08 May 1992
Supreme Court


Case number: W.P.(C) No.-001438-001438 / 1981
Diary number: 63125 / 1981








CITATION:  1993 AIR  978            1992 SCR  (3) 133  1992 SCC  Supl.  (2) 318 JT 1992 (3)   243  1992 SCALE  (1)1179

ACT:      Central  Public  Works Department  Assistant  Engineers (Central   Engineering   Service  and   Central   Electrical Engineering Service) Group ’B’ (Confirmation and  Seniority) Rules,  1979:  Rules  4 and 5 (As amended  by  1982  Rules)- Constitutional-Validity of.      Central     Engineering      Service-C.P.W.D.-Assistant Engineers-Direct   recruits   and    promotees-Confirmation- Determination of seniority-Rule 4 in so far as it predicates determination  of  seniority based on date  of  confirmation held violative of Articles 14 and 16(1).      Central  Engineering  Service,  Class  II   Recruitment Rules, 1954-Part II-Rules 3,4,5,.      Central      Engineering     Service      Class      II Recruitment (Amendment) Rules, 1976 and 1978.      Constitution of India, 1950: Article 309:      Proviso-Rules   framed   under-Held   legislative    in character-Can be struck down only on the grounds upon  which a legislative measure can be struck down.

HEADNOTE:      The  Central Engineering Service Class  II  Recruitment Rules, 1954 provided for four methods of appointment to  the category of Assistant Engineers in the Central Public  Works Department,  viz.,  (i) by competitive  examinations  to  be conducted  by Union Public Service Commission -  Rule  3(a); (ii)  by  direct appointment, i.e.  selection  from  amongst temporary engineers and temporary Section Officers  employed on  the  Civil  engineering  side  of  the  C.P.W.D.   after consultation with the Union Public Service Commission - Rule 3(b);  (iii) by promotion, i.e. by selection on  merit  from amongst  permanent  Section Officers employed in  the  Civil Engineering  side  of  the C.P.W.D. -  Rule  3(c);  (iv)  by transfer - Rule 3(d). From time to time appointments to  the category of Assistant Engineers were made from                                                        134 different sources.  Since particular method of  confirmation was followed, some of the temporary Assistant Engineers, who we’re  directly  appointed  under Rule 3(b),  filed  a  Writ Petition  in Delhi High Court challenging  the  confirmation procedure   stating  that  the  other  Assistant   Engineers



recruited by competitive examination under Rule 3(a) as well as  those directly appointed under Rule 3(b)  and  appointed subsequent   to  them  have  been  confirmed   leaving   the petitioners   unconfirmed.   The  High  Court  allowed   the petition by directing that the petitioners be considered for confirmation and their inter se seniority fixed accordingly.      Subsequent  to  the  judgment of the  High  Court,  the Central  Government prepared a seniority list  of  Assistant Engineers   in  1972  which  was  based  on  the   date   of appointment/promotion  and  communicated  to  all  concerned inviting  objections  thereto.   However,  before  the  said seniority list could be finalised, the decision of the Delhi High  Court was challenged before this Court; it was  upheld by  this Court.  After the judgment of this Court, the  1954 Rules  were amended in 1977 and again in 1978.  The  Central Government than promulgated Central Public Works  Department Assistant Engineers (Central Engineering Service and Central Electrical  Service) Group ’B’ (Confirmation and  seniority) Rules,  1979  with retrospective effect  from  1954.   These rules,  which  prescribed  the  mode  of  determination   of seniority  of Assistant Engineers, were extensively  amended in 1982.      The effect of the amended Rules was that the  Assistant Engineers  who  were appointed by  direct  recruitment  from amongst  temporary  engineers  and  Section  Officers  after consultation  with the Union Public Service Commission  were sought to be treated as promotees.  Persons appointed  under 3(a)  were  treated as appointed against permanent  post  of Assistant   Engineers  and  were  given  prior   claim   for confirmation.   Appointments  made prior to  22nd  December, 1959  and  those  made after this date were  to  be  treated differently for the purpose of confirmation.  The  Assistant Engineers  appointed before 22nd December, 1959 were  to  be confirmed in the order of their seniority.  But in the  case of appointments made subsequent to 22nd December, 1959,  the Assistant  Engineers recruited against permanent posts  were first to be confirmed en bloc against permanent vacancies in that  year  and  thereafter  Assistant  Engineers  recruited against temporary posts and those promoted from lower  posts were  to be confirmed against permanent vacancies  available in that                                                        135 year  by  continuous interspersing of one promotee  and  one direct  recruit  appointee against temporary post  till  the permanent vacancies of that year exhausted.      Giving effect to the 1979 Rules a fresh seniority  list of Assistant Engineers was prepared.  The petitioners  filed a  Writ petition in this Court challenging the  validity  of 1979  Rules  and for quashing the 1979  seniority  list  and restoration  of  1972 list alleging that by virtue  of  1972 seniority  rules, the promotees have been relegated  to  far lower  positions in seniority as compared to their  position in 1972 list.      Allowing the petition, this Court,      HELD:  1. Rules made under the proviso Article  309  of the  Constitution being legislative in character  cannot  be struck  down merely because the Court thinks that  they  are unreasonable.   They can be struck down only on the  grounds upon which a legislative measure can be struck down. [154 G]      B.S.  Vadera v. Union of India, A.I.R. 1969  S.C.  118; B.S.  Yadav  v.  State of Haryana,  A.I.R.  1981  S.C.  561, referred to.      2.    Rule  4 of the Central  Public  Works  Department Assistant Engineers (Central Engineering Service and Central Electrical Engineering Service) Group ‘B’ (Confirmation  and



Seniority)   Rules,   1979  (as  amended  by   the   Central Engineering  Service  and  Central  Electrical   Engineering Service)  Group ‘B’ (Confirmation and  Seniority)  Amendment Rules,  1982,  insofar  as it predicates  the  seniority  of Assistant  Engineers,  appointed on or  after  December  22, 1959, on the date of their confirmation, is violative of the fundamental  rights guaranteed to the petitioners and  other similarly  placed  Assistant Engineers by Articles   14  and 16(1)  of the Constitution of India and accordingly held  to be inoperative and void. [157 -D-E]      3.  The  cadre,  it  is  admitted,  consists  of   both permanent and temporary members.  The Rules do not say  that promotees shall not be appointed against permanent posts  or that  they shall be appointed only against temporary  posts. It  is true that generally direct recruitment is  made  only against  permanent vacancies whereas promotions may be  made both against permanent as well as temporary vacancies.   But in this service,                                                         136 It  is  clear  from the Rules themselves  that  even  direct recruitment  is made against temporary posts.  There  is  no distinction between the four erstwhile categories  mentioned in  unamended  Rule 3 of the  Central  Engineering  Service, Class II Recruitment Rules, 1954. All the four sources  were equal quality-wise. Neither was superior to the other.  They could  be  appointed  both  against  permanent  as  well  as temporary  posts.  In these circumstances, bringing  in  new concepts of "Assistant Engineers recruited against permanent posts",  and "assistant Engineers promoted  from  the  lower ranks" through the 1979 Rules, as amended by 1982 Rules, and treating the latter category unfavourably on that basis vide Rules 4 and 5 of 1979/1982 Rules, is a clear case of hostile discrimination. [155 B-F]      4.  The  entire  course of  amendments  and  new  Rules appears to be designed to undo the effect of the Judgment of the  High  Court with retrospective effect.   Not  only  the classification  has no basis in the Rules-or in the  factual situation-It  is  unreasonable  and   unjust;  it  is   also unrelated  to  the  object-the object  being  efficiency  of administration. [155H, 156-A]      5. The formula constrained in Rule 5 of 1979 Rules  (as amended  in  1982)  is  devised  to  govern  the  order   of confirmation.  This very rule is discriminatory inasmuch  as it  seeks to treat to equals unequllly, to the prejudice  of what is now compendiously called, the class of  "Promotees". [157-C]      6. The seniority of Assistant Engineers appointed on or after  December  22, 1959 shall be determined  on  the  same basis and in the same manner as it is determined in the case of  Assistant  Engineers appointed prior to the  said  date. [157-F]

JUDGMENT:      S.B.  Patwardhan  and Anr.v. State of  Maharashtra  and Ors., A.I.R. 1977 S.C. 2051,relied on.      Jagmal Singh Yadev v. M. Ramaya, A.I.R. 1977 S.C. 1474, referred to. &      ORIGINAL  JURISDICTION : Writ Petition (C) No. 1438  of 1981.      (Under Article 32 of the Constitution of India.)      Vijay  K.  Jain, Baldev Atreya and S. Shekhar  for  the Petitioners.



    V.C.  Mahajan, Ms. Sarla Chandra, V.K. Verma and  Ashok Bhan for the Respondents.                                                          137 Ashok Grover (NP) for the intervenor. The Judgment of the Court was delivered by B.P.  JEEVAN REDDY, J. This writ petition is an instance  of the  classic dispute between promotees and direct  recruits. The  writ petitoners are Assistant Engineers in the  Central Engineering  Service-Class III (Gazetted Officers)  in  the Central  Public Works Department (C.P.W.D.). Appointment  to the category of Assistant Engineers’ Serivce is  governed by the Central Engineering Service, Class-II Recruitment Rules, 1954 (hereinafter referred to as ‘1954 rules’). These Rules, are  divided into six parts. Part I is general. It  contains the interpretation clause. Part-II deals with the method  of recruitment. Rules 3 to 5, relevant for our purpose occur in this  part.   The Rules before their amendment in  1977  and 1978 read as follows:          "3. Recruitment to the Service shall be made by any          of the following method:-          (a)   By  competitive  examination  in   India   in          accordance with Part III of these Rules.          (b)  By direct appointment in accordance with  Part          IV  of  these Rules of persons  selected  in  India          otherwise than by competitive examination.          (c) By promotion in accordance with Part V of these          Rules.          (d) By transfer in accordance with Part VI of these          Rules."          "4.(a) All appointments to the service or to  posts          borne  upon the cadre of the Service shall be  made          by the Government.          (b) No appointment shall be made to the Service  or          to any post borne upon the cadre of the Service  by          any method not specified in Rule 3.          (c) Subject to  the provisions of sub-rule (b), the          method or methods of recruitment to be employed for          the purpose of filling any particular  vacancies in          the  Service  or such vacancies therein as  may  be          required to be filled during any                                                     138          particular  period and the number of candidates  to          be recruited by each method shall be determined  by          the Government.          5. Appointments to the Service made otherwise  than          by promotion will be subject to orders issued  from          time  to  time  by the  Ministry  of  Home  Affairs          regarding  special representation in  the  Services          for specific sections of the people".      Rule  3 thus provided for four methods  of  appointment namely,  (a) by competitive examination held in   accordance with Part III of the said rules, which means an  examination conducted  by the U.P.S.C Rule 21 which occurs in  Part  III provides that the candidates selected under this part  shall be  appointed  as Assistant Engineers on probation  for  two years and if considered fit for permanent appointment,  they will be confirmed in their appointments;      (b) by direct appointment in accordance with Part IV of these Rules i.e., otherwise than by competitive examination. Rule 23 occurred in Part IV. Recruitment by selection  under this  rule was to be made " from among  temporary  engineers and  temporary  section  officers  employed  on  the   civil engineering  side  of the Central  Public  Works  Department after consultation with the Commission." The proviso to Rule 23(1), however, provided that it is not necessary to consult



the commission in the case of any person, if the  commission were  consulted in connected with his temporary  appointment to the service.  The eligibility criteria are the same as is provided  for  appointment under method (a)  except  in  the matter of age.  The age of the candidate should not be  more than 40 years;      (c) by promotion in accordance with Part V. Rule 24  is the  only rule occuring in Part V. It reads "recruitment  by promotion  shall be made by selection on the basis of  merit from among permanent section officers employed in the  civil engineering side of the Central Public Works Department."      (d) by  transfer in accordance with Part VI of the said rules.  Part VI again contained a solitary rule -  Rule  25. We need not refer to this rule since it is not relevant  for our purpose.      Rule 4 provided that no appointment shall be made to the service                                                         139 except  in  the manner prescribed by Rule 3. Clause  (c)  of Rule   4,  however,  empowers  the  Central  Government   to determine  the number of candidates to be recruited by  each method, among other matters.      After the coming into force of 1954 Rules, appointments were  being made from different sources from time  to  time. In  the  matter of confirmation,  however,  the  authorities followed  a particular method which gave rise to  discontent and disquiet among certain sections leading to the filing of a  writ petition in the Delhi High Court, being  Civil  Writ Petition No. 238 of 1969.  It is necessary to briefly notice the   facts  of  this  writ  petition  and   the   principle enunciated by the Full Bench of the Delhi High Court  while disposing  it, as also the decision of this court on  appeal reported  as Jagmal Singh Yadav v. M. Ramaya  A.I.R.  (1977) S.C. 1474.   Writ Petition  No.238 of 1969 was filed  by  12 Assistant   Engineers  who  were  appointed   as   Assistant Engineers  on various dates between 18th October,  1958  and 8th  January,  1963 to officiate temporarily  until  further orders.  The respondent Nos. 1, 2 and 3 to the writ petition were  the  Union  of India, U.P.S.C.  and  another  official respondent.   Respondents  4 to 51 were  recruited  directly under  clause  (a)  of Rule 3 read with Part  III  i.e.,  by competitive  examination held by U.P.S.C., while  respondent 62 to 99 were recruited directly under clause (b) of Rule  3 read  with Part IV i.e., in consultation with  the  U.P.S.C. but otherwise than by holding competitive examination.   The case of the petitioners was that prior to their  appointment as  Assistant  Engineers  they  were  working  as  temporary section officers in C.P.W.D. (in the subordinate engineering services,   Class-III  Non-gazetted)  and  that  they   were appointed  as Assistant Engineers in accordance with  clause (b)  of  Rule  3 read with Part IV  of  1954  Rules.   Their grievance was that though respondents 4 to 99 were appointed subsequent to them, they have been confirmed in the category of   Assistant   Engineers  leaving  the   writ   petitioner unconfirmed.   They submitted that they were entitled to  be confirmed  prior  to  or at any rate  along  with  the  said respondents.  On behalf of the respondents, it was submitted that  the writ petitioners therein were not appointed  under clause (b) of Rule 3 read with Part IV but under clause  (c) of Rule 3 read with Part V.  It was also submitted that  the writ  petitioners were appointed "to  officiate  temporarily and  until  further  orders"  as  Assistant  Engineers  and, therefore,  they cannot claim parity with respondents  4  to 99. The writ petition was heard by a Full Bench of the Delhi High Court which allowed the writ petition in the  following



terms:                                                        140      (1)  The writ petitioners were, and must be  deemed  to have  been, appointed under clause (b) of Rule 3  read  with Part IV and not under clause (c) of Rule 3 read with Part V. At  the  time  of  their appointment,  they  held  the  same qualifications as the respondents.      (2) That the petitioners in the said writ petition  and other persons similarly situated like them.  Who had  joined the service earlier, should be confirmed first according  to the  dates  of joining the service as  Assistant  Engineers, after  giving  weightage, in preference to  the  respondents therein.      (3)  That there was no final determination of quota  as contemplated by Rule 4(c) between the  four  methods/sources of recruitment specified in Rule 3. Fixation of quota was  a matter  still under consideration of the Central  Government but  no  final  decision was taken  till  the  rendering  of decision by the High Court.      (4)  The writ petitioners did not really  question  the validity  of the appointment of any of the respondents 4  to 99  but  only  the validity of their  confirmation.  It  is, however,  not necessary to set aside their confirmation  for giving  relief to the writ petitioners in the  circumstances of the case.  The operative portion and the direction issued by the High Court is better to put in their own words:          "For  the  foregoing  reasons  we  hold  that   the          petitioners  were appointed as temporary  Assistant          Engineers rule 3(b) read with part IV (rule 23) and          were entitled to be considered for confirmation  as          Assistant  Engineer  when many of  the  respondents          were confirmed.  Since they were not so  considered          it  would normally follow that the confirmation  of          the  said respondents will have to be set aside  if          the  vacancies available at the relevant time  were          less  than  the  eligible  persons  including   the          petitioners and the confirmed respondents.  We have          already  pointed out that Mr. Gopal Krishan  stated          before us on behalf of the petitioners that they do          not question the validity of the appointment of any          of  the  respondents  Nos. 4 to  99  but  that  the          petitioners   question   the   validity   of    the          confirmation  of those of the respondents who  have          been confirmed.  However we consider that it is not          necessary to set aside the said confirmation of the          following  reasons:  Mr. Gopalan  Krishanan  stated          before us that out of the sanctioned No. of post of          Assistant                                                        141          Engineer,  a  large number of posts  have  remained          vacant  and  they will be more than  sufficient  to          accommodate  the  petitioners  in  case  they   are          confirmed.  The correctness of this  statement  was          not disputed by the counsel for the respondent.  In          other  words there are a sufficiently large  number          of  vacant posts for accommodating the  petitioners          if  they are considered and confirmed.  It is  thus          not  necessary and we are not inclined  to  disturb          the   existing  situation  by  setting   aside   or          questioning  the confirmation of these  respondents          who have been confirmed.             In the result, we allow the writ petition partly          and  direct the respondents (1) to (3) to  consider          the   petitioner  for  confirmation  as   Assistant          Engineer,  and to adjust the inter se seniority  of



        such of the petitioners as might be confirmed after          consideration   and the respondents  in  accordance          with law.            In  the circumstances of the case we  direct  the          parties  to  bear  their  own  costs  in  the  writ          petition."      No  appeal was preferred against the said  judgment  by the  Union  of  India.   However,  one  of  the   contesting respondents  viz.,  respondent No.51 in  the  writ  petition approached  this  Court questioning the correctness  of  the said  decision.   This court, in the  decision  referred  to above, agreed with the High Court that the writ  petitioners in  the  said  writ petition must be  deemed  to  have  been appointed  under  Rule 3(b) read with part IV of  the  Rules inasmuch  as the Committee which selected them was  presided over by a member of the U.P.S.C. This court also agreed with the High Court that there was no final determination by  the Union of India on the question of inter se quota as  between the  four sources/channels of recruitment specified in  Rule 3.  Accordingly, the appeal was dismissed.  While dismissing the  appeal, this court made the following  observations  in the penultimate para of its judgment:          "Before  parting  with the records we  consider  it          proper   to   point  out  that   persons   entering          Government  service  have the right to  know  where          they  stand  with  regard to  their  conditions  of          service  and future promotion.  Since there  is  no          impediment  in  the way of the Government  to  make          appropriate rules regarding conditions of  service,          even retrospectively, subject to constitu-                                                        142          tionality, keeping in view justice and fair play to          all  concerned,  it is a sorry sight to  find  that          officers  in the same Service fight over the  years          in  courts  having failed to get redress  from  the          Government.   When officers are qualified  to  hold          certain  posts  after  recruitment,  according   to          rules,  and  they have put in a  number  of  years,          without  break, in the service to the  satisfaction          of the authorities, it is impermissible to invoke a          recondite  rule  and call it in aid  to  deprive  a          large  section  of  officers  of  the  benefit   of          otherwise satisfactory service.  The matter may  be          different when posts in the Service are  abolished,          appointments  to  the  Service  are  transitory  or          fortuitous  or incumbents are found unsuitable  for          absorption.   The history of this Service  is  that          temporary  posts are first created and  then  after          some years they are converted into permanent posts.          The Government, therefore, cannot merely be an  on-          looker  where  it  could  rightly  claim  to  be  a          legitimate arbiter on its own authority and  having          proper  regard to all just claims.  We also  cannot          held feeling that thinking in the Ministry has  not          always  been  uniform, sympathy warning  or  waxing          form time to time for reasons not always manifest."      The petitioners in C.W.P.238/69, it may be noted,  were not  promotees.   They contended - an which  contention  was upheld  by the Delhi High Court and this court -  that  they are  direct recruits having been appointed under  Rule  3(b) read with part IV of 1954 Rule. Respondents 4 to 99 to  that writ  petition  were  also direct recruits -  some  of  them having been appointed under Rule 3(a) read with part II  and the  others under Rule 3(b) read with part IV.  It was  thus not a dispute between promotees and direct recruits - as the



Rules  then stood - but as between two categories of  direct recruits.  In fact, a large number of respondents  appointed under  Rule  3(b)  were in the same  position  as  the  writ petitioners   therein.   The  Respondents,  no  doubt,   had contended  that the writ petitioners therein were  promotees appointed  under  Rule  3(c)  read  with  part  V  but  that contention was rejected.      After  the  judgment of the Delhi High  Court  in  writ petition  No.238  of 1969 (in November,  1971)  the  Central Government prepared a seniority list of Assistant  Engineers in    the    year   1972,    based   on    the    date    of appointment/promotion,  and  communicated to  all  concerned inviting objections, if                                                        143 any,  thereto.  Before the said provisional  seniority  list could be finalised, this court rendered its decision in  the appeal  on 6th January, 1977.  Now what happened  after  the pronouncement  of  the said judgment by this court  is  very significant.      On   17th   January,  1977,  the   Central   Government (President)  issued  GSR 168 amending the 1954  Rule  called Central   Engineering   Service,   Class   II,   Recruitment (Amendment)  Rules 1976.  By clause (b) of Rule 2  of  these Amendment Rules, Rule 24 was substituted altogether.   After its substitution, Rule 24 reads as follows:          "24. Recruitment by promotion shall be made          (i)  50%  by selection on the basis of  merit  from          among  permanent Junior Engineers employed  on  the          Civil Engineering side of the Central Public  Works          Department; and          (ii)  50% by selection from among Junior  Engineers          employed  on  the  Civil Engineering  side  of  the          Central Public Works Department, after consultation          with  the  Union Public Service Commission  on  the          basis   of  a  limited   Departmental   Competitive          Examination which shall be held in accordance  with          the  rules  to be made by the  Central  Government,          after  consultation with the Union  Public  Service          Commission."      It  may be noted that Rule 24 in  part V was  relatable to clause (c) of Rule 3, which dealt with promotion.  Now by virtue  of  the  above amendment, the  category  covered  by clause  (b)  of Rule 3 was sought to be brought  within  the preview of Rule 24, without correspondingly amending Rule 23 or  Rule 3(b).  In other words, the Assistant Engineers  who were  appointed by direct recruitment from  among  temporary engineers and temporary section officers after  consultation with Public Service Commission were sought to be treated  as promotees.   Evidently, the above amendments were issued  in some  haste without a proper scrutiny which is evident  from the   fact   that   only  Rule  24   was   amended   without correspondingly  amending  other Rules in  the  1954  Rules. When   this  was  realised,  it  is  evident,  the   Central Government  came forward with yet another set  of  amendment Rules  contained in GSR 418 dated 8th March, 1978.  Now,  by these  Amendment  Rules (1978 Amendment Rules)  Rule  3  was substituted      altogether.       Instead      of      four channels/sources/methods of recruitment, they                                                        144 became only two viz., direct recruitment and promotion.   As substituted, Rule 3 read as follows:          "3. Recruitment to the service shall be made by way          of the following methods:-          (a)   by  competitive  examination  in   India   in                accordance with Part III of these Rules.



        (b)  by  promotion in accordance with  part  IV  of               these Rules."      To be consistent with the amendment to Rule 3,  certain other amendments were also made.  They were:          (a) part IV containing Rule 23 was omitted;          (b) part V  and Rule 24 therein were renumbered  as              part IV and Rule 23 respectively; and          (c) part IV containing Rule 25 was omitted.      Similar amendments were made with respect to Electrical Engineering Service.      The  net  effect of the 1977 and  1978  amendments  was this:          (i)  only  the  Assistant  Engineers  recruited  in          accordance  with  unamended clause (a)  of  Rule  3          (also  clause (a) of Rule 3 after  amendment)  read          with  part  III  were  to  be  treated  as   direct          recruits.          (ii) recruitment by transfer as provided earlier by          clause  (d) of Rule read with part VI  was  deleted          altogether; and          (iii)  Assistant Engineers appointed  under  clause          (b) read with Rule 23 (part IV) and those appointed          under  clause (c) read with Rule 24 (part  V)  were          clubbed  together and called/treated  as  promotees          with  equal  quota as between them.   It  is  worth          recalling  that clause (b) of Rule 3, as  it  stood          before  the said Amendment, expressly termed  those          appointed thereunder as direct recruits.                                                        145      The  matters  did not stop there.  Purporting  to  draw inspiration   from   the  observations  contained   in   the penultimate  para  of the judgment of this court  in  A.I.R. 1977  S.C. 1474, the Central Government framed a new set  of rules  called  "Central Public  Works  Department  Assistant Engineers   (Central   Engineering   Service   and   Central Electrical  Service)  Group B (confirmation  and  seniority) Rules,  1979.  "Though these rules were issued  in  January, 1979  they  were given retrospective effect from  21st  May, 1954  i.e.,  the date on which the 1954 Rules  were  brought into force.  Since the validity of these rules - as  amended in  1982 - is the main issue in this writ petition it  would be  appropriate  to  notice  these Rules.   Rule  2  is  the definition  clause.   Clause  (a)  defines  the   expression "appointed  day"  to mean 21st May,  1954.   The  expression "Service  Rules"  defined in Clause (b) refer  to  the  1954 Rules.   Sub-rule  (2)  of Rule 2 says that  the  words  and expressions  not defined in this rule shall carry  the  same meaning as is assigned to them in the service Rules.  Rule 3 provides  that every member of service whether appointed  by direct recruitment, by promotion or by transfer shall be  on probation  for  a period of two years unless the  period  of probation has already been approved by the Government  under Service Rules.  Rules 4 and 5 which dealt with  confirmation and seniority respectively constituted the central theme  of these rules. It is, however, not necessary to set out  these Rules  inasmuch  as they have been  totally  substituted  in 1982.   Suffice  it  to  state  that  Seniority  was  to  be determined  with reference to the date of  confirmation  and the  date  of confirmation was determined  in  a  particular manner,  to  be  elaborated  hereinafter  -  and  not   with reference  to the date of appointment or date of  promotion, as  the  case may be.  Actually, the purport  of  the  Rules remains the same even after amendment.  Even so, it would be sufficient  if  we refer to Rules 4 & 5  as  substituted  in 1982.   But before we refer to 1982 Amendment  Rules,  which



were  framed  and  issued  after  the  filing  of  the  writ petition,  it is necessary to refer to a few more  facts  as also to the pleadings to the parties      Giving  effect to the 1979 Rules, a  fresh  provisional seniority  list  of  Assistant Engineers  was  prepared  and communicated   to  the  persons  concerned.    The   revised provisional  seniority list is referred hereinafter as  1979 provisional  seniority list.  It is on receipt of  the  said seniority  list that the four petitioners herein  have  come forward  with  the present writ petition.   The  petitioners submit  that the 1979 Rules are arbitrary, unreasonable  and discriminatory  and  that  they have  been  deliberately  so framed  as  to  prejudice  the  seniority  position  of  the promotees.  They submit that the                                                        146 1972  provisional seniority list was correctly  prepared  in accordance  with  the decision of the Delhi High  Court  and that  the  1979 Rules have been so designed as to  undo  the effect  of the Judgment of this Court and Delhi High  Court. By  virtue of the 1979 seniority Rules, the  promotees  have been  relegated  to  far lower  positions  in  seniority  as compared  to  their position obtaining in  1972  list.   The direct  recruits  on the other hand have  gained  enormously vis-a-vis  the  1972  list.  By  way  of  illustration,  the petitioners  have  cited two instances: One is that  of  Sri R.M.  Agrawal who is a direct  recruit(temporary)  vis-a-vis Shri  A.N.  Kapoor,  a promotee.  In  the  1972  list  their position  was 1033 and 207 respectively whereas in the  1979 seniority  list their position is 623 and 624  respectively. In  other  words, whereas a direct recruit  (temporary)  has come  up from 1033 to 623, the promotee has gone  down  from 207  to  624.  Another instance cited is that of  Shri  G.S. Mittal,   direct  recruit  (temporary)  vis-a-vis  Shri   S. Doraiswamy, promotee.  In the 1972 list, their position  was 1094  and  236  respectively which has become  691  and  692 respectively  in the 1979 list.  Inasmuch as this  situation has  been  brought about by virtue of the  1979  Rules,  the petitioners’ main attach is directed against the said rules, particularly  insofar  as  they provide  that  seniority  of Assistant  Engineers shall be determined with  reference  to and  shall  depend  upon their date  of  confirmation.   The petitioners  say that seniority does not and should not be  made to depend upon the date of confirmation.  The reliefs sought for  in  the writ petition are (a) to strike down  the  1979 rules  (b) to quash the 1979 provisional seniority list  and (c)  to restore the 1972 provisional seniority list.  It  is evident   that  reliefs  (b)  and  (c)  are  more  or   less consequential to relief (a).  The main question before us is the  validity of the 1979 rules and in particular  the  rule which predicates seniority on the date of confirmation.   If the  said rules are found to be good, question  of  quashing the  1979 provisional seniority list or restoring  the  1972 provisional  seniority list does not arise.   Moreover,  the impugned 1979 list is also a provisional list and yet to  be finalised after considering the objections received in  that behalf.  We shall, therefore, have to confine our  attention to the validity of the Rules, rather than the correctness of the provisional seniority list prepared on the basis of  the Rules.      In  the  counter-affidavit filed by  one  Shri  Jagdish Prasad,  Dy.  Director  (Administration) in  the  office  of Director  General  (Works),  C.P.W.D.,  New  Delhi,  it   is submitted  that though the 1972 provisional  seniority  list was prepared on the basis of the judgment of the Delhi  High Court, the



                                                      147 matter was thoroughly re-examined after the decision of this Court  in Jagmal Singh and the 1979 Rules were issued  after consulting  the Law Department and keeping in view  all  the relevant  facts  and  circumstances  of  the  case.   It  is submitted   that  the  judgment  of  this  court   aforesaid impliedly   concedes  the  existence  of  a  nexus   between confirmation  and seniority.  The Rules are  perfectly  just and  valid.  The 1972 seniority list, it is  submitted,  was also a provisional one and before it could be finalised, the 1979 Rules were promulgated by the President of India,  with retrospective  effect from 1954, which Rules prescribed  the mode  of determining the seniority of  Assistant  Engineers. Accordingly, a new revised seniority list was prepared.   It is submitted in para 20 "that the appointees under Rule 3(b) have been selected for appointment by the same  Departmental Promotion Committee which have considered  the  question  of promotion  of  officers as Assistant  Engineers  under  Rule 3(c).  By clubbing them together the persons appointed under Rule  3(b)  are not at a disadvantageous  position.   Direct recruits  who  have  come  against  permanent  posts  are  a distinct  group."   It  is also  submitted  that  "both  the temporary  appointments under Rule 3(a) and promotees  under Rule  3(b) and (c) have been treated alike in the  Rules  by giving them 1:1 ratio."  Another relevant statement made  in the  counter-affidavit is that "the cadre consists  of  both permanent and temporary officers."  It is submitted that the persons  appointed against the permanent posts have a  prior claim   for  confirmation  over  those   appointed   against temporary posts.      It  was brought to our notice that after the filing  of the  writ  petition, the 1979 Rules  have  been  extensively amended in the year 1982 with retrospective effect from 21st May,  1954 and another fresh provisional seniority list  has been prepared and communicated on basis of the 1979 Rules as amended  1982.   For  a full and complete  disposal  of  the dispute, we thought it necessary to take notice of the  1982 Amendments  and  the  revised  provisional  seniority   list prepared  on  that basis.  Actually  these  amendments  were brought to our notice only in the written submissions, which were  filed after the close of arguments.  In this  view  of the matter, we directed the matter to be posted for  further hearing,  on  which occasion, the  counsel  for  petitioners brought to our notice not only the 1982 Amendments but  also the  1976 and 1978 Amendments referred to hereinbefore.   We have taken notice of all these Amendments in the interest of justice and with a view to do effective justice between  the parties.  (The only respondents to the writ petition are the Union of India, Director                                                        148 General  of Works and U.P.S.C. No other group or any of  its members are impleaded).      The  reason  for promulgating the  1982  Amendments  is stated  in  the  explanatory  Memorandum  accompanying   the Amendments.  It reads:          "In the Central Public Works Department,  Assistant          Engineers  (Central Engineering Service) Group  ‘B’          (Confirmation and Seniority) Rules, 1979, which had          been given retrospective effect from the 21st  May,          1954,   the  definitions  of  Assistant   Engineers          appointed by different methods had not been given.          This   amendment  has  necessarily  to   be   given          retrospective  effect  from the same  date  as  the          original  rules.   In the Civil Appeal  No.1260  of          1973 - Shri Jagmal Singh Yadav v, Ramayyah & Others



        -  the Superme Court had also observed  that  there          was  no impediment in the way of the Government  to          make  appropriate  rules  regarding  conditions  of          service,    even   retrospectively    subject    to          constitutionality  and keeping in view justice  and          fair play to all concerned.          2.   The  Central  Engineering  Service  Class   II          Recruitment   Rules  and  the  Central   Electrical          Engineering Service Class II, Recruitment Rules, do          not  contain the principles for  determinating  the          seniority  of  officers appointed to the  grade  of          Assistant   Engineers  through  different   methods          except Direct Recruitment.  No special orders  were          also  issued by Government in the past laying  down          any  such  principles.   Therefore,  the   officers          appointed  to  these  services  are  deemed  to  be          governed  by  the general principles  of  seniority          issued  by  the Ministry of Home Affairs  in  their          office memorandum No.30/44/48-Apptt. dated the 22nd          June,  1949  and  No.9/11/55-RPS  dated  the   22nd          December,  1959  respectively,  according  as    to          whether they were appointed to the service prior to          the  22nd December, 1959 or on or after that  date.          The  present amendment seeks to  incorporate  these          principles, to the extent possible and practicable,          in  the Central Public Works Department,  Assistant          Engineers (Central Engineering Service and  Central          Electrical Engineering (Central Engineering Service          and  Central Electrical Engineering Service)  Group          ‘B’ (Confirmation and Seniority) Rules, 1979, since          the principles have to be applied for deter-                                                        149          mining  the seniority of officers appointed to  the          service in the past also, these have necessarily to          be given retrospective effect from the date of  the          Constitution  of the service, viz., the  21st  May,          1954.    The  proposed  amendment,   according   to          Government will be equitable, fair and just to  all          groups  of  Assistant   Engineers  in  the  Central          Public Works Department."      The 1982 Amendments have not only substituted Rules 4 & 5 but also added certain definitions in Rule 2(1).  Further, for  the  reasons set out in the Explanatory  Memorandum,  a cut-off  date  - if it can be so described for the  sake  of convenience  -  is prescribed. It is  22nd  December,  1959. Appointments  made prior to this date and those  made  after this  date are dealt with on different footing.   After  the substitution  of Rules 4 and 5, Rule 4 deals with  seniority while  Rule 5 deals with confirmations, whereas  before  the 1982  Amendments, Rule 4 dealt with confirmation and Rule  5 with  seniority.   The definitions introduced in  Rule  2(1) which  are  relevant  for the present  purposes  -  read  as follows:          "(c)   Assistant   Engineers   recruited    against          permanent  posts" means those  Assistant  Engineers          who have been directly recruited through the  Union          Public  Service Commission against permanent  posts          of  Assistant Engineers in accordance  with  clause          (a)  of  rule 3 read with Part III of  the  Service          Rules;          (d)   "Assistant   Engineers   recruited    against          temporary  posts" means those  Assistant  Engineers          who have been directly recruited through the  Union          Public  Service Commission against temporary  posts          of Assistant Engineers in the Central Public  Works



        Department in accordance with clause (a) of rule  3          read with Part III of the Service Rules;          (e)  "Assistant Engineers promoted from  the  lower          ranks"  means  those  Assistant  Engineers  whether          graduates or Diploma holders; promoted or  selected          from  the rank of Section Officers to the grade  of          Assistant   Engineers   by   a   duly   constituted          Departmental Promotion Committee in accordance with          either  clause (b) or rule 3 read with Part  IV  or          clause  (c)  of  rule 3 read with  Part  V  of  the          Service  Rules  as they existed  before  they  were          amended  by  GSR  Nos. 418 and 419  dated  the  8th          March, 1978."                                                        150          Rule 4 and 5 as substituted in 1982 read thus:          "4. Seniority          (i) Notwithstanding anything else contained in  the          Service Rules, the seniority of the members of  the          service  appointed by whichever method,  or  before          the  21st December, 1959 shall be  determined  with          reference  to  the  date of  their  appointment  as          Assistant Engineers, irrespective of whatever  they          have  been confirmed in the grade or not  and  they          shall rank en bloc senior to those appointed on  or          after the 22nd December, 1959.          Note: For the purpose of this sub-rule, the date of          appointment  of  the direct recruits of  any  batch          appointed  on or after the 21st May, 1954 shall  be          deemed to be earliest date on which any person from          that batch joined in the service. (2) Subject to the provisions of sub-rule (4), the seniority of the members of the service appointed by whichever method, on  or after the 22nd December, 1959 shall be determined  in the order of their confirmation under Rule 5:      Provided  that  their  inter  se  seniority  shall   be determined by the order of merit in which they are  selected for such appointment:      Provided further that persons appointed as a result  of earlier selection shall rank senior to those appointed as  a result of subsequent selection. (3)  As  from the commencement of  the  Central  Engineering Service,  Class II, Recruitment (Amendment) Rules, 1976  and the  Central  Electrical  Engineering  Service,  Class   II, Recruitment (Amendment) Rules, 1976, the relative  seniority of promotee Assistant Engineers under clause (i) and (ii) of rule 24 of the Service Rules shall be regulated according to the rotation of vacancies based on the quotas prescribed for such  promotions beginning with a promotee under clause  (i) of the said rule. (4)   The relative seniority of the members of  the  service appointed,  by whichever method, shall follow the  following order.   Persons falling in each later category  shall  rank junior to persons falling in the earlier category:                                                        151          (i)  Assistant  Engineers  appointed  by  whichever          method on or before the 21st day of December, 1959;          (ii) Assistant Engineers appointed on or after  the          22nd  day of December, 1959, against the  permanent          vacancies,  in any particular post,  in  accordance          with Part III of the Service Rules, and          confirmed  in  accordance with sub-clause  (ii)  of          clause (b) of rule 5 in that year.          (iii) Assistant Engineers appointed on or after the          22nd  day  of December, 1959 and confirmed  in  any          particular  year  after  the  confirmation  of  the



        Assistant  Engineers referred to in clause (ii)  of          this  sub-rule,  in  the manner and  in  the  order          specified in sub-clause (iii) of clause (b) of sub-          rule (2) of rule 5, in that year.      Confirmation:          (1)   To   be  eligible  to   be   considered   for          confirmation  an Assistant Engineer  appointed,  by          whichever method, shall have;          (a)    completed    the   period    of    probation          satisfactorily and                (b)  passed such tests as may  be  prescribed          from  time  to  time by government  by  general  or          special orders.          (2) Notwithstanding anything else contained in  the          Service  Rules,  but subject to the  provisions  of          sub-clause (1) above, the confirmation of Assistant          Engineers  in  the service shall  be  regulated  in          accordance   with   the   provisions    hereinafter          contained, namely:-            (a)   The   Assistant  Engineers   appointed   by            whichever  method, on or before the 21st  day  of            December, 1959 but not confirmed before that date            shall   be  confirmed  in  the  order  of   their            seniority, subject to their being found fit under            sub-rule (1).            (b)  Confirmation,  in  the  grade  of  Assistant            Engineers who                                                        152            were  appointed  on or after the  22nd  December,            1959  shall  be  made in  the  following  manner,            namely:-            (i)  the number of permanent vacancies  available            in  each  year shall be determined in  the  first            instance.            (ii)   Assistant  Engineers   recruited   against            permanent  posts in a particular year,  who  have            completed  the  period  of  probation,  shall  be            confirmed  en  bloc against  permanent  vacancies            available in that year, in order of the inter  se            seniority of such officers and, where the  number            of   Assistant  Engineers  so  appointed   in   a            particular  year exceeds the number of  permanent            posts  available  in that  year,  such  Assistant            Engineers     shall    be    confirmed    against            supernumeratory posts which shall be created  for            that purpose.            (iii)  After  the  Assistant  Engineers  of   the            category  mentioned in sub-clause (ii) have  been            confirmed  in  a year,  the  Assistant  Engineers            recruited   against  temporary  posts   and   the            Assistant Engineers promoted from lower ranks  on            temporary basis, who have completed the period of            probation,  shall be confirmed subject  to  their            being  otherwise  found  fit,  against  permanent            vacancies  available in that year  by  continuous            interspersing  of  one promotee  and  one  direct            recruit appointed against temporary post till the            permanent vacancies of that year are exhausted.          Provided that if, in a particular year, any of  the          categories  mentioned in sub-clause  (iii)  nemely,          the  promotees  or  the  direct  recruits   against          temporary  posts, gets exhausted in  following  the          procedure set out in this sub-clause, the remaining          permanent  vacancies shall en bloc go to the  group          having unconfirmed Assistant Engineers:



        Provided further that if, in a particular year, the          number  of  permanent vacancies is  less  than  the          number  of  Assistant Engineers in  the  categories          mentioned   in  sub-clause  (iii),  the   Assistant          Engineers not confirmed in that year shall be con-                                                        153          sidered   for   confirmation   against    permanent          vacancies   of  the  subsequent  year,   by   again          following  the principle of  inter-spersing,  after          the direct recruits against permanent posts of that          year  have  first  been  adjusted  in  the   manner          indicated in sub-clause (ii).  The direct  recruits          or,  as  the case may be, the  promotees  shall  be          selected for such confirmation under this clause in          the  order of their seniority in  their  respective          seniority lists."      It  is  necessary  to notice the  effect  of  the  1982 amendments.   As  would  be  evident  from  the  definitions "Assistant  Engineers  recruited against  permanent  posts", are  those  appointed  under Rule 3(a)  of  the  1954  Rules against  permanent  vacancies,  while  "Assistant  Engineers recruited  against  temporary posts" means  those  appointed under   Rule  3(a)  against  temporary  posts.    "Assistant Engineers   promoted  from  the  lower  ranks",  are   those appointed/promoted  under unamended clauses (b) and  (c)  of Rule 3.  More important, seniority now depends upon the date of confirmation, which is determined in accordance with Rule 5 of 1979/1982 Rules.  If we read Rule 5 closely, it becomes clear  that of the permanent vacancies available in a  year, the  direct recruits against permanent vacancies are  to  be accommadated en bloc in the first instance.  And  thereafter if  any  vacancies  are left, the  direct  recruits  against temporary  posts and promotees (which category now  includes Assistant Engineers recruited and promoted under Clauses (b) and (c) - unamended - of Rule 3 of the 1954 Rules) are to be accommodately  alternately.  This process is to be  repeated each  year.  Then again, while Rule 5 refers  to  "Assistant Engineers recruited against permanent posts" and  "Assistant Engineers  recruited against temporary posts", it  does  not speak  of "Assistant Engineers promoted from  lower  ranks". It speaks of "Assistant Engineers promoted from lower  ranks on  temporary  basis".  What does this mean?  Does  it  mean that   all  promotee  engineers  (including  those   ‘direct recruits’  appointed under unamended clause (b) of  Rule  3) were  appointed/promoted only against temporary posts ?  Was no  such  person appointed or promoted against  a  permanent post?   Were  all  permanent posts  meant  only  for  direct recruits?  Rules  do  not  say  so,  nor  does  the  counter affidavit  assert so.  (If this were so, the seniority  list prepared in 1972 would not have been prepared in the  manner it was prepared.)  If on the other hand, these persons  were also  appointed and promoted against some of  the  permanent vacancies,  then  where  do  they fit  in  in  the  sequence prescribed by Rule 5?  There is no explanation,                                                        154 nor  any appartent reason, why the direct  recruits  against permanent  posts are treated as a superior category  to  all the  promotees en bloc. Not a single promotee - not even  an Assistant  Engineer recruited under unamended clause (b)  of Rule 3 of the 1954 Rules - is ranked on par with them.  They are placed on par with Assistant recruited against temporary posts.   This  is  totally at variance with  the  basis  and principle  upon which the 1972 seniority list  was  prepared pursuant  to  the Judgment of Delhi High Court -  which  was later affirmed by this Court.  There is yet another  glaring



feature.   So far as the appointments/promotions made  prior to December 22, 1959 are concerned, they are to be confirmed in  the  order  of  their appointment  -  which  means  that seniority  is determined on the basis of  their  appointment irrespective of the mode in which he is appointed.  But when it comes to the period subsequent to December 22, 1959,  the rule  is  altogether  different.   The  Assistant  Engineers appointed/promoted on or after December 22, 1959 are divided into  three categories mentioned above.  There is no  reason or basis for the date 22.12.1959 except that it is the  date on  which  the subsequent Memorandum of  the  Home  Ministry (said  to contain the principles regarding determination  of seniority)  was issued.  (We have not been shown a  copy  of the  said Memorandum.)  It is not a mere case  of  different principle  being  adopted subsequent to  22.12.1959,  it  is inherent  vice  of  discrimination implicit in  it  that  is hurting  the promotees (as defined in amended Rule  3(b)  of the 1954 Rules).      The  petitioners  say  that on the basis  of  the  1982 amendments, a fresh revised provisional seniority  list  has been  prepared and communicated to all  concerned,  inviting their  objections,  if any.  They say that in  this  revised list they have been further sent down to far lower positions than in the 1979 list.  The respondents, on the hand, submit that  the  amendments are perfectly just and  equitable  and that  no legitimate grievance can be made against the  Rules or the revised provisional seniority list of 1982.      Now  it  is true that Rules made under the  Proviso  to Article  309  of  the  Constitution  being  legislative   in character  cannot  be struck down merely because  the  Court thinks  that they are unreasonable, - and that they  can  be struck  down  only on the grounds upon which  a  legislative measure  can be struck down.  (Vide B.S. Vadera v. Union  of India,  (1969) S.C. 118 and B.S. Yadav v. State of  Haryana, (1981)  S.C. 561, we are yet of the opinion that Rule  4  of 1979 Rules (as amended in 1982) in so far as it                                                        155 predicates  seniority  on the date of confirmation  -  which confirmation is directed to be made on a wholly unequal  and discriminatory basis - is violative of the equal opportunity clause  enshrined  in Article 16 of the  Constitution.   The cadre,  it  is  admitted  consists  of  both  permanent  and temporary  members.   The Rules do not  say  that  promotees shall not be appointed against permanent posts or that  they shall be appointed only against temporary posts.  It is true that  generally  direct  recruitment is  made  only  against permanent  vacancies/posts  whereas promotions may  be  made both against permanent as well as temporary vacancies/posts. But  in this service, it is clear from the Rules  themselves that  even the direct recruitment is made against  temporary posts.   In short, there is no distinction between the  four erstwhile  categories mentioned in unamended Rule  3.   They could  be  appointed  both  against  permanent  as  well  as temporary   posts.    If  so,  there  appears   to   be   no justification for treating all the appointees under  clauses (b) and (c) of Rule 3, en bloc, on par with direct  recruits against  temporary posts (as has been done by Rules 4 and  5 of   1979/1982  Rules)  which  suggests  as  if   all   such appointments were made, at all points of time, only  against temporary posts.  At the cost of repetition, we may  mention that  those appointed under unamended clause (b) or  Rule  3 were expressly referred to as direct appointees and yet they are now converted into promotees en bloc and downgraded vis- a-vis direct recruits under unamended clause (a) of Rule  3. All this, in our opinion, is discriminatory and violative of



Articles 14 and 16(1).  There were four channels/sources  of appointment.  Direct recruitment was one of them - unamended clause (a).  Unamended clause (b) provided for another  type of  direct appointment while unamended clause  (c)  provided for  promotion.  True, there was no quota fixed  as  between them  as  held by this Court and Delhi High  Court  but  the Rules  nowhere  stated  that  appointment  under   unamended clauses  (b)  and (c) shall be made only  against  temporary posts.   All  the four sources were  equal  -  quality-wise. Neither was superior to the other.  In these  circumstances, bringing  in new concepts of "Assistant Engineers  recruited against permanent posts", and "Assistant Engineers  promoted from the lower ranks" through the 1979 Rules (as amended  by 1982 Rules) and treating the latter category unfavourably on that  basis  (vide Rules 4 and 5 of 1979/1982  Rules)  is  a clear  case of hostile discrimination.  In this context,  if we recall the principles enunciated by the Delhi High  Court and  this  court in the earlier writ  petition  referred  to hereinbefore, the intention of the Rule-making authority  to undo  the  effect  of  the  said  Judgments,  to  the  grave prejudice of the Assistant Engineers appointed under clauses (b) and (c) of unamended Rule 3 becomes crystal clear.   The entire course of                                                        156  amendments and new Rules appears to be designed to undo the effect of the said Judgment with retrospective effect.   Not only  the classification has no basis in the Rules -  or  in the factual situation - it is unreasonable and unjust; it is also  unrelated to the object - the object being  efficiency of administration.      In S.B. Patwardhan and Anr. v. State of Maharashtra and Ors. A.I.R. 1977 S.C. 2051, this court observed:-          "Instead  of  adopting an  intelligible  diffentia,          Rule  8(iii) leaves seniority to be  determined  on          the sole touchstone of confirmation which seems  to          us   indefensible.  Confirmation  is  one  of   the          inglorious  uncertainties  of  Government   service          depending   neither on efficiency of the  incumbent          nor  on the availability of substantive  vacancies.          A  glaring instance widely known in a part  of  our          country  is  of  a  distinguished  member  of   the          judiciary   who was confirmed as a  District  Judge          years after he was confirmed as a Judge of the High          Court.  It is on the record of these writ petitions          that   officiating   Deputy  Engineers   were   not          confirmed  even though substantive  vacancies  were          available in which they could have been  confirmed.          It shows that confirmation does not have to conform          to any set rules and whether an employee should  be          confirmed  or  not depends on the  sweet  will  and          pleasure of the Government.          Rule   8(ii)  in  the  instant  case   adopts   the          seniority-cum-merit   test   for   preparing    the          statewise Select List of seniority.  And yet Clause          (III)  rejects the test of merit  altogether.   The          vice of that clause is that it leaves the  valuable          right of seniority to depend upon the mere accident          of  confirmation.  That, under Articles 14  and  16          of the Constitution, is impermissible and therefore          we   must   strike  down  Rule  8(iii)   as   being          unconstitutional."      The   petitioners   also  rely   upon   the   following observations from the same judgment:          "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.   And          yet clause (iii) of Rule 8 provides                                                        157          that  probationers recruited during any year  shall          in  a  bunch  be treated  as  senior  to  promotees          confirmed  in that year.  The plain  arithmetic  of          this formula is that a direct recruit appointed  on          probation, say in 1966, is to be regarded as senior          to  a promotee who was appointed as an  officiating          Deputy Engineer, say in 1956, but was confirmed  in          1966 after continuous officiation till then."      True  it  is  that  in  the  present  case,  a  formula contained  in Rule 5 of 1979 Rules (as amended in  1982)  is devised  to  govern  the  order  of  confirmation,  but   as demonstrated   above,  this  very  rule  is   discriminatory inasmuch  as  it  seeks to treat equals  unequally,  to  the prejudice of what is now compendiously called, the class  of "promotees".      For  the above reasons, it must be held that Rule 4  of the  Central  Public Works Department  Assistant   Engineers (Central   Engineering   Service  and   Central   Electrical Engineering Service) Group ‘B’ (Confirmation and  Seniority) Rules,  1979  (as  amended  by  the  Central  Public   Works Department, Assistant Engineers (Central Engineering Service and  Central  Electrical  Engineering  Service)  Group   ‘B’ (confirmation and Seniority) Amendment Rules, 1982), insofar as  it  predicates  the  seniority  of  Assistant  Engineers (appointed  on  or after December 22, 1959) on the  date  of their  confirmation, is violative of the fundamental  rights guaranteed  to the petitioners (and other  similarly  placed Assistant  Engineers)  by  Articles  14  and  16(1)  of  the Constitution of India and accordingly held to be inoperative and void.      Having regard to the period for which this dispute  has been pending and in the facts and circumstances of this case and  for the reasons recorded hereinbefore, we  direct  that the  seniority of Assistant Engineers appointed on or  after December 22, 1959 shall be determined on the same basis  and in  the  same  manner as it is  determined  in the  case  of Assistant Engineers appointed prior to the said date.   This direction is made keeping in view the desirability of giving a quietus to this dispute at least now.      The writ petition is, accordingly, allowed in the above terms. No order as to costs. T.N.A.                                      Petition allowed.                                                        158