writ petition, having been appointed prior  to 1959 Rules, could be deemed to have been appointed to  the regular  cadre of  the Central Engineering Service was  not considered  by the  High  Court  since  the legality of  their  appointment  was  not  in  issue.  While dismissing the writ petition the High Court held.           "As respondents  2 to 11 were not appointed to the      service and  no posts  have so  far been declared to be      posts borne on the cadre of the Service it follows that      they are holders of ex-cadre posts outside the Service.      The promotion  of any one of them to the higher post of      Planning  officer  or  Superintending  Engineer  cannot      legally be  objected to  by the  petitioners.  Even  if      somehow the petitioners can be regarded to have been 218      appointed to  the Service,  as was  asserted  on  their      behalf, still  respondents 2 to 11 having been-directly      selected as  Executive Engineers against ex-cadre posts      can in  their turn  aspire for  promotion to higher ex-      cadre  posts..   ..  ....   ..  The   appointments   of      respondents 2  to 11  to ex-cadre posts, were in no way      invalid."      In both  the writ  petitions  the  High  Court  made  a significant observation,  to which  events  leading  to  the present proceedings  may perhaps  be traced,  that if it was desired by  the Government  of India,  that persons who were appointed against  ex-cadre posts should also become members of the  regular  Service,  the  service  shall  have  to  be reconstituted by  providing, amongst  other matters, for the initial constitution  of the Service, future recruitment and determination of inter se seniority.

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    On May 31, 1974 the Government of India in the Ministry of Shipping  and Transport  (Roads Wing) issued a Memorandum saying L  that in view of the judgments of the High Court in the two  writ petitions,  the provisional inter se Seniority Lists dated  August  28,  1973  of  all  Class  I  Technical Gazetted officers  appointed to  the various  grades in  the Roads Wing were being withdrawn and cancelled.      On the  same  date,  that  is,  on  May  31,  1974  the President  issued  a  Memorandum  in  each  individual  case cancelling the  orders issued  under an  earlier  Memorandum dated August  28, 1973. By the latter Memorandum orders were issued in  each individual  case that  officers appointed by the interview  method will  be deemed  to have been inducted into Central  Engineering Service (Roads) Class I Service as temporary officers  in the particular grade with effect from August 2,  1966 being  the date on which the 1959 Rules were amended so  as to  provide for  appointment by the interview method. The Memorandum of May 31, 1974 contains a recital to the effect  that it had become necessary to issue it in view of the judgment of the Delhi High Court in Writ Petition No. 536 of  1970 holding  that the Assistant Executive Engineers could not  be treated  as having  been appointed to any post borne on the cadre of the Central Engineering Service.      On March  1, 1976  the Government  of  India  issued  a Notification saying  that having  regard to the judgments of the High  Court in Civil Writ Petitions 536 and 537 of 1970, the  Government  after  a  most  careful  consideration  had decided to  set up 2 Services for Technical Class I officers of the  Roads Wing, one to be called the Central Engineering Service (Roads),  Group A,  comprising of officers appointed by the method of examination/promotion, and the other, to be called the 219 Central Engineering  Pool, Group  A, comprising  of officers appointed by  the method of interview. The recruitment Rules for the  two Ser  vices were  published in  the issue of the Gazette of  India, dated  February 28,  1976. Two Lists, one showing the names of officers appoint ed to the two Services on the  date of  the commencement  of the  new Rules and the other showing  the inter se seniority of the officers of the two Services, were circulated to the officers concerned with a request  to bring  to the  notice of  the  Government  any factual errors  or omissions  and to submit representations, if so  advised, against  the proposed Seniority Lists within one month.      We will  notice the relevant rules before proceeding to consider the validity of the petitioners’ contentions.      On October  16, 1959,  the President in the exercise of powers conferred  by the  proviso  to  article  309  of  the Constitution made  rules  called  ’the  Central  Engineering Service   (Roads)   of   the   Ministry   of   Transport   & Communications, Department  of Transport  (Roads Wing) Class I, Recruitment  Rules, 1959’. At the time of promulgation of these Rules, Assistant Executive Engineers used to be called Assistant V  Engineers Consultant and Executive Engineers as Divisional  Engineers  Consultant.  Part  II  of  the  Rules containing rules 3 to 5 dealt with the method of recruitment to the  Central Engineering Service (Roads). Rule 3 provided that Recruitment  to the Service shall be made by any of the following three  methods: (a)  By competitive  examination m accordance with  Part III  of the Rules; (b) by promotion in accordance with Part IV of the Rules; and (c) by transfer of an officer  in Government  service in accordance with Part V of the  Rules. Rule 4 (b) provided that no appointment shall be made  to the Service or to any post borne on the cadre of

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the Service  by any  method not specified in rule 3. By rule 4(c) Government was given the power to determine, subject to the provisions  of sub-rule  (3), the methods of recruitment to be  employed for  the purpose  of filling  any particular vacancy in  the Service  or such vacancies therein as may be required to  be filled  during any particular period and the number of  candidates to  be recruited  by such method. Rule 4(d) provided  for reservation  in the  ratio of 2/3: 1/3 to Assistant  Engineers  Consultant  and  Assistant  Engineers, Grade I  (Class II)  respectively in the matter of promotion to or  for selection  for the  post of  Divisional  Engineer Consultant. Rule  4(d) contained  an important qualification to  the   effect  that  if  sufficient  number  of  suitable candidates were  not available  for promotion from the grade of Assistant  Engineer  Consultant  and  Assistant  Engineer Grade I  to the grade of Divisional Engineer Consultant, the remaining vacancies  in the  grade  of  Divisional  Engineer Consultant were  to be filled by transfer in accordance with Part V of the Rules. 220      Part III  of the  Rules containing  rules 6 to 18 dealt with recruitment  to the Service by competitive examination. Part  IV  containing  rule  19  dealt  with  recruitment  by promotion to  the grade  of Divisional  Engineer Consultant, Class I. Sub-rule (2) of rule 19 provided that if sufficient number of  officers were  not available to fill the quota of either of  the two  categories mentioned  in rule 19 (1) (i) the remaining  vacancies in  each category were to be filled either in accordance with Part V of the Rules or through the Commission.      Part V  of the  Rules which  dealt with  recruitment by transfer of  an officer  in Government service provided that the Government  may, in  special cases  and after consulting the Commission  where such  consultation was necessary under the  Union   Public  Service   Commission  (Exemption   from Consultation) Regulations, transfer or take on deputation an officer in  Government service  in India  to a post borne on the cadre of the Service.      On August  2, 1966  the Rules  of 1959  were amended in exercise of  powers conferred  by the proviso to article 309 of the Constitution. The first significant amendment made in 1966 was  the addition  of clause  (d) to rule 3 of the 1959 Rules. By  that clause  an additional  method or recruitment was provided,  namely, ’By  direct recruitment  through  the Commission  in  accordance  with  Part  VI’  of  the  Rules. Consequential amendments were made to clauses (c) and (d) of rule 4  of the 1959 Rules. By rule 4 of the Amendment Rules, the concluding  words "or  through the  Commission" of  rule 19(2) of  the 1959  rules were  omitted. Lastly, a new part, Part VI,  was added  to the  1959 Rules  under  the  heading "Direct recruitment  by selection  through the  Commission". The newly added Part VI provided that-      In  special   circumstances,  direct   recruitment   by      selection   of    suitable   candidates,    with   such      qualifications, within  such age limits, and satisfying      such other  conditions as  are considered  necessary at      any time  in the  interest of the service, to the posts      mentioned  in   Appendix  IV,  shall  be  made  by  the      Commission  by   open   advertisement   notwithstanding      anything contained in these rules.      The Central  Engineering Pool Group ’A’ of the Ministry of Ship  ping and Transport (Roads Wing) Rules, 1976 and the Central  Engineering   Service  (Roads)  Group  ’A’  of  the Ministry of  Shipping and Transport (Roads Wing) Rules, 1976 made under  the proviso  to article  309 of the Constitution

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were notified  on February  24, 1976.  We will  refer to the former as  the ’Pool  Rules’ and  to the  latter as the ’CES Rules’. 221      Turning first  to the  Pool Rules,  rule  2(a)  defines "Pool"  as   the  "Central   Engineering  Pool,  Group  ’A’, constituted under rule 3". Rule ’’(e) provides that "Regular continuous Service"  means service  rendered on a continuous basis  after   regular  appointment   to  a   grade  on  the recommendations of  the Departmental Promotion Committee, or in consultation with the Commission, as the case may be.      Part  II  of  the  Pool  Rules  which  deals  with  the constitution of  the Central  Engineering Service  Group ’A’ provides that there shall be constituted a pool, to be known as the  "Central Engineering Pool Group ’A’ ", consisting of persons appointed  to the  Roads  Wing  by  the  competitive selections by the method of interview through the Commission before the  commencement of the Pool rules The note appended to rule  3 contains  a clarification  to the effect that the regular continuous service of the officers in the respective grade in the Ministry of Shipping and Transport (Roads Wing) prior to  their appointment  to the  Pool will count for the purposes   of   qualifying   service   for   promotion   and confirmation in the Pool in the grade of Assistant Executive Engineers,  Executive  Engineers,  Superintending  Engineers and, Chief  Engineers (Level  I and Level II posts). By rule S, the authorised strength of the various grades of posts in the pool  shall be such as may be determined and notified by the  Government   from  time  to  time,  provided  that  the Government may, for reasons to be recorded in writing and in consultation with  the Commission,  keep  in  abeyance  such number of  posts in such grades as are included in the table below rule  4 and  operate them  as "isolated posts" outside the Pool.  Appointments to  the "isolated  posts" are  to be made by  selection- or promotion, as the case may be, on the recommendation of  a duly constituted Departmental Promotion Committee, from  an integrated  list of  officers working in the next  lower  grade  in  the  Pool  and  in  the  Central Engineering Service  (Roads), Group  ’A’. The  list is to be drawn up  on the  basis  of  the  length  of  their  regular continuous  service   in  their   respective   grades.   The qualifying service for promotion is the same as laid down in Part III.  By rule 6, recruitment to the grades of Executive Engineer, Superintending  Engineer and Chief Engineer (Level II and  Level I)  in the  Pool shall be made by promotion in accordance with  Part III,  provided that a vacancy in these grades,  whenever  it  occurs,  shall  first  be  filled  by transfer of  an officer  of the Pool holding a corresponding post in  the "isolated category of posts" in accordance with the proviso to rule 5.      Part III  of the  Pool Rules  deals with recruitment by promotion   to    the   grades    of   Executive   Engineer, Superintending Engineer and Chief 222 Engineer. These  promotions are  required to  be made on the recommendations of the Departmental Promotion Committee      The CES Rules contain provisions governing appointments to  the  Central  Engineering  Service  as  contrasted  with appointments to  the posts in the Pool. By rule 3 of the CES Rules a  new Service called the "Central Engineering Service (Roads), Group  ’A’ " is constituted of (a) persons who were holding posts  in the various grades included in the Central Engineering Service  (Roads) Class  I immediately before the commencement  of  the  1959  Rules,  (b)  persons  who  were appointed to  the old  Service  on  or  after  the  date  of

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commencement of  the 1959  Rules, except those who have been appointed to  the Pool  Service and  (c) persons  who may be appointed to  the new  Service after the commencement of the new Rules.  Rule 3 (3) contains a proviso regarding isolated posts which  is similar to the proviso to rule 5 of the Pool Rules. By  rule 3  (4), recruitment to the Service after the initial constitution  thereof  has  to  be  made  either  by competitive examination  or by  promotion or by selection or by transfer  or  deputation  of  an  officer  in  Government service or by direct recruitment through the Commission. The proviso to  this sub-rule  says that a vacancy in the grades of Executive  Engineer, Superintending  Engineer  and  Chief Engineer (Level  II and  Level I), whenever it occurs, shall first be  filled by  the appointment  of an  officer of  the Service  holding  a  corresponding  post  in  the  "isolated category of  posts" in  accordance with  the proviso to sub- rule (3).      The validity  of these  rules is  assailed before us in these Writ  Petitions and  the Appeal. The main grievance of the petitioners  is that though they were appointed to their posts long before the contesting respondents, they will rank much below  the latter  in the  list of  seniority and  will consequently be  denied  promotional  opportunities  to  the higher posts.  It is  contended on behalf of the petitioners that their segregation into a separate class called the Pool is  totally   unscientific  and   is  in  violation  of  the provisions of  articles 14  and 16  of the Constitution. The petitioners made  no grievance  against the  creation of the category of  ’isolated posts’  but their  contention is that the classification  made between  the Pool  officers and the Service officers is discriminatory and bears nexus with the’ object  to   be  achieved  by  it.  If  the  object  of  the classification is to ensure higher efficiency in the Central Engineering Service,  it is  contended that the petitioners, who have  rendered meritorious  service for  the  past  many years  and   for  longer   periods   than   The   contesting respondents, cannot’  be put  into a  separate class thereby denying to them an equal opportunity for promotion to higher posts along  with those junior officers who are put into the class of Service 223 Officers. Shri  Chitale, who  led the  argument on behalf of the  petitioners,   demonstrated  to  us  by  a  comparative examination  of   the  allocation   of  posts  made  by  the Government to  the two  categories in  the exercise  of  the power conferred upon it by the 1976 Rules, that’ whereas, 15 posts of  Superintending  Engineers  are  available  for  19 Executive Engineers  in the  Service Class, in so far as the Pool officers  are concerned  only 17  posts in the grade of Superintending Engineer  have been  allocated for as many as 69 Executive  Engineers. Out  of 15  posts of Superintending Engineers available  for the Service category, 13 are put in the Service  class and 2 in the isolated category. Out of 17 posts  of   Superintending  Engineers   available  for  Pool officers, 8  are put  in the  Pool and  9  in  the  isolated category. This broadly is the grievance or the petitioners.      As against  this, Shri Lalit appearing on behalf of the Union of  India contends  that the  judgment rendered by the Delhi High Court in the two writ petitions left no option to the  Government  save  to  classify  The  petitioners  in  a separate  category.  Counsel  says  that  in  spite  of  the contention of  the  Government  that  the  petitioners  were appointed to  cadre posts  in the regular Service, the Delhi High Court  held in the writ petitions that petitioners were appointed to  ex-cadre posts  and that if their appointments

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were to  be treated  as having been made to cadre posts, the appointments would be illegal, being in contravention of the rules then  hl force.  The High  Court having  held that the petitioners were  appointed to  ex-cadre posts,  there is  a valid basis  for classifying  the petitioners  in a separate category  qua   others  whose   appointments  were  made  in accordance with  the rules.  It is  denied on  behalf of the Government that  any  substantial  prejudice  is  likely  to result to  the petitioners  on account of the classification made by  the 1976 Rules. In fact, Shri Lalit urged as one of his strongest  points that  granting everything in favour of the petitioners, the classification did not bring about such hostile discrimination  against the  petitioners  that  this Court should  take notice of it. It is argued that it is not the 1976  Rules which  have created two distinct classes but such classes  existed independently  or the rules, by reason of the fact that persons like the petitioners were appointed contrary to  the rules while the contesting respondents were appointed  in   conformity  with  the  rules.  There  is  no obligation on  the Government, it is contended, to integrate two distinct  and different classes of employees in order to bring about equality between them.      Shri H.  B. Datar  appearing for some of the contesting respondents supported  the arguments  advanced on  behalf OF the  Government  of  India  and  contended  that  since  the appointments of the petitioners who 224 were appointed  by the  interview method  were at  any  rate under a  cloud the  Government was  driven to  classify them separately in  order  to  protect  their  tenure  which  was essentially  precarious   and  insecure.   The   object   of classifying the  petitioners separately,  far from  being to subject them  to hostile  discrimination, is  to confer upon them a  status which  could easily and justifiably be denied to them.  The Government,  according to Shri Dadar, has been more than  fair to the petitioners firstly, by condoning the illegality which  had  crept  into  their  appointments  and secondly, by allocating to them a sufficient number of posts of promotion.  No grievance could be made by the petitioners that the Government is generous but not generous enough.      We are not disposed to accept Shri Chitale’s contention in its entirety that any great prejudice has been occasioned to the petitioners as a result of the classification made by the 1976  Rules. Out of 4 posts of Superintending Engineers, the Pool  officers are  occupying  27  whereas  the  Service officers hold  13 only.  The break-up  is as follows. out of these 40,  19 are  placed in the isolated category. These lg posts and  8 posts  of Superintending  Engineers in the Pool are occupied  by the  Pool officers.  There  is  a  historic reason for  this state  of affairs.  Recruitment on  a  very large scale  was made  by the interview method in 1962, 1964 and 1965  for the execution of the International Development Association  programme,  Emergency  road  and  bridge  works programme, Lateral  Road Project and Strategic Road works in Gujarat and Rajasthan. Most of the petitioners have a longer standing, though  not in  the regular  cadre, and  naturally they are  occupying even  the  two  posts  in  the  isolated category which  are meant  for  officers  belonging  to  the regular cadre.      It is  also necessary  to remember, while assessing the strength  of   the   petitioners’   grievance   of   hostile discrimination that  the so  called Pool created by the 1976 Rules consists  of stagnant  water. There  is going to be no fresh  recruitment   to  the   Pool  posts   and  therefore, allocations to  the Pool will always be shared by a definite

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and predictable  number of  officers. On the other hand, the other  wing  is  a  living  and  growing  service  to  which recruitment will  continue to  be made  in  years  to  come. Allocations to  that wing  will of  course have to be in pro portion to  the total number of officers working therein but in the very nature of things there are budgetary constraints on the creation of additional posts.      Even though  this is  so, we  are unable  to accept the contention that  persons holding  similar posts  and  having similar responsibilities to discharge can be classified into different categories  for the  mere reason that some of them were recruited  directly by  the interview  method and  some were recruited directly on the result of a com- 225 petitive examination.  Were  it  permissible  to  make  such classifications,  ingenuity   may  suggest   the  nature  of curriculum   in    different   years   as   the   basis   of classification. If subjection to different kinds of tests as a condition  of eligibility  produces qualitative difference in the ability of persons recruited to similar posts, it may perhaps  become   necessary   to   limit   the   promotional opportunities, in  regard to the relatively higher posts, to those whose  abilities are  remarkably higher.  But,  it  is nobody’s case  and the Government has made no grievance that the petitioners  who were  appointed by the interview method are  in   any  way   inferior  in   ability,  efficiency  or educational qualifications to those who were appointed after a  written   competitive  examination   In  the   matter  of experience too,  the petitioners  are in  no way inferior to the contesting respondents.      Both the  sides urged,  though for  different  reasons, that at  least  some  of  the  Executive  Engineers  can  be justifiably treated differently. On behalf of the Government Shri Lalit  urged that 10 out of 69 Executive Engineers from the 1962 batch were parties to the Delhi High Court judgment in Writ Petition 536 of 1970 (out of which Civil Appeal 1275 of 1975 arises). The Delhi High Court having held that their appointments are  to ex-cadre  posts, no  grievance,  it  is urged, can  be made by them at any rate, if they are treated differently. On  the other hand, Shri Chitale contended that the  appointment   of  those   Executive  Engineers  was  in accordance with rule 19(2) of the 1959 Rules since they were appointed because  no one  was available from the Department for being promoted as Executive Engineer      We do  not want  to add to the confusion in which these matters, like Most of the service matters abound, by putting our  seal   of  approval  on  a  sub-classification  amongst Executive Engineers  depending on whether their appointments were within or without the scope of rule 19(2). It is in the interest of  all concerned to evolve a uniform pattern which will, in  so far  as is reasonably possible, cause injustice to none.      Though classification  which  proceeds  merely  on  the basis that  G: certain  persons were  recruited after  going through one  test and  certain others  after  going  through another test would be unscientific. it cannot be said on the facts of  the instant  case that there can be no valid basis or justification for classifying the various officers of the Roads Wing  into separate  categories.  As  we  have  stated earlier, the  appointments of  some of  the petitioners  and some of  the respondents were made in violation of the rules which were  in force  at the relevant time. It is in respect of that class of person that the Delhi High 226 Court was  driven to  hold that  they must be deemed to have

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been  appointed   to  ex-cadre   posts.  Persons  for  whose appointments the  necessary legal sanction was wanting, were liable to  be put  out of employment but in order to prevent any such  harsh consequence,  the Delhi  High Court  came to record the  finding that  they must  be held  to  have  been appointed to ex-cadre posts. T. hat finding must be taken to have been  affirmed in  these proceedings,  with the  result that no  action will  lie hereafter for a declaration or any similar relief asking that their appointments are illegal.      But, the  fact remains  that persons who were appointed contrary to  the rules  but to  ex-cadre  posts  were  taken initially for  purposes of certain projects to which we have already referred.  Their pre  carious tenure  was  continued from time  to time  but that  will not furnish justification for treating  them on  the  same  footing  as  others  whose appointments were made strictly in accordance with the rules and who  were appointed  to posts  borne on the cadre of the Central Engineering Service. A division of these two classes of officers  into separate  categories will  remove possible injustice to  those who  were appointed  to cadre  posts  in that, their promotional opportunities will not be blocked or hindered by  ex-cadre officers who were recruited on a large scale to  meet an  urgent necessity.  Such a  classification will also  minimise the injustice which would otherwise have been caused to those who were appointed to ex-cadre posts.      Taking  all   relevant  aspects   of  the  matter  into consideration we  propose to pass the following order which, it must  be stated, was discussed by us quite at some length with all  the learned  counsel appearing  in  the  case.  In fairness to them we must say that the order which we propose to pass does not proceed from their consent though they have helped to shape it.           (1)  All persons  appointed in accordance with any                of the  modes of  appointment  prescribed  by                rule 3  or rule  19(2) of the 1959 Rules must                be  taken  to  have  been  appointed  to  the                regular  cadre  of  the  Central  Engineering                Service.  It   will  not  be  permissible  to                classify them  separately as  ’pool’ officers                or other wise.           (2)     Those  whose   appointments  are   not  in                accordance  with   any  of   the   modes   of                appointment prescribed  by  rule  3  or  rule                19(2) of  the 1959  Rules, shall  be taken to                have been appointed to ex-cadre 227                posts. Such  persons may be classified into a                separate category  from those  referred to in                clause (1) above           (3)   The Central  Government will  scrutinise the                cases of  all persons involved in the present                proceedings, who  have  been  placed  in  the                ’pool’.  The   Government  shall,  upon  such                scrutiny, decide  whether the  appointment in                each particular  case was  made in conformity                with rule  3 or rule 19(2) of the 1959 Rules.                All persons concerned may, if they so desire,                submit   their    representations   to    the                authorities  concerned  before  1st  October,                1979. On consideration of the representations                and  upon   examination   of   the   relevant                material, the Central Government shall make a                declaration before  1st January, 1980 whether                any and  which appointment  was in accordance                with rule  3 or  rule 19(2) of the 1959 Rules

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              and  which   was  against   the   same.   The                classification  of   the  officers  concerned                under clauses  (1) and  (2) above will depend                upon and be governed by the declaration to be                made by the Government.           (4)   Cases of  all persons,  who according to the                declaration to  be made by the Government are                wrongly  placed   in  the  ’pool’,  shall  be                reviewed  by   the  Government   or  by   the                appropriate authority  as the  case  may  be.                However, all  promotions made  prior to 31-5-                1974 will remain undisturbed. Promotions made                after that  date shall  be  reviewed  by  the                appropriate authority,  as  expeditiously  as                possible, in  the light  of the  declarations                made by  the Government so as to give to such                officers the  promotions  which  are  due  to                them.      This order takes note of the grievance of those persons also who have been placed in the ’pool’ but who contend that they have    been  wrongly  included  therein,  since  their appointments were  in accordance with the 1959 Rules as they stood at the time of their recruitment.      The Writ  Petitions and the Appeal shall stand disposed of in,  terms of  this order.  There will  be no order as to costs. N.V.K. 228