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PETITIONER: P.D. AGGARWAL & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT08/06/1987

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

CITATION:  1987 AIR 1676            1987 SCR  (3) 427  1987 SCC  (3) 622        JT 1987 (2)   606  1987 SCALE  (1)1283

ACT:     Constitution of India--Arts. 14 and 16--Validity of  rr. 3(c),  5, 6 and 23 of the U.P. Service of Engineers  (Build- ings  and  Roads Branch), 1936 as amended by  the  Amendment Rules  of 1969 and 1971--Assistant  Engineers  substantively appointed  to temporary posts prior to the amendment of  the Rules are entitled to have their seniority reckoned from the date of their appointment irrespective of the posts, held by them  remaining temporary--Rights vested in them  under  the 1936  Rules  cannot be taken away  by  giving  retrospective effect to the Amendment Rules of 1969 and 1971.

HEADNOTE:     Rule  3(c) of the U.P. Service of  Engineers  (Buildings and  Roads  Branch)  Class II Rules,  1936  defined  ’direct recruitment’  or  ’direct  appointment’  as  recruitment  or appointment of Assistant Engineers in the manner  prescribed in r. 5(i), (ii) and (iii) thereof, after consultation  with the Public Service Commission. Rule 6 empowered the  Govern- ment to decide in each case the source from which a  vacancy shall  be filled up provided that 25% of the vacancies  were reserved for promotion of persons selected from  subordinate services.  Rule 3(b) thereof defined a ’member of the  serv- ice’  as  a government servant appointed  in  a  substantive capacity.  Rule 23 stipulated that seniority in the  service shall  be determined by the date of order of appointment  to the service.     By  an  Office Memorandum dated December  7,  1961,  the State  Government laid down that direct recruitment  to  the posts of Assistant Engineers would be made on the results of a  competitive examination conducted by the Commission,  the successful candidates being appointed in the order of  merit against vacant permanent posts and, those following, against temporary posts. It was further laid down that while 50%  of the permanent vacancies in the Department would be filled by direct recruitment, 25% of them would be filled by selection from  amongst  the temporary Assistant  Engineers  recruited through  the Commission and for this purpose  the  temporary Assistant  Engineers already working in the  Department  who were appointed on the advice of the Commission prior to  the introduction of the new scheme and who

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428 possessed the requisite qualifications were given relaxation in the age limit upto 40 years for appearing in the competi- tive  examinations to be conducted by the Commission.  As  a measure  of  further concession to  the  existing  temporary Assistant  Engineers, it was provided that initially 50%  of the  permanent vacancies would be filled up by selection  of temporary Assistant Engineers and only 25% thereof would  be filled  up by direct recruitment. The  competitive  examina- tions were held commencing from the year 1962.     On  July  28, 1969, the State  Government  brought  into force  the  U.P. Service of Engineers (Buildings  and  Roads Branch) Class II (Amendment) Rules, 1969 with  retrospective effect from March, 1962 amending inter alia rr: 3(b),  3(c), 5  and  6 of the 1936 Rules to bring them in line  with  the scheme enunciated in the Office Memorandum dated December 7, 1961.     On  November  26, 1971, r. 23 was amended  by  the  U.P. Service  of Engineers (Buildings and Roads Branch) Class  II (Amendment) Rules, 1971 as under:               "Except as provided for hereunder seniority in               the service will be determined by the date  of               order   of   appointment  in   a   substantive               vacancy  ...."     The  competitive examinations for direct recruitment  of Assistant  Engineers in accordance with the new Scheme  were held upto the year 1971 and were discontinued by the  execu- tive  instruction contained in Office Memorandum dated  June 23,  1972 as it was felt that the system had done more  harm than good to the service.     The  respondents, who were directly recruited  Assistant Engineers appointed, after consultation with the Commission, to  temporary  posts in the cadre upto 1961  challenged  the seniority  list  prepared  in 1980 in terms  of  the  Office Memorandum  dated December 7, 1961 and the Amendment  Rules, 1969 and 1971 as violative of Arts. 14 and 16 of the Consti- tution  and prayed for determination of their  seniority  on the basis of the length of their continuous service in terms of  the decision of this Court in Baleshwar Dass &  Ors.  v. State  of U.P. & Ors., [1981] 1 S.C.R. 449. The  High  Court allowed  the petitions and directed preparation of  a  fresh seniority  list by treating the appointments of  respondents as substantive appointments to the cadre. The appellants  in these  appeals  were  those  temporary  Assistant  Engineers working in the Department who were selected for  appointment to permanent vacancies            429 on  the results of the competitive examinations held by  the Commission. Dismissing the appeal, this Court,     HELD:  There is no controversy that all those  Assistant Engineers  who  were substantively  appointed  to  temporary posts  in  consultation  with the Commission  and  had  been rendering their service for long years till 1961 have become members of the service in accordance with the provisions  of the Rules. Therefore, on the basis of r. 23 as it was before the  amendment made in 1971, these Assistant  Engineers  are entitled  to have their seniority reckoned from the date  of their  being members of the service, no matter whether  they are  holding posts which remain as temporary for  years  to- gether.  The direct recruits appointed on the basis  of  the examination  held  under the amended Rules  cannot  encroach upon  their rights in the matter of determination  of  their seniority. [442E-H]     2.  This Court, in Baleshwar Dass & Ors. v. State of  U.

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P.  & Ors., [1981] 1 S.C.R. 449, while holding  that  Office Memorandum  dated December 7, 1961 was not arbitrary  in  so far as it fixed the proportion of permanent vacancies to  be filled  from various sources, observed that this  scheme  of 1961  could  not stand in isolation and had to  be  read  as subordinate  to the 1936 Rules. Hence, the aforesaid  Office Memorandum  does not affect the petitioners who have  become members  of the service and are entitled to have their  sen- iority reckoned from the date of their being members of  the service in accordance with r. 23 of the 1936 Rules. [440G-H; 441A-B]     3. The effect of the amendments made in rr. 3(b),  3(c), 5 and 6 is that Assistant Engineers who have become  members of  the Service being appointed substantively  in  temporary posts will no longer be members of the service and will have to  wait till they are selected and appointed  as  Assistant Engineers under r. 5(a)(ii) against quota fixed by r. 6  for this purpose. This creates serious prejudice to them and  it also  creates uncertainty as to when they will  be  selected and  appointed against the quota set up for  such  selection under r. 5(a)(ii). The amended r. 23 lays down that seniori- ty will be determined from the date of order of  appointment in  substantive  vacancy. These provisions  have  been  made retrospectively effective from March 1, 1962 to the existing officers  i.e.,  the  respondents  appointed   substantively against  temporary vacancies. Such retrospective  amendments cannot take away the vested rights. [444H; A-B] 430     T.R.  Kapur v. State of Haryana & Ors., JT  (1986)  S.C. 1092; E.P. Royappa v. State of Tamil Nadu, A.I.R. 1974  S.C. 555  and Maneka Gandhi v. Union of India, A.I.R.  1978  S.C. 597; relied on.     4.  The  Assistant  Engineers who  have  already  become members  of  the service on  being  appointed  substantively against temporary posts have already acquired the benefit of 1936 Rules for having their seniority computed from the date of  their  becoming members of the  service.  The  Amendment Rules, 1969 and 1971 take away this right of these temporary Assistant  Engineers by expressly providing that  those  As- sistant  Engineers who are selected and appointed in  perma- nent  vacancies against 50% quota provided by amended  r.  6 will  only be considered for the purpose of  computation  of seniority from the date of their appointment against  perma- nent vacancies. Therefore, the temporary Assistant Engineers are not only deprived of their seniority but they are driven to  a very peculiar position inasmuch as they have  to  wait until  they  are selected and  appointed  against  permanent vacancies in the quota set up for this purpose by the amend- ed  r. 6. There are about 200 Assistant Engineers  who  have been  appointed  substantively by the  Government  with  the approval  of  the Public Service Commission before  the  en- forcement  of 1969 Rules. The direct recruits  appointed  on the  basis  of the examination against  permanent  vacancies will  get precedence over Assistant Engineers  appointed  in the matter of determination of their seniority in the  cadre of  Assistant Engineers on the basis of changed Rules,  par- ticularly  amended  r.  23, which takes  into  account  only appointments  in  substantive vacancies. The 1969  and  1971 Amendments  in effect take away from the officers  appointed to the temporary posts after selection by the Public Service Commission, the substantive character of their  appointment. These amendments are not only disadvantageous to the  future recruits  against  temporary vacancies but  they  were  made applicable retrospectively from March 1, 1962 even to exist- ing  officers recruited against temporary vacancies  through

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Public Service Commission. The Government has power to  make retrospective  amendments  to  the Rules but  if  the  Rules purport to take away the vested rights and are arbitrary and not  reasonable then such retrospective amendments are  sub- ject to judicial scrutiny. [446B-H; 447A-C]     S.B. Patwardhan v. State of Maharashtra, [1977] 3 S.C.R. 775, referred to.     5.  The Office Memorandum dated December 7,  1961  which purports  to amend the U.P. Service of Engineers  (Buildings and  Roads  Branch) Class II Rules,  1936  cannot  override, amend or supersede                 431 statutory rules as it is nothing but an administrative order or  instruction. The temporary Assistant Engineers who  have become  members of the service after being selected  by  the Public  Service  Commission in accordance with  the  service rules  are  entitled  to have their  seniority  reckoned  in accordance with the provisions of r. 23 as it was then, from the date of their becoming members of the service, and  this cannot  be taken away by giving retrospective effect to  the Amendment  Rules of 1969 and 1971 as it is arbitrary,  irra- tional and not reasonable. [448B-D]     Sant  Ram Sharma v. State of Rajasthan & Anr., [1968]  1 S.C.R. 111, referred to.     6.  The Amendment Rules of 1969 read with the  Amendment Rules  of 1971 adversely affect the rights of the  Assistant Engineers appointed to substantive posts prior to the intro- duction  of these amended Rules and create fetters  for  the long years of service being ever considered for reckoning of seniority in the cadre of Assistant Engineers. For promotion from  Assistant Engineer to the post of  Executive  Engineer seniority-cum-merit  is the criterion. These  temporary  As- sistant Engineers, unless they are selected to the 50% quota in  permanent  vacancies  reserved for  promotion  from  the Assistant Engineers appointed to temporary posts, will never have  their service reckoned for determination of  seniority in the cadre. The respondents were appointed long before the appointment  of appellants as Assistant Engineers in  perma- nent vacancies. The appointment of respondents has been made in  consultation  with  the Public  Service  Commission  and according  to  the  decision in Baleshwar  Dass’s  case  the respondent  having  become members of the Service  they  are deemed  to  be appointed substantively in  temporary  posts. Therefore, the amended Rules, more particularly rr. 3(c),  5 and  6 of 1969 Rules as well as r. 23 of 1971 amended  Rules are wholly arbitrary and discriminatory and are violative of Arts. 14 and 16 of the Constitution. [448E; F; 449A-B]     Mohammad  Shujat  Ali & Ors. v. Union of India  &  Ors., [1975] 1 S.C.R. 449, referred to.     7. The argument that the Amendment Rules were framed  to attract  meritorious  and  talented engineers  in  the  U.P. Service  of Engineers (Buildings and Roads Branch) as  there were  very little prospects of promotion for such  Assistant Engineers  to be promoted to the higher posts owing  to  the large  number of Assistant Engineers appointed to  temporary posts cannot be sustained, firstly, because it 432 seriously  prejudices the rights of the Assistant  Engineers appointed  substantively to the temporary posts and  working as  Assistant Engineers for a number of years and  secondly, because this process of direct recruitment against permanent vacancies was discontinued after 1971 as it worked injustice and had led to patent discrimination. [449C-F]     8.  When recruitments to a particular service  are  made from more than one source, quota and rota may be  introduced

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consistent  with the equality clause envisaged in  Arts.  14 and  16  of the Constitution. In the instant  case  all  the Assistant Engineers whether appointed in a temporary post of the cadre or in the permanent post of the cadre are recruit- ed  directly from graduates in Civil Engineering.  The  only difference  is  that due to exigencies of  service  a  large number of Assistant Engineers were recruited against  tempo- rary vacancies. Under the 1936 Rules the Assistant Engineers appointed against temporary vacancies became members of  the Service under the then r. 3 and they were eligible for their seniority  being  reckoned from the date of  their  becoming members of the service. The impugned Rules of 1969 and  1971 purport to take away or to cruelly cut off the long years of valuable service rendered by these Assistant Engineers  only on the pretext of appointment against permanent posts. These temporary  Assistant  Engineers after  introduction  of  the amended Rules have been relegated to a very uncertain  posi- tion  as  to when they will be  selected  against  permanent vacancies by the Commission in the 50% quota provided  under r.  6 of the amended Rules to become members of service  and to have their seniority reckoned. The fate of those  Assist- ant  Engineers who are selected and appointed  in  temporary posts on the basis of the results of the examination is also very  uncertain  inasmuch  as they will  be  considered  for selection by the Commission against the quota for  temporary Assistant Engineers after the Assistant Engineers  appointed before  them  are all considered for selection in  the  said quota set up for the temporary Assistant Engineers in perma- nent vacancies even though they have been appointed  through the  same  process  of examination.  Considering  all  these circumstances  we are constrained to hold that the  impugned rr.  3(c), 5 and 6 of the 1969 Rules and r. 23 of  the  1971 Rules are arbitrary, irrational and unreasonable  infringing Arts. 14 and 16 of the Constitution. [451G-H; 452A-F]     Narender  Chadha  v.  Union of India &  Ors.,  [1986]  1 S.C.J. 307, referred to.     State of Jammu & Kashmir v. Triloki Nath Khosa, [1974] 1 S.C.R. 771, distinguished.  433     9. Purely ad hoc employees or employees on purely  offi- ciating basis or employees purely for a temporary period  in the  cadre of Assistant Engineer, being not members  of  the service in accordance with the service rules, are not  enti- tled to have the benefit of their such adventitious,  purely ad  hoc and temporary service being reckoned for  determina- tion  of seniority unless and until they become  members  of the  service  in accordance with the provisions  of  service rules. Only those ad hoc appointees whose services have been regularised by the regularisation rules framed under proviso to Art. 309 of the Constitution after being duly selected by the Selection Committee and becoming members of the Service, will be entitled to seniority only from the date of order of appointment after selection in accordance with those regula- tions as provided in r. 7 of the Regulations. [453H, 454A-C]     Ashok  Gulati and Ors. v. D.S. Jain & Ors., A.I.R.  1987 S.C.  424  and  State  of Gujarat  v.C.G.  Desai,  [1974]  2 S .C .R. 255, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos.  622625 of 1982.     From the Judgment and Order dated 14.1.82 of the Allaha- bad  High  Court  in W.P. Nos. 3387/79,  3327,  2829/80  and

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747/81.     Shobha  Dixit,  S. Markandeya, M.N. Shroff,  Anil  Kumar Gupta.  A.K. Sanghi, V.J. Francis, P.D. Sharma, A.K.  Panda, Sunil  Kumar Jain and R.B. Mehrotra for the  appearing  par- ties. The Judgment of the Court was delivered by     B.C. RAY, J. These appeals by special leave are  against the  common judgment and order dated 14.1.1982 quashing  the seniority  list in the cadre of Assistant Engineers  in  the United  Provinces (Buildings & Roads Branch) Class  II  pre- pared on 29.7.1980 and 18.12.1980 with 19.12.1980. A writ of mandamus was also issued to the State Government for  prepa- ration  of  fresh  seniority list in  respect  of  Assistant Engineers  in the Civil Engineering Wing and Electrical  and Mechanical  Wing respectively in accordance with the  guide- lines mentioned in the said judgment. The facts giving  rise to these writ petitions are in brief as follows:-     Previously  Public  Health  Department as  well  as  the Irrigation  Department  of the Government of  Uttar  Pradesh were integrated into Public Works Department comprising both these two branches. In 434 1922 Irrigation branch was separated into a different  inde- pendent department. Similarly, in 1927 Public Health Depart- ment was separated. In 1936 U.P. Service of Engineers  Class II  Rules (Buildings and Roads Branch) pertaining to  P.W.D. were  framed in exercise of powers conferred under the  Gov- ernment  of  India Act. Identical rules  also  governed  the Irrigation Department. Before entering into the  controversy that has been raised in the instant appeal it is appropriate to refer to the relevant provisions of the said rules.  Rule 3(b) defines ’Member of the Service’ as a Government servant appointed  in substantive capacity, under the provisions  of these  rules or of rules in force previous to the  introduc- tion  in  the  cadres of the  service.  Clause  (c)  defines ’Direct recruitment’ or ’Direct appointment’ as  recruitment or  appointment in the manner prescribed in rule 5(i),  (ii) and  (iii) of these rules. In Rule 4 which is  captioned  as ‘Strength  of Cadre’ it is mentioned in clause (ii)  of  the said  rule  that the Government may increase  the  cadre  by creating  permanent or temporary posts from time to time  as may  be  found necessary. Rule 5 lays down five  sources  of recruitment:               (i)   by  direct  appointment   from   amongst               engineer  students  who  have  passed  out  of               Thomson  Civil Engineering  College,  Roorkee,               and who have completed a course of training in               the  Buildings  and Roads Branch  as  engineer               students  after consulting the Public  Service               Commission;                  (ii)   by  the  appointment   after   (sic)               advertisement and after consulting the  Public               Service Commission;                  (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;  provided  that  it  will  not  be               necessary  to  consult the Commission  in  the               case of appointment of a temporary officer  to               a  permanent  vacancy if he has  already  been               appointed to a temporary post in the cadre  of               service    after   consultation    with    the               Commission.                  (iv) by promotion of members of the  United

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             Provinces  Subordinate Engineering Service  in               the  Public  Works Department,  Buildings  and               Roads  Branch,  who  have  shown   exceptional               merits;               (v)  by promotion of computers in  the  Public               Works Depart-                435               ment,  Buildings  and Roads Branch,  who  have               shown   exceptional   merit   and   who    are               technically qualified.     It  has  been specifically provided in Rule 6  that  the Government will decide in each ’case the source from which a vacancy  shall be filled up provided that 25% of the  vacan- cies shall be reserved for selected qualified members of the Subordinate  Engineering  Service  and  Computers.  It  thus provides  that barring 25% of the vacancies to be filled  by promotion from Engineering Subordinate Services and  Comput- ers, the remaining 75% of the vacancies are to be filled  up by  direct  recruitment as provided in sub-clause  (ii)  and (iii) of Rule 5.     Rule  17  which is termed  as  ’Probation’  specifically provides that 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.     Rule  19  deals with confirmation  of  probationers.  It mentions  that a probationer shall be confirmed in  his  ap- pointment  after he has completed the prescribed  period  of probation, has passed all the tests prescribed in the  rules and the Government is satisfied that he is fit for confirma- tion. It also provides therein that all confirmations  under this rule shall be notified in the United Provinces Gazette.     Rule  23 states that seniority in the 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.     On  December 7, 1961 an office memorandum No.  4162  EBR XXIII-PWD-90  EBR 1954 was issued by the  Government  laying down  the  principles for recruitment to the  permanent  and temporary posts. It is stated therein that in future  direct recruitment  to  both permanent and temporary  vacancies  of Assistant  Engineers (Civil, Electrical 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  Serv- ice Commis- 436 sion.  Candidates possessing technical and other  qualifica- tions prescribed in the rules for the Uttar Pradesh  Service of  Engineers in the Departments concerned will be  eligible to appear at the examination for that particular service. It has been further provided therein that successful candidates in  order  of merit will be appointed on  probation  against vacant permanent posts and those following will be appointed against  temporary  posts. It also lays down the  manner  of filling  up  the  vacancies in the permanent  cadre  of  the service of Assistant Engineers in the Irrigation  Department as  well as in the PWD Department. In PWD Department 50%  of

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the  vacancies  in  the permanent cadre will  be  filled  up through  competitive  examination,  25%  by  promotion  from amongst  overseers and computers and 25% by  selection  from amongst temporary Assistant Engineers recruited through  the Commission.  It has been further provided that as a  measure of concession to the existing temporary Assistant  Engineers who  were recruited as temporary Assistant Engineers on  the advice of the Public Service Commission prior to the  intro- duction of this scheme, the distribution of vacancies in the permanent cadre of Assistant Engineers will be 25% by direct recruitment  through competitive examination; 25% by  promo- tion  from  subordinate service and 50%  by  selection  from amongst existing temporary Assistant Engineers. It has  also been  provided that the Government may in consultation  with the  Public  Service  Commission increase  or  decrease  the percentage  fixed for recruitment by selection and  competi- tive  examination in any particular year. In para 7  of  the said  memorandum  it has been provided  that  temporary  and officiating  Assistant  Engineers possessing  the  requisite technical  qualifications will be eligible to appear in  the competitive  examinations and the maximum age limit  in  the case of those working in the department with the approval of the  Commission, or after having been recruited by the  Com- mission will be 40 years.     Thereafter  on  28.7.1969 an amendment to the  Rule  was made by the Government in exercise of power under proviso to Article 309 of the Constitution. This is known as the United Provinces Service of Engineers (Buildings and Roads Branch), Class  II  (Amendment)  Rules, 1969. These  rules  shall  be deemed to have been in force since March, 1962. The relevant provisions of these Rules are quoted hereinbelow:- Rule 3: In these rules unless there is anything repugnant in the subject or context:-               (a)  The ’Service’ means the U.P.  Service  of               Engineers (Build-   437                    ings and Roads Branch), Class II,                  (b)   ’Member  of  the  Service’  means   a               government servant appointed in a  substantive               capacity, under the provisions of these  rules               or of rules in force previous to the introduc-               tion of these rules to a post in the cadre  of               the service.                  (c)   ’Direct   recruitment’   or   ’Direct               appointment’ means recruitment or  appointment               in  the manner prescribed in rule  (5)(a)  (i)               and 5(b)(1);                  (d)  ’Commission’ means the  Uttar  Pradesh               Public Service Commission;                  (e)  ’Department’  means the  Public  Works               Department, Uttar Pradesh;               (f)  ’Governor’  means the Governor  of  Uttar               Pradesh.                  (g)  ’Secretary’  means  the  Secretary  to               Government  Public  Works  Department,   Uttar               Pradesh;                  (h)   ’Chief  Engineer’  means  the   Chief               Engineer,   Public  Works  Department,   Uttar               Pradesh.                  (i)  ’Period  of  recruitment’  means   the               period  upto  the  end  of  December  in   the               calendar  year  succeeding year in  which  the               recruitment or selection is made;                  (j)  ’Citizen of India’ means a person  who               is  or is seemed to be citizen of India  under

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             Part II of the Constitution of India;               (k) ’Government means the Government of  Uttar               Pradesh.               Rule 5: Source of recruitment:-               Recruitment to the post of Assistant  Engineer               shall be made from the following sources-               (a) in permanent vacancies-                  (i) by direct recruitment on the result  of               a  competitive  examination conducted  by  the               Commission;                438                  (ii) by selection from amongst the Officers               appointed  as  Assistant  Engineer  by  direct               recruitment through the Commission and working               in  temporary or officiating vacancies in  the               department;                  (iii) by promotion of members of the Public               Works   Department,  Subordinate   Engineering               Service   and  the  Public  Works   Department               ’Computers’ Service.               (b) in officiating or temporary vacancies--                  (i) by direct recruitment on the result  of               a  competitive  examination conducted  by  the               Commission;                  (ii) by promotion of members of the  Public               Works   Department,  Subordinate   Engineering               Service, and Public Works Department Computers               Service.               Rule  6:  Number  to be  recruited  from  each               source--The  Governor shall decide the  number               of  appointments to be made at each  selection               in  each kind of post from the sources  speci-               fied in rule 5:               Provided   that  recruitment  in   substantive               vacancies   occurring  during  a   period   of               recruitment in the post of Assistant Engineer,               shall, so far as may be possible, be made from               the  source  mentioned  in rule  5(a)  in  the               following proportion:-                  (a)  Fifty per cent of the vacancies  shall               be filled by direct recruitment on the results               for  a  competitive  examination  under   rule               5(a)(i);                  (b)  Twenty five per cent of the  vacancies               shall  be filled from the source specified  in               rule 5(a)(ii).                  (c)  Twenty-five per cent of the  vacancies               shall  be filled from the source specified  in               rule  5(a)(iii)  which  shall  be  shared   by               members   of  the  Public   Works   Department               Subordinate Engineering Service and the Public               Works   Department   Computers’   Service   in               approximate  proportion of permanent  strength               of  their  respective cadres at  the  time  of               selection:               Provided  further that with a view  to  giving               facility to tempor-                439               ary  Assistant  Engineers  recruited  in   the               Department in consultation with the Commission               up  to  the  date Commencement  of  the  first               competitive  examination  in  accordance  with               these rules, the proportion of vacancies to be               filled from the three sources mentioned in the               first  proviso  shall be 25 per cent,  50  per

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             cent  and 25 per cent respectively subject  to               review at the discretion of the Government  in               consultation with the Commission.               Explanation--The  vacancies  from  the  source               mentioned in rule 5(a)(ii) will, until further               orders, be filled from amongst those temporary               Assistant Engineers only who were recruited in               the   Department  in  consultation  with   the               Commission  and were working in this  capacity               on   the   date  of  commencement   of   first               competitive examination:               Provided also that recruitment to temporary or               officiating   vacancies   in  the   posts   of               Assistant  Engineers  by  promotion  from  the               source  mentioned  in rule 5(b)(ii)  shall  be               made  up  to  25 per cent  of  the  vacancies,               occurring during any one period of recruitment               in the same proportion as in clause (c) of the               first  proviso  and  the  remaining  vacancies               shall  be filled by direct  recruitment  under               rule 5(b)(i).               NOTE--The  distribution  of vacancies  in  the               permanent  cadre in the above manner  will  be               subject to the condition that the Governor, in               consultation  with  the  Commission  may,  for               special  reasons,  increase  or  decrease  the               percentage fixed for recruitment by  selection               and competitive examination in any  particular               period of recruitment.     On  November  26, 1971 a further amendment to  the  U.P. Service of Engineers (Buildings and Roads Branch), Class  II Rules  has been brought in and these rules are  called  U.P. Service  of Engineers (Buildings and Roads Branch) Class  II (Amendment) Rules, 1971. Rule 23 which deals with  seniority has  been  substituted. The relevant portion of Rule  23  is quoted hereunder:-               "Except as provided for hereunder seniority in               the service will be determined by the date  of               order   of   appointment  in   a   substantive               vacancy  ................................. On the basis of these amended rules of 1969 and 1971  exami- na- 440 tions  were held and the successful candidates in  the  said examinations were appointed to the permanent posts and  they were  placed  on  probation. These  appointees  were  called direct  recruits in short ’D’ category. The petitioner  Nos. 1,  2  and 4 who are appellants here in  these  appeals  are those  direct recruits. The appellant Nos. 1 and 2 who  were working  in the PWD as temporary Assistant  Engineers  after selection by the Commission were successful in 1962 competi- tion for appointment against permanent posts. The  Appellant No.  3 who was also working as temporary Assistant  Engineer in the PWD after selection by the Public Service  Commission in  1962 also competed in the examination held in  1964  for appointment  against a permanent post. The appellant  No.  4 who was working in the Irrigation Department after selection by  the  Commission in 1962 was successful  for  appointment against  one  of  the permanent posts in  PWD  through  1964 competitive examination. It may be mentioned in this connec- tion that the first competitive examination was held in 1962 on  the basis of the memorandum dated December 7, 1961.  The next examination was held in 1964. Similar examinations were held  thereafter  till 1971 in accordance with  the  amended Rules.  The  Shukla Committee in para 36 of its  report  ob-

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served that "the System had done more harm than good to  the Service"  and  ultimately recommended that  in  future  such direct recruitment for permanent posts should be  discontin- ued.  No  examinations  were held in 1963.  After  1971  the recruitment  by  this method was discontinued  by  executive instructions  issued  in 1972 vide Office  Memorandum  dated 23.6.1972  (Annexure  C2 to the counter  affidavit  of  S.C. Gupta  dated 23.1.81 in Writ Petition No. 3327 of 1980  Syed Masood  Tagi Zaidi v. State of U.P. ) This was  followed  by another  order dated 8.6. 1973 (Annexure C-3 ibid)  stopping direct  promotion against permanent vacancies.  These  deci- sions  were  taken on the basis of  the  recommendations  of Shukla Committee’s Report.     The  respondents  are the directly  recruited  Assistant Civil  Engineers in the Buildings and Roads Branch  pursuant to the provisions of Rule 5(a)(ii) in the temporary posts of the  cadre  upto  1961 after consultation  with  the  Public Service Commission. These temporary Assistant Engineers  who are working continuously since the date of their appointment in  the  cadre of Assistant Engineers  have  questioned  the seniority list of Assistant Engineers made by the Government in 1980 pursuant to the Office Memorandum dated December  7, 1961 and U.P. Engineering Service (Amendment) Rules of  1969 and 1971 on the grounds that they are arbitrary and discrim- inatory being violative of Articles 14 and 16 of the Consti- tution. These amended rules have been challenged further  on the ground that these  441 rules adversely affect their service conditions and as  such prayed for quashing of the seniority list and for determina- tion  of their seniority on the basis of the  decision  ren- dered by this Court in Baleshwar Dass & Ors. v. State of  U. P.  & Ors., [1981] 1 SCR 449 on the basis of the  length  of their  continuous service since the date of  their  becoming member  of the service in accordance with the provisions  of the  1936 rules. The High Court of Allahabad  allowed  these Writ Petitions and quashed the 1980 seniority list directing to prepare a seniority list after taking the appointments of officers  to the service after selection by  Public  Service Commission to be substantive appointments to the cadre.     Against  this  judgment and order the above  appeals  on special  leave have been preferred to this Court.  The  only question  that falls for consideration is the  determination of  seniority  of Assistant Engineers in the  cadre  of  the service  within the meaning of Rule 3(b) of U.P. Service  of Engineers (Buildings and Roads Branch) Class II  (Amendment) Rules.  It appears that a similar question about  the  yard- stick  for determination of seniority between the  Assistant Engineers appointed substantively to temporary posts of  the cadre  and those Assistant Engineers appointed  against  the permanent posts on probation and confirmed in the said post, came up for consideration before this Court in Civil  Appeal No. 1717 of 1981. In that appeal we have already  considered this  aspect  of  the case and relying on  the  decision  in Baleshwar Dass & Ors. v. State of U.P & Ors. and N.K.  Chau- han  &  Ors. v. State of Gujarat & Ors. etc., [1977]  1  SCR 1037  we  have held that since the cadre of the  service  of engineers consists of both temporary and permanent posts and as such there can be substantive appointments against tempo- rary posts of the cadre in accordance with the provisions of the  Service Rules. When a temporary Assistant  Engineer  is selected  and appointed by the Government with the  approval of the Public Service Commission after fulfilment of all the tests presented in the said rules, he shall be deemed to  be member  of  the  service and as such the  entire  length  of

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service from the date of his becoming member of the  service has to be reckoned in computing the seniority of the Assist- ant Engineers appointed substantively to temporary posts  in the service in accordance with the provisions of Rule 23  as it  was prior to its amendment by 1971 Rules. We  have  also held that on the plea of not being confirmed, the long years of service rendered by an Assistant Engineer though appoint- ed  to a temporary post substantively cannot be  arbitrarily cut off and excluded in determining seniority. 442     Before proceeding to consider the merits of the  contro- versy raised in this appeal it is pertinent to deal with the preliminary  objections raised on behalf of  the  appellants that  the validity of rules of 1969 and 197 1 was not  chal- lenged  by T category officers or by the ad hoc officers  at any   time  prior  to  the  filing  of  the   present   writ petitions .out of which the instant appeals on special leave have  arisen and as such the writ petitions should  be  dis- missed on the ground of undue delay and laches. This  objec- tion  was  elaborately dealt with by the High Court  in  its judgment’ and it was held that there was no such undue delay and laches which can be considered to be a bar for consider- ing  the writ petitions. It appears that the seniority  list of 1971 that was prepared following 1969 and 1971 rules  was challenged  by  some  ’D’ category officers  in  Civil  Writ Petition No. 3734 of 1969 (V. C. Aggarwal v. State of U.P. & Ors.).  That petition was allowed and the seniority list  of 1971  was quashed. The Government was directed to prepare  a fresh seniority list in accordance with law after  adjusting the  recruitment for the period 1962 to 1966  in  accordance with  the  quota  rule. Against that  judgment  two  special appeals  were  filed being Nos. 634 and 629 of  1972.  These appeals  were  allowed in part. Against  that  judgment  the Government  alone  came to this Court in SLP(C) No.  951  of 1975.  This  special leave petition was  dismissed  on  8.9. 1975. Thereafter the impugned list was published in 1980 and it was supplemented on the 18th and 19th December, 1980.  In these  circumstances  we are unable to hold that  there  has been undue delay and laches on the part of temporary Assist- ant  Engineers to challenge the aforesaid amended rules  and as such there is no merit in this contention.     In  the instant appeal there is no controversy that  all the  temporary  Assistant Engineers who  were  appointed  in consultation  with  the  Public Service  Commission  by  the Government  and bad been rendering their services  for  long years  since 1956 till 1961 when the said  notification  has been  made  by  the Government have become  members  of  the service  in  accordance with the provisions  of  the  rules. Therefore  on the basis of the provisions of rule 23  as  it was  before  the  amendment made in 197  1  these  temporary Assistant  Engineers  are  legally entitled  to  have  their seniority  reckoned from the date of their being  member  of the  service no matter whether they are holding posts  which remain  as temporary for years together. It is  quite  clear that  there are about 200 Assistant Engineers who have  been appointed substantively by the Government with the  approval of  the  Public Service Commission and as  such  the  direct recruits  appointed  on the basis of  the  examination  held under  the  1969 rules cannot in any manner  whatsoever  en- croach  upon  the rights of  these  substantively  appointed Assistant Engineers    443 to  temporary posts in the matter of determination of  their seniority in the said cadre of Assistant Engineers.     The Office Memorandum dated December 7, 1961  introduces

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quotas  for filling up vacancies in the cadre  of  Assistant Engineers in the Public Works Department as well as  Irriga- tion  and Local Self Government Engineering  Departments  by providing direct recruitment through competitive examination to  both  permanent  and temporary  vacancies  of  Assistant Engineers  (Civil, Electrical and Mechanical). It  has  been provided  therein that the quota of 50% of the vacancies  in the cadre of Assistant Engineers in a year will be filled by direct  recruits through competitive examination as well  as it  provides 25% of the permanent posts to be filled  up  by selection  from  amongst temporary Assistant  Engineers  re- cruited through the Commission. As a concession however,  it has  provided  that  the quota of  direct  recruits  through competitive examination will be 25% instead of 50% as  there are large number of temporary Assistant Engineers from  whom the selection can be made to the vacancies in the  permanent posts  of Assistant Engineers by selection. This  memorandum has  subsequently been incorporated in the amended rules  of U.P. Service of Engineers 1969. In Rule 5 of the said  Rules provision  has  been  made for direct  recruitment  both  in permanent  vacancies as well as in officiating or  temporary vacancies on the basis of competitive examination  conducted by the Public Service Commission and the criteria laid  down is that those who are more meritorious judged by the  result of the examination and occupy higher place will be recruited to  the permanent vacancies whereas others less  meritorious judged  by their performance in the competitive  examination will  be recruited to the post of officiating  or  temporary vacancies of Assistant Engineers. It has also been  provided therein  that  the  temporary  Assistant  Engineers  already recruited in the department in consultation with the Commis- sion will. be permitted to compete in the examination and if they  can do well in the competitive examination  then  they may  be appointed in the permanent posts of Assistant  Engi- neers.  This rule if considered properly will  clearly  show that  direct  recruits against permanent  vacancies  on  the basis of the competitive examination will score a march over the Assistant Engineers who have been appointed substantive- ly  in temporary posts of the cadre and have become  members of the service. They will be deprived of having their  serv- ices reckoned from the date of their substantive appointment to  temporary  posts  for the purpose  of  determination  of seniority.  In accordance with the provisions of Rule 23  of the amended rules of 1971 which has been substituted for the old rules of 1936 seniority in the service has to be  deter- mined by the date 444 of  order  of  appointment in a substantive  vacancy.  As  a result  this rule expressly debars Assistant  Engineers  who have  been  appointed  long before the  appointment  of  the direct  recruits  under the amended rules of  1969  to  have their  long  years of service as Assistant  Engineers  after being appointed substantively and after being members of the service  fulfilling  all  the tests  prescribed  within  the meaning  of rule 3 of the rules of 1936 and also under  rule 3(b)  as  amended by the 1969 amendment to be  left  out  in fixation  of seniority. In other words these  temporary  As- sistant  Engineers  will ever remain temporary  though  they have  been  rendering identical service for long  years  and having same educational qualification and long experience in the service.     This  memorandum dated 7.12.1961 was considered  in  Ba- leshwar Dass’s case by this Court and it was held that  this G.O. was not arbitrary insofar as it fixes the proportion of permanent  vacancies to be filled from various sources,  and

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it has statutory force being under Rule 6. It has also  been observed that:               "The  office  memorandum makes it  clear  that               direct  recruitments  will  be  made  to  both               permanent and temporary vacancies of Assistant               Engineers.  But  this scheme  of  1961  cannot               stand  in  isolation  and has to  be  read  as               subordinate to the 1936 Rules. After all,  the               196  1  Memorandum cannot override  the  Rules               which  are  valid under Article 3 13,  and  so               must  be  treated  as filling  the  gaps,  not               flouting the provisions." Hence the said O.M. does not affect the petitioners who have become members of the Service and are entitled to have their seniority  reckoned from the date of their being members  of the Service according to Rule 23 of the 1936 Rules. The 1969 Rules  and 197 1 Rules have however, affected the rights  of the respondents who have become members of the Service being substantively  appointed  in temporary  posts  as  Assistant Engineers  inasmuch as there has been an amendment  effected in Rule 3(b) by providing that a member of the Service meant a Government servant appointed in a substantive capacity  to a  post in the cadre of the Service. Rule 3(c)  also  amends the  earlier provisions by meaning direct recruitment as  in the  manner prescribed in Rule 5(a)(i) and 5(b)(i).  Similar amendments  have  been made in Rule 5 and 6. The  effect  of these amendments is that Assistant Engineers who have become members  of  the Service being  appointed  substantively  in temporary posts will no longer be members of the service and will  have to wait till they are selected and  appointed  as Assistant  445 Engineers under Rule 5(a)(ii) against quota fixed by Rule  6 for this purpose. This creates serious prejudice to them and it also creates uncertainty as to when they will be selected and  appointed against the quota set up for  such  selection under  Rule  5(a)(ii). The amended Rule 23  lays  down  that seniority  will  be  determined from the date  of  order  of appointment in substantive vacancy. These amended provisions have been made retrospectively effective from March 1,  1962 to  the  existing officers i.e.  the  respondents  appointed substantively against temporary vacancies. It has been urged that Government has the power to amend rules retrospectively and such rules are quite valid. Several decisions have  been cited  of this Court at the Bar. Undoubtedly the  Government has got the power under proviso to Article 309 of  Constitu- tion to make rules and amend the rules giving  retrospective effect.  Nevertheless, such retrospective amendments  cannot take  away  the  vested rights and the  amendments  must  be reasonable, not arbitrary or discriminatory violating  Arti- cles 14 and 16 of the Constitution.     "It  is  well-settled that the power to frame  rules  to regulate the conditions of service under the proviso to Art. 309  of the Constitution carries with it the power to  amend or alter the rules with a retrospective effect: B.S. Vadhera v.  Union of India, [1968] 3 SCR 575; Raj Kumar v. Union  of India, [1975] 3 SCR 963; K. Nagraj & Ors. v. State of A.P. & Anr.,  [1985] 1 SCC 523 and State of J & K v.  Triloki  Nath Khosla & Ors., [1974] 1 SCR 77 1. It is equally well-settled that  any  rule which affects the right of a  person  to  be considered for promotion is a condition of service  although mere  chances  of promotion may not be. It  may  further  be stated  that an authority competent to lay  down  qualifica- tions for promotion, is also competent to change the  quali- fications. The rules defining qualifications and suitability

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for  promotion  are conditions of service and  they  can  be changed  retrospectively. This rule is however subject to  a well-recognised  principle that the benefits required  under the existing rules cannot be taken away by an amendment with retrospective  effect, that is to say, there is no power  to make such a rule under the proviso to Art. 309 which affects or  impairs vested rights. Therefore, unless it is  specifi- cally  provided in the rules, the employees who are  already promoted  before the amendment of the rules, cannot  be  re- verted  and  their promotions cannot be recalled.  In  other words,  such rules laying down qualifications for  promotion made with retrospective effect must necessarily satisfy  the tests of Arts. 14 and 16(1) of the Constitution."     The  above observations have been made by this Court  in the  case of T.R. Kapur v. State of Haryana & Ors., JT  1986 (SC) 1092 at 1101 446 (in  which one of us was a party). It has been held by  this Court in E.P. Ravappa v. State of Tamil Nadu, AIR 1974  (SC) 555  at  583 and Maneka Gandhi v. Union of India,  AIR  1978 (SC)  597 at 624 that there should not be  arbitrariness  in State  action and the State action must ensure fairness  and equality of treatment. It is open to judicial review whether any rule or provision of any Act has violated the principles of  equality and non-arbitrariness and thereby  invaded  the rights  of citizens guaranteed under Arts. 14 and 16 of  the Constitution. As has been stated hereinbefore the  Assistant Engineers who have already become members of the Service  on being  appointed substantively against temporary posts  have already acquired the benefit of 1936 rules for having  their seniority  computed from the date of their becoming  members of the Service. 1969 and 197 1 Amended Rules take away  this right  of these temporary Assistant Engineers  by  expressly providing  that those Assistant Engineers who  are  selected and  appointed  in  permanent vacancies  against  50%  quota provided  by Rule 6 of the amended 1969 Rules will  only  be considered for the purpose of computation of seniority  from the  date of their appointment against permanent  vacancies. Therefore  the  temporary Assistant Engineers are  not  only deprived of the right that accrued to them in the matter  of determination  of their seniority but they are driven  to  a very  peculiar position inasmuch as they are to  wait  until they are selected and appointed against permanent  vacancies in the quota set up for this purpose by the amended Rule  6. The direct recruits on the basis of the competitive examina- tion  conducted  by  the Commission  and  appointed  against permanent  vacancies on probation will supersede the  rights that  accrued  under the unamended rules  to  the  temporary Assistant  Engineers  having precedences in  the  matter  of determination  of  their seniority from the  date  of  their appointment against permanent vacancies. In other words, the Assistant  Engineers appointed substantively against  tempo- rary  posts  several years before the  direct  recruits  and working  in the posts of Assistant Engineers will be  pushed down to the direct recruits against permanent vacancies.  It is also evident that there are about 200 Assistant Engineers who have been appointed substantively by the Government with the  approval  of the Public Service Commission  before  the enforcement of 1969 rules. The direct recruits appointed  on the  basis  of the examination against  permanent  vacancies will  get precedence over Assistant Engineers  appointed  in the matter of determination of their seniority in the  cadre of  Assistant Engineers on the basis of changed rules,  par- ticularly new Rule 23 which takes into account only appoint- ments in substantive vacancies. Thus appointments made under

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Rule 5(b)(i) are to be treated as temporary i.e. ’T’ catego- ry officers and their such services will not be 447 taken into consideration in determining seniority until they are  selected  and appointed to permanent posts  under  Rule 5(a)(ii).  Note I to Rule 23 made it clear that an  appoint- ment made substantively on probation against a clear vacancy in a permanent post will be treated as substantive  appoint- ment. Thus the 1969 and 1971 amendments in effect take  away from  the officers appointed to the temporary posts  in  the cadre  through Public Service Commission, i.e. after  selec- tion by Public Service Commission, the substantive character of  their appointment. These amendments are not only  disad- vantageous  to the future recruits against temporary  vacan- cies  but  they were made  applicable  retrospectively  from 1.3.1962 even to existing officers recruited against  tempo- rary  vacancies  through Public Service Commission.  As  has been  stated hereinbefore that the Government has  power  to make retrospective amendments to the Rules but if the  Rules purport to take away the vested rights and are arbitrary and not  reasonable then such retrospective amendments are  sub- ject  to judicial scrutiny if they have infringed  Arts.  14 and 16 of the Constitution.     In the case of S.B. Patwardhan v. State of  Maharashtra. [1977] 3 SCR 775 at 778 Rule 8(iii) of 1960 Rules of  Bombay Service  of  Engineers Grade II which provided  that  direct recruits on probation in any year will be in a bunch  senior to promotees confirmed in that year was declared ultra vires of Art. 14 of the Constitution as it purported to take  away from the promotees their right of seniority being determined from date of their promotion from subordinate service to the posts  of Deputy Engineers before confirmation. It was  held that:               "Though drawn from two different sources˜  the               direct  recruits and promotees  constitute  in               the  instant case a single  integrated  cadre.               They   discharge  identical  functions,   bear               similar responsibilities and acquire an  equal               amount  of  experience  in  their   respective               assignments. Yet clause (iii) of r. 8 provides               that  probationers recruited during  any  year               shall  in  a  bunch be treated  as  senior  to               promotees confirmed in that year. This formula               gives  to the direct recruit even the  benefit               of his one year period of training and another               year’s period of probation for the purposes of               seniority and denies to promotees the  benefit               of  their  long and  valuable  experience.  If               there  was some intelligible, ground for  this               differentiation bearing nexus with  efficiency               in public services, it might perhaps have been               possible  to  sustain such  a  classification.               Instead    of   adopting    an    intelligible               differentia, r. 8(iii) leaves seniority to  be               determined               448               on   the  sole  touchstone  of   confirmation.               Confirmation   is   one  of   the   inglorious               uncertainties of government service  depending               neither on efficiency of the incumbent nor  on               the availability of substantive vacancies."     The  Office  memorandum dated December 7,  196  1  which purports to amend the United Provinces Service of  Engineers (Buildings  &  Roads  Branch) Class II Rules,  1936  in  our opinion cannot override, amend or supersede statutory rules.

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This  memorandum is nothing but an administrative  order  or instruction  and  as such it cannot amend or  supersede  the statutory  rules  by adding something therein  as  has  been observed by this Court in Sant Ram Sharma v. State of Rajas- than  & Anr., [1968] 1 SCR 111. Moreover the  benefits  that have been conferred on the temporary Assistant Engineers who have  become members of the service after being selected  by the Public Service Commission in accordance with the service rules  are  entitled  to have their  seniority  reckoned  in accordance  with the provisions of rule 23 as it  was  then, from the date of their becoming members of the service,  and this cannot be taken away by giving retrospective effect  to the  rules of 1969 and 1971 as it is  arbitrary,  irrational and not reasonable.     We have already mentioned hereinbefore that the  amended rules of 1969 read with the amended rules of 197 1 adversely affect  the rights of the Assistant Engineers  appointed  to substantive posts prior to the introduction of these amended rules and create fetters for the long years of service being ever  considered for reckoning of seniority in the cadre  of Assistant Engineer. It is pertinent to refer in this connec- tion  the  decision of this Court in the  case  of  Mohammad Shujat  Ali  &  Ors. etc. v. Union of  India  &  Ors.  etc., [1975]  1 SCR 449 wherein it has been observed that  "it  is true  that a rule which confers a right of promotion or  the right  to be considered for promotion is a rule  prescribing condition of service." For promotion from Assistant Engineer to the post of Executive Engineer seniority-cum-merit is the criterion in accordance with the service rules in  question. These temporary Assistant Engineers unless they are selected to the 50% quota in permanent vacancies reserved for  promo- tion  from  the Assistant Engineers appointed  to  temporary posts, will never have their service reckoned for determina- tion  of seniority in the cadre. It is pertinent to  mention in this connection that ’T’ category and ’D’ category  engi- neers  have got some technical qualification i.e.  both  are graduates in Civil Engineering and both worked as  Assistant Engineers  in  temporary  vacancies.  the  respondents  were appointed  long  before  the appointment  of  appellants  as Assistant Engineers in permanent vacancies. The appoint-  449 ment  of respondents has been made in consultation with  the Public  Service Commission and according to the decision  in Baleshwar Dass’s case the respondents having become  members of the Service they are deemed to be appointed substantively in temporary posts. Therefore the amended rules more partic- ularly rules 3(c), 5 and 6 of 1960 rules as well as rule  23 of 197 1 amended rules are wholly arbitrary and  discrimina- tory and so they are violative of Articles 14 and 16 of  the Constitution. It has been tried to be urged in this  connec- tion  on  behalf of the direct recruits that the  method  of selection  to the cadre of Assistant Engineers by  providing quota for direct recruits in permanent vacancies was  intro- duced  by  the  authorities concerned in  order  to  attract meritorious  and talented engineers in the U.P.  Service  of Engineers  (Buildings  & Roads Branch) as  there  were  very little  prospects of promotion for such Assistant  Engineers to be promoted to the higher posts owing to the large number of Assistant Engineers appointed to temporary posts. It  has thus been urged that these new rules have been introduced in order  to  give  an incentive to  meritorious  and  talented engineers to get themselves recruited directly to  permanent posts in the cadre on the basis of the competitive  examina- tion  in  order to have a fair promotional prospect  in  the service. This submission cannot be sustained in view of  the

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fact that firstly it seriously prejudices the rights of  the Assistant Engineers appointed substantively to the temporary posts  and  working as Assistant Engineers for a  number  of years and discriminates them from having their long years of service  after  being appointed substantively  in  temporary posts and being members of the service though the ’D’  cate- gory engineers appointed much later in permanent posts  will steal  a march over them by having their seniority  reckoned from  the date of their appointment on probation.  Secondly, this process of direct recruitment against permanent  vacan- cies  was  discontinued after 1971 and these  amended  rules were  not  thereafter taken recourse to in  filling  up  the vacancies  in the cadre of Assistant Civil Engineers  as  it worked  injustice and had led to patent discrimination  vio- lating  Articles  14  and 16 of the  Constitution.  This  is perhaps  the reason and rationale which impelled the  Shukla Committee  to recommend the discontinuance of this  practice of  giving promotion to direct recruits. Quota and rota  are introduced where recruitments to a cadre of Service are made from two or more sources. But in the instant case the  quota has been introduced for the first time after their  recruit- ment  for  determining  seniority in  service  ’T’  category having become members of the Service already and also  there are no different sources of recruitment as both ’D’ and  ’T’ category employees are recruited by examination conducted by Commission.  Moreover  no  quota for  filling  up  permanent vacancies has been  450 provided at the initial stage of recruitment but a quota has been made after recruitment at the stage of confirmation.     In  this connection it is relevant to mention  that  the quota  and rota which was introduced by the 197 1  amendment of  Rule 23 cannot be questioned to be arbitrary in as  much as  when recruitments to a particular service are made  from more  than one source quota and rota may be introduced  con- sistent  with the equality clause envisaged in  Articles  14 and  16 of the constitution. This decision is new well  set- tled  by several decisions of this Court, the last of  these decisions is in the case of Narender Chadha & Ors. v.  Union of  India & Ors., [1980] 1 SCJ 307. In the instant case  the question  is whether by the substitution of rule 23  by  the amendment  Act  of 1971 the long years  of  service  already rendered  by  the  temporary Assistant  Engineers  who  have become  members  of the cadre of the  service  of  Assistant Engineers  fulfilling all the conditions can be  arbitrarily and  unreasonably  excluded while fixing seniority  and  ’T’ category  officers  can be deprived of their long  years  of services being rackoned for determination of seniority.     It  has been urged on behalf of the appellants that  the classification  made between temporary  Assistant  Engineers though  working  for a considerable period of time  but  not appointed  against permanent vacancies and  direct  recruits appointed on the basis of the examination against  permanent vacancies  on  probation is based on merits. In  support  of this submission the decision in State of Jammu & Kashmir  v. Triloki  Nath Khosa &’Ors., [1974] 1 SCC 771 has been  cited at  the bar. This decision in our considered opinion is  not applicable  to  the instant case inasmuch as  in  that  case recruitment  to the cadre of Assistant Engineers in Jammu  & Kashmir  Engineering Service was made by direct  recruitment of degree holders in civil engineering as well as by  trans- fer of degree or diploma holders having served as Supervisor for  a period of not less than five years.  The  recruitment rules  also further provided for promotion to the  cadre  of Executive Engineer on the basis of merit, ability and previ-

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ous  service record of the candidates. In 1970 the  Jammu  & Kashmir  Engineering  (Gazetted) Service  Recruitment  Rules 1970  were  made providing that recruitment to the  post  of Executive  Engineers  was to be made only  by  promotion  of Assistant Engineers possessing degree in civil  engineering. It  was held by this Court that the classification made  had reasonable nexus for classification namely to achieve admin- istrative efficiency in the engineering service by introduc- ing higher qualification for promotion to the post of Execu- tive Engineer. In the instant case, all the Assistant  Engi- neers whether appointed in a temporary post of the cadre  or in the perma-  451 nent post of the cadre are recruited directly from Graduates in  Civil  Engineering. The only difference is that  due  to exigencies of service a large number of Assistant  Engineers were  recruited by the Government in consultation  with  the Public  Service Commission in accordance with Rule  5(a)(ii) of  1936  Rules as it was prior to  its  amendment,  against temporary vacancies and those Engineers have been working as Assistant  Engineers since their appointment from  1956  on- wards till the end of 1961 when the impugned 1961 Memorandum was promulgated by the Government and thereafter the amended Rules of 1969 and 197 1 were made. It was for the first time that  the amendment in the rules was made  retrospective  by introducing the process of selecting Assistant Engineers  to be  appointed directly against permanent posts on  probation through  examination to be conducted by the  Public  Service Commission  in 1962. Necessary amendments were also made  in the Rules 3(c), 5 and 6 of the 1969 Rules as well as Rule 23 of  the 1971 Rules in order to provide better  prospects  of promotion to these direct recruits by laying down that their seniority  will be reckoned from the date of their  appoint- ment on probation whereas in the case of Assistant Engineers who  were working for years together but  appointed  against temporary  posts,  their seniority from the  date  of  their appointment  after  consultation  with  the  Public  Service Commission cannot be counted for the purposes of  determina- tion  of seniority unless they are appointed against  perma- nent  posts and confirmed. Therefore it cannot be said  that higher education qualification has been prescribed as in the case  of  State of Jammu & Kashmir v. Triloki Nath  Khosa  & Ors.  for  the  purpose of  appointing  Assistant  Engineers directly against permanent post on promotion. In the instant case undoubtedly, both ’T’ and ’D’ category Assistant  Engi- neers  are Graduates in Engineering and both are  performing the  same nature of work. It is also significant to note  in this connection that the appellants were previously appoint- ed as Assistant Engineers against temporary vacancies of the cadre but subsequently on the basis of this examination they have been appointed directly on probation against  permanent vacancies.  There  is nothing to show that  these  Assistant Engineers had shown any extraordinary or brilliant  perform- ance as Assistant Engineers. It is also to be noted that the temporary Assistant Engineers have acquired much  experience in  their work having been appointed much before the  direct recruits against permanent vacancies. As stated hereinbefore that under the 1936 Rules the Assistant Engineers  appointed against  temporary vacancies became members of  the  Service under  the  then  Rule 3 and they were  eligible  for  their seniority  being  reckoned from the date of  their  becoming member of the Service. In these circumstances it is  evident that the impugned 452 Rules  of 1969 and 197 1 purport to take away or to  cruelly

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cut off the long years of valuable service rendered by these respondents i.e. Assistant Engineers appointed in  temporary vacancies  of the cadre only to the pretext  of  appointment against  permanent post and confirmation. The effect of  the 1969  and  1971 amendments was thus to take  away  from  the officers  appointed  to the temporary cadre  through  Public Service  Commission i.e. after the selection by the  Commis- sion the long years of service after becoming members of the Service.  It is also pertinent to mention here  that  though these temporary posts of the cadre have been continuing  for over years together yet these temporary posts have not  been made permanent before 1961 and thereby depriving the Assist- ant Engineers from being appointed against permanent  vacan- cies  even  though they have become members of  the  service being appointed in a substantive capacity. These  temporary, Assistant Engineers after introduction of the amended  rules have been relegated to a very uncertain position as to  when they  will  be selected against permanent vacancies  by  the Commission  in  the 50% quota provided under Rule 6  of  the amended Rules to become members of Service and to have their seniority  reckoned.  Moreover the fate of  those  Assistant Engineers who are selected and appointed in temporary  posts on the basis of the results of the examination is also  very uncertain inasmuch as they will be considered for  selection by the Commission against the quota for temporary  Assistant Engineers  after  the Assistant Engineers  appointed  before them are all considered for selection in the said quota  set up for the temporary Assistant Engineers in permanent vacan- cies  even though they have been appointed through the  same process  of examination considering all these  circumstances we  are constraint to hold that the impugned  provisions  of Rule 3(c), 5 and 6 of the 1969 Rules and Rule 23 of the 1971 Rules  are arbitrary, irrational an unreasonable  infringing Articles  14  and  16 of the Constitution  insofar  as  they affect the question of determining the inter se seniority of temporary  Assistant Engineers appointed by  the  Government i.e.  T-category  officers under rule 5(2) of the  Rules  as against  that of D-category officers i.e. officers  directly recruited by the Government against permanent vacancies  and placed on probation.     An  argument has been advanced on behalf of  the  direct recruits i.e. the appellants that they having duly succeeded in  the competitive examination on the basis of the  amended rules  cannot be deprived of their right to be  promoted  on the basis of the fixation of their seniority in the cadre of Assistant  Engineers as provided in the amended rule  23  of 1971  rules. This argument in our considered opinion  cannot hold      453 good  in  as much as the cadre of Assistant  Engineers  com- prises  of  both permanent and temporary  posts.  Rule  3(b) specifically  lays down that an Assistant  Engineer  becomes member  of  the service as soon as he is  appointed  in  the substantive capacity even in a temporary post in the  cadre. It  is  inconceivable  how a member of the  service  can  be prevented from having his service reckoned for determination of  seniority in the service from the date he became  member of the Service. The substituted rule 23 introduced in 197  1 is  on the face of it unreasonable and arbitrary in as  much as  it  purports  to deprive a member of  the  service  from having his seniority reckoned on the ipse dixit of the rules that  he  has not been appointed in a  substantive  vacancy. Rules  3(c) 5 and 6 of 1969 Rules are arbitrary,  irrational and  not reasonable infringing Article 14 of  the  Constitu- tion.  While  considering this we of course agree  with  the

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finding  arrived  at by the High Court that so  far  as  the selections made on the basis of the competitive  examination on  the  basis of the amended rules of 1969 and 197  1  read with  G.O. dated 7.12. 196 1 more than two  decades  before, should not be disturbed in as much as these selections  were not  challenged  during  all these years  and  these  direct recruits have worked there since their appointment. We  also make it clear that our decision will not affect any  confir- mations  or substantive promotions made prior to the  filing of the writ petitions.     It appears that an interim order was made by this  Court on 5.5. 1982 to the effect that "if any appointments  pursu- ant to the fresh rules which are framed, are made these will be subject to the results of these appeals." It also appears that  in Civil Appeal Nos. 2616-19 of 1981 this Court  while disposing of those appeals by order dated 15.4.1981 directed that in regard to promotions already made in accordance with the impugned seniority list there shall be status quo as  on the  date  on  which the writ petitions were  filed  in  the court.  It  was also directed that such promotions  and  any future  promotions  made  in accordance  with  the  impugned seniority list will abide by the result of these appeals. We make it clear that since we are dismissing these appeals all those  ad hoc promotions given during the pendency of  these writ petitions as well as civil appeals will not confer  any right on the promotees.     We  further hold that so far as the temporary  Assistant Engineers who have been appointed substantively to temporary posts  and have been working for years together after  being only recruited and selected by the Public Service Commission as  required under the service rules have become members  of the service but so far as purely ad hoc employees or employ- ees on purely officiating basis or employees purely for  454 a  temporary  period in the cadre of Assistant  Engineer  in Public Works Department being not members of the service  in accordance with the service rules, are not entitled to  have the  benefit of their such adventitious, purely ad  hoc  and temporary service being not appointed substantively even  to a  temporary post will not be reckoned for determination  of seniority unless and until they become members of the  serv- ice in accordance with the provisions of service rules. Only those ad hoc appointees whose services have been regularised by the regularisation rules framed under proviso to  Article 309  of  the Constitution after being duly selected  by  the Selection Committee and becoming member of the service, will be  entitled  to seniority only from the date  of  order  of appointment after selection in accordance with those regula- tions as provided in rule 7 of the regulations.     We  mention in this connection the observations of  this Court  in the case of Ashok Gulati and Ors. v. R.S.  Jain  & Ors., AIR 1987 (SC) 424 (to which one of us was a party). It has been observed as follows:-               "According  to the accepted canons of  service               jurisprudence, seniority of a person appointed               must  be reckoned from the date he  becomes  a               member  of the service  ........  It  is  well               settled   that   an  ad  hoc   or   fortuitous               appointment  on a temporary or stop-gap  basis               cannot  be taken into account for the  purpose               of   seniority  even  if  the  appointee   was               qualified to hold the post on a regular basis,               as  such  temporary tenure hardly  counts  for               seniority    in   any   system   of    service               jurisprudence."

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   Similar  observation was also made by this Court in  the case  of  State of Gujarat v.C.G. Desai, [1974] 2  SCR  255. Therefore  we make it clear that the period of service  ren- dered by the ad hoc appointees before their service has been duly  regularised  in accordance  with  the  regularisations rules,  cannot  be  taken into account  in  reckoning  their seniority  in  service. Their seniority in service  will  be counted only from the date when such ad hoc appointees after regularisation  in  accordance  with  concerned  rules  have become members of the service.     We  direct the authorities concerned to prepare a  fresh seniority  list  of all the members of the  service  in  the cadre  of  Assistant Engineer in the PWD Department  on  the basis  of  their length of service from the date  they  have become  members of the service fulfilling all  the  require- ments laid down in the service rules. We cannot but  observe in  this  connection  that though  the  temporary  Assistant Engineers have  455 been  duly selected by the Public Service  Commission  after they  are appointed as temporary Assistant Engineers yet  in spite of several directions given by this Court, the author- ities  concerned did not think it fit and proper to  prepare the  seniority list in accordance with the directions  given by this Court and as a result no seniority list in the cadre of  Assistant Engineer has yet been prepared  following  the directions made even by this Court as embodied in the  deci- sion in Baleshwar Dass & Ors. v. State of U.P. & Ors. On the other  hand amendments have been made to the  existing  1936 service rules which per se seem to be arbitrary and this led to  a spate of litigations. We do hope and expect that  con- sidering all these, the Government will take effective steps for  preparation of seniority list as early as  possible  in order to create incentive for the members of the service  by holding out prospects of future promotions in the  interests of the service.     In  the premises aforesaid we dismiss these appeals  and affirm the judgment and order of the High Court of Allahabad quashing  the said seniority list dated  29.7.1980  together with  supplementary  seniority lists dated 18.12.  1980  and 19.12. 1980 relating to Civil Engineering Wing. Rules  3(c), 5  and 6 of 1969 Rules as well as Rule 23 of 1971 Rules  are also  quashed.  The  condition in  Office  Memorandum  dated 21.1.1980,  Annexure  2 of Writ Petition No.  2447  of  1980 providing  that for the selection for the post  of  Superin- tending  Engineer the officer must be a confirmed  Executive Engineer is quashed. A writ of mandamus be issued  directing the  Government to prepare a fresh seniority list  of  Engi- neers in the Civil Engineering and E.M. Wing respectively in the light of the observations made hereinbefore. This order, however,  will  not affect any confirmations  or  promotions (other  than ad hoc promotions) made before  29.11.1979.  In the  facts and circumstances of the case, there will  be  no order as to costs. H.L.C.                                         Appeals  dis- missed. 456