KATYANI DAYAL AND ORS.

UNION OF INDIA AND ORS.

March 26, 1981)

(R. S. SARKARIA, R. S. PATHAK AND 0. CHIN1'/.APPA REDDY, JJ.]

' Temporary Assistanl Engineers, gazetted -service recruited by Railway Board -Neither cla.ssi/ied as Class I or Class 11 but given the junior scale of pry of Jndian Service of Engineers Class I, and eligible to be considered for absorption

in permanent vacancies as per quota fixed per year-Whether belong to the cadre of Indian Service of Engineers-Whether treating them purely temporary:

offends Articles 14 and 16 of the Constitution-Constitution of 'India Arlidu

53, 73(1) (a) and 109-lndian Railway Establishment Ru/ea 102(3) (13), UIS,

106-109, 112, 116, 118(i), 125, 129, 130-133, 140 and RJJ/e 20Q3(3), (22), (211),

(30), (31).

Several assignments such as the construction of major bridges, new Jines, doubling of and electrification of existing lines etc. were taken up the Engineer ..

ing Department of the Indian Rail\\ays and to carry out these works, a number _ of temporary posts of Class I (Indian Railway Service of Engineers) and Clas!

II engineers v.ere created. It was not thought possible to meet additional personnel requirements from eXisting sources, i.e. direct recruitment to Class I by competitive examination and promotion to class II from class Ill Instead, under a special scheme' the various writ petitioners were appointed at various times bet~ ween 1955 and 1964 as temporary Assistant Engineers by the Railway Board.

Everyone of them was told that the appointment, would be on a ten1porary basis, that the ost to which they were appointed would be neither in Class I nor in Class II service though they were eligible, on completion of three year's service, to be considered along with other temporary Assistant Engineers for absorption

1n Class I (Junior Seal~) _against vaaa11cies ear-marked from time to time for G such absorption in the Indian Railway Service of Engineers cadre upto a maximum of six pe~ year, and that in the event of their being selected in Class I Service their seniority would count from the date of the permanent appointment to Class I service. They were required to execute service agreements "as applicable to temporary officers". The petitioners accepted the terms offered to them and joined duty in the post to which they were appointed. The petitioners , aJso executed agreements in a standard form known as "Agreement for Tempol'lll'Y Assistant Officers of the Indian Railways~.

A Though in their orders of lapointment as temporary Assistant Engineers tho petitioners and others were told that six of them would be absorbed into tho.

Indian Railway Service of Engineers Class I every year, the quota was increaa~ ~"""" ed to eight per year in 1957 and fifteen per year in 1961. In 1960, the quota. was fixed at 60 per cent of the actual intake of probationers from the CESetc.. ,. examinations. Again in 1975 the quota was increased to 25 per year. The B net result was that all but a 107 temporary Assistant Engineers were left UO absorbed by the time of the filing of the writ petitions and they too wercfullllly absorbed in 1979 by a blanket order.

On September 17, 1965, the Railway Board decided that the temporary officers so absorbed ioto the Railway Service of Engineers should be given wcightage in seniority "on the basis of c half the total number of Years of continuous seice in working posts on Ilailways prior to their permanent absorption into Class I, subject to maxirnum weightage of five years."

One of the writ petitioners, Katyani Dayal field a writ petition in the llla habad High Court claiming promotion to the Senfor scale post of District D Officer.

He found his claim on Rule 133(3)(c) of the Railway Establishment Code on the basis that he was an Assistant Officer within the meaning of that expression as then defined by Rule 102(3). The High Court allowed the writ petition and gave a direction to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the post of District Officer as soon as vacancies arose, ignoring the circulars which gave E preference to Class I junior scale officers of four years standing or .more. as.

agaiost temporary Assistan.t Engineers.

An appeal filed by the Railway Admi nistration under the Letters Patent was dismissed by a Division Bench of the High Court. Though. the Division Bench dismissed the appeal on August 1, 1974, the Railway Administration did not implement the judgment but instead on December 12, 1975 amended the Rule 102(3), !33(3)(c) and (f) and F introduced new rule 102(17) so as to expressly exclude temporary Assistan< Officers (newly defined by Rule 102 (7), fromr tho category of Assistant Offi cep and thus make them ineligible for promotion to the senior scale un.der Rule 133(3)(c) and (f).

G The petitioners, therefore, have filed these writ_ petitions in a representaHve capacity purporting to represent all temporary Assistant Engineers appoi!lted on the recommendation of the Union Public ServiCe Commission, claiming that, in law they could only be and were appoioted to tho Indian Railway Service of Engioeers Oass I right from the beginning and that the Railway Board was \vrong in_ treating them as belonging to neither Class I nor aass H II. They claimed that they were appointed to temporary posts io the cadre

0£ Indian Railway Service of Engioeers aass I and that their seniority had to be reckoned on the basis of their length of continuous service, though they

·~

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KATYANI DAYAL V. UNION Ul

conceded that in any given year those appointed on the asis of th~ results of A .the competitive examination might. be placed above those appointed on the basis of the selection by the Unio?- Public Service Commission.

Dismissing the petitions the Court

HELD: (1) Arts. 53, 73(1)(a) and 309, make it clear that the Pmi- 11ent, acting directly or through officers Subordinate to him is free to constitute a service (with as many cadres as he chooses)' to create posts without -constituting service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again, if he

"SO chooses he may not make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make 9r not to mlake appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled.

But, if there is an Act of Parliament or a

ru1e:: under the proviso to Article 309 on the matter, the executive power under Articles 53 and 73, may not be exercised in a manner inconsistent with or contrary to •uch Act or Tule. [162DF]

B. N. Nagarajan v. State of Mysore, [1966] SCR 682 @ 686; State of KerGla v. M. K. Krishnan Nair and ors., [1978] 2 S.C.R. 864 at 874; referred to.

(2) The previous existence of the Indian Railway Service of Engineers -and the rules made for recruitment to that service do not bar the constitution

of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers.

Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various departments of Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by 1he grant of Presidential sanction for the posts in November 1956, and by the President further specifying the Railway Board as the authority competent to make appoiniment of such temporary Assistant Officers.

The posts of Temporary Assistant Officers were thus created and appointments made, under '\'alid authority and outside the existing cadres of the Indian Railway Service

<>f Engineers. The letters of ''indent", the advertisements, the letters of appointment nnd the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commis- 'Sion were to be a source of recruitment to the Indian Railway Service of Engineers Class I. If Temporary Assistant Officers were to be a source of <ecruitment to the Indian Railway Service of Engineers Class, no temporary Assistant Officer could possibly be under any misapprehension tblat he was

A appointed to the ltl, d, iaa Railwy Service of Ellgineers Class I or could claim t.bllt Ile W!IS appoin~ to such service. [162G-H, 163G-H, 164A]

The petitioners cannot be conside.red to have been appointed under rule- 130 ( d) of the Indian Railway Establishment Code which provides for occll.- sional admission of other qualified persons on the recommendation of the Union Public Service Coon merely because they were selected for appointnient by the Union Public Service Commission, their scale of pay was. the same as that of the Class I Junior ScaJe Officers of the Indian Riailway Service of Engineers and their duties were the same. [164A-C]

(3) It is no doubt true that a cadre may consist of permanent vacancies. in permanent as well as temporary posts borne on the dldre. But it does. not follow that appointments stated to be made to posts outside the very service and therefore necessarily otside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so CORtimre.

[164 F-G]

The Annual Administrative Reports merely refer to appointments, teinJ:Klmry as well as permanent, made in the gazetted service by direct recruitme.nt.

Gazetted Railway services must include both the Indian Railway Service of Engineers and the Gazetted Railway Service constituted by the temporary Assisfunt Officers. Therefore, by merely taking into account the number Ji: of Temporary Assistant Officers for the purpose of calculating the total nmnber of persons appointed to Gazetted Railway Service it cannot conceivably be said that Temporary Assistant Officers were appointed tocadre posts in tJle Indian Railway Service of Engineers. Even the classified lists of Gazett1d offic_ers do not indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers. On the other hand under the column "Date of appointment to Class" no entry is made against the names of any of the Temporary Assistant Officers who had not yet been absorbed into the Indian Railway Service of Engineers. [165 B-C, D-E]

If posts were initially created and sanctioned, the subsequent coatinuao.ceof the posts indefinitely would not make persons appointed to the posts members. of the Railway Service, namely, the Indian Railway Service of Engineers Class.

I. [165 F-G]

( 4) The note below Rule 106 of the Railway Establishment Code merdJ' states an existing &ct known to all. concerned, namely, that posts of Tempo· rary Assistant Officers in gazetted railway service who were not to be classi· fied 'either as Class I or as Class IT had been sanctioned by the Presidenl<

KATYANI llo\YAL v. UNION 143

who had designated the Railway Board as the authority competent to make A appointments to those posts. With or wilhoot !he note, the Temporary Assistant Officers would still not be classified either as Class I or Class II.

Their classification outside Class I and Class II was not dependant on the note but on the Presidential sanction in .regard to the creation of the posts. [166 A-Bl

(5) Temporary Assistant Officers are not Assistaot Officers within the

meaning of that expression in the Indian Railway Establispment Code. The

CJC.pression "Temporary Assistant Officer", which was not previously_ defined in

the Railway Establishment Code, was sought to be defined by new clause 17 of R. 102 to mean ''I> Gazetted Railway Servaot drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as

Class II Officer". The expression Assistant Officer was redefined so as nut

to include a Temporary Assistant Officer who was not 'classified' either as Oass I or as Class II.

[166 C-D]

The amendments do not have any effect one way or the other on the status D of the Temporary Assist3J1t Officers.

What was always well known to the

Temporary Assistant Officers and the Railway Board and whlat was the inevitable result of the Presidential sanction for the creatjon of posts which were not to be classified either as Cass I or Class II, was made explicit in the Indian Railwny Establishment Code also by the introduction .of these amendments. This became necessary because in the Writ Petition filed by Katyani Dayal, the Allahabad High Court, while appearing to hold ffiat Temporary Assistant Officers belonged neither to Class I nor to Class II service, held that they came within the then existing definition of 'Assistant Officer' so as to entitle them for promotion under r. 133 of the Indian Railway Establishment Code. [166E-G]

The definition of Assistant Officer was not to be read in isolation but should have been read conjunctively with Rules 105, 106 and 108. A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway

Establishment Code, Railway services were to be classified into Class I, Gass

II, Class rn, Class IV and workshop sWf.

Rule 106 specified the appointments and categories falling under the services mentioned in Rule 105. Rule 108 required the Railway Board to fix the •trength of the Railway Services, aaso

I and II. There could therefore, be no question of an officer not falling witBin the class, C>tegory or cadres specified in rules 105, 106 and 108 claiming to

be an 'Assistant Officer' within the meaning of that expressioJl. A person re- H oorited to the pool of Temporary Assistant Officer not classified as Qass I or aa.. II Officer could not claim to belong to the Class, categ0ry or cadre speci:fied in Rules 105, 106 and 108 and was, therefore, not an A.s.!itant Officer within the meaning of that expression even before the 1975 amendment.

[167 D-F] ( 6) Tuer~ are and there can be no absolutes when the Court considers claims to justice on complaints of inequality.

The Marxian of a classless society, ful\vever laudable that may be, is evidently not what is sought to be achieved by Arts. 14 and 16 of the Constitution. The goal is a limited one.

It is equality among comparables. A necegsary, but not necessarily 1::ynical,

implication of equality among comparables is the permissibility of reasonable classification, havin,& nexus with the object to be achieved. If two :'ervices started and continued dissimilarly, though they apparently discharged similar C duties, they were not comparable services so as to furnish a basis for tbe claim to equality.

But if in the same service there were two sources of recruitment to the same service, a classification based solely on source of recruitw!nt was not permissible. [176 E-G]

State of Puniab v. Jogindtr Singh, [1963] Supp. 2 SCR 169, 191, 192;

D Roshan Lal 'fandon v. Union of India, [1968] 1 SCR 185 and Mervyn Coutindo & Ors. v. Collector of Customs, Bombay an!J Ors., [1966] 3 SCR 600;

referred to.

(7) Those who were appointed to ex-cadre posts outside the rules and .\./

\Vhose tenure was therefore precarious could not claim to be treated on the

same footing as those who were appointed strictly in accordance vith the

rules and posts borne on the cadre of the service.

[177 F-G]

lf. S. V crma & Ors. v. Secretary, Ministry of Shipping and Transpor.t & Ors.

[1979] 4 sec 415 @ 427, 428; referred to.

(8) The classification of Temporary Assistant Office!s separately from the Indian Railway Service of Engineers Class I is neither discriminatory nor is violative of Articles 14 and 16 of the Constituttion for the reason that it bad no nexus to the object to be achieved namely efficiency of service.

[167 G-H]

_ The service comprising the Temporary Assistant Officers and the Indian --( Railway Service of Engineers Class I started separately and never became one.

The objects of their recruitment were different, the methods of recruitment were dissimilar and the appointing authority was not the same. The training that was imparted was also unlike. The very tenure of the Temporary Assistant

 II Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Services of Engineers Class I.. These distinctivu features marked out the Temporary Asistant Officers as a Qass apart from the Indian

KATYANI DAYAL V. UNION 145

.Railway Service of Engineers Class I and therefore there w.. no question A

>-' -Of entitlement of equal rights with the latter.

Of course, once they were .absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter. Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers, as promised in their letters of appointment. No doubt these

officers merite<l something more than the 'long wait' at the portals of the B Indian Railway Service of Engineers. The Railway Board however, l>ppeara to have 'tried to make the long wait a little less tedious by giving them weiaht- .age of half of their length of service as Temporary Assistant Officers, subjec• .to maximum of five years [ 177 D-G]

Equally important, is . the fundamental qualitative difference, linked with the method of recruitment. True, the minimum educationa! gualification is the same. But, those who are recruited directly to the Indian Railway Service

of Engineers Clla-ss I are subjected to stiff and competative, written and personality tests. Only the very best can aspire to come out successful. The

Temporary Assistant Officers were not subjected either to a ¥iTitten or to a D

~ personality test but were selected on the basis of an interview by the Union

Public Service Commission. In addition to the minimum educational qualification, three years' experience as a Civil Engineer was alo prescribed. Thu! while brilliance 'va\l the beacon light which beckoned those aspiring to beCome

members of the Indian Railway Service of Engineers Class I, it was replaced

.!by experience in the case of those wanting to be Temporary Assistant Officers.

E Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case -0f Temporary Assistant Officers was the Railway Board, no doubt, pursuant

to the authority given by the President. Different courses of train!ng wre prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers. For the Indian Railway Service of Engineers the training is an F intensive and comprehensive one designed to equip them for higher posts in ·the Department too; while the training for Temporary Assistant Engineers was a brief six months' training intended merely to equip them for carrying out

-1he specific jobs. In the matter of terms and conditions_ of service, while

the provisions of the Iµdian Railway Establishment Cbde are fully applicable to the Indian Railway Service of Engineers Class I, those provisions are appli- -cable to 'Temporary Assistant Officers' to the extent there is no specific provision in their letter of appointment and agreement. [169 C-H]

State of Punjab v. Joginder Singh, [!963] Supp. 2 SCR 169, @ 191, 192, ..Ki5hori Mohan/al v. Union of India, A.I.R. 1962 SC 1139, Jammu & Kashmir 8

v. Triloki Nath Klwsa and Ors., (1974] 1 SCR 771 @ 790, 792 Roshan Lal l'andon v. Union of India, [1968] 1 SCR 185; Mervyn C'Jutindo and Ors. v.

U6 SUPREME COURT llEl'O:ll.TS

[1980] 3 S.C.R •.

A Call":fM' of CJISI...,., Bomb•y and Ors., [1966] 3 llCR 600, Mohammad" Su;.t Ali lllld Ors. v. Union' of India and Ors. ete., [1975] 1 SCR 449 @ 481, S. II. Potw"""lwl aNI Ors. etc. v. State of Maha, tJ!Jhtra and Ors. [1977] 3 SCR 775; A. K. Subraman v. Union of India, [1975] 2 SCR 979 and M. S. Verma and Ors. v. Secty. Ministry of Shipping & Transport and Ors., [1979] 4 SOC. 415 @ 4!7, 428; discussed.

Ohse:rv.ation :

There is nothing 'doctrinnaire' in the principle of "equal pay for equal work" and "equal status for equa.l pay and equal work".

They are not goals to be~ C liCOffed at. It may be that in the present societal context, the goals may appear to be distant.

But they are goals worthy of attainment and would be achieved in Ille not too distant future. [178 A-BJ

ORIGINAL ! (CIVIL) APPELLATE JURISDICTION : Writ Petition.

B Nos. 147 to 151 of 1976.

(Under Article 32 of the Constitution)

WITH

SPECIAL LEA VE PETITION (CIVIL) No. 7905 OF 1979

E From the Judgment and Order dated 29-8-1978 of the Allahabad'

High,. Court)n. S.A. No. 887 /70.

M. C. JJhandare, Mrs. S. Bhandare and T. Sreedharan for the l Petitioners.

L. N. Sinha, Attorney General, Mr. M. K. Banerjee, Addi. Solicitor- Genera/, R. B. Datar, A. K. Ganguli, R. N. Sachthey and Miss A.

Subhashini for RR. 1 and 2.

F. S. Nariman, Anil B. Dawan, P. H. Parekh, C. B. Singh and' R. Karanjwala for RR 18 & 19.

S. C. GTJpta and Ramesh= Chand for RR 14.

Madan Bhatia and D. Goburdhan for RR 20.

Y.~S. Chitale,, V. M. Tarkunde, and A. N. Karkhanis for RR 28' and 31.

S. D. Gupta in person for impleading RR in WP 147/76.

Girdharee Singh and S. K. Jain for the Intervener.

KATYAM DAYAL v. UNION (Chinnappa Reddy, J.) 147

The Judgment of the Court was delivered by, A.

CHINNAPPA REDDY, J.-Several hundred Railway Engineers who should have been busy elsewhere, building bridges, laying or doubling tracks and so on have found themselves in the corridors of this Court in pursuit of the leaves of career. Quite a contingent was present in Court anxiously watching the proceedings and listening with expect Battention to every word that fell from counsel and judge. One could~ not help wondering whether this multitiered. 'multi-varne' Servicesystem was itself not productive of a career. neurosis, destructive of the very efficiency which is sought to achieve.

2. In this case, as in most other service matters that reach this Court, the question which arise for consideration relate to classification, con1irmation, seniority, promotion etc., questions which appear to agitate the minds of the members of all services. Administrators seeking to find solutions to some of the problems very soon discover that their solutions are no more than illusions and have created other problems. First one party and then another party, all seek the pro

tection of the Court. The Court is no expert administrator. Lacking expertise, lacking the administrator's access to information, there are obvious limitations to what the Court may be. The Court may at best attempt to solve some basic legal issues.' That the Court strives to do without disturbing the administrative equilibrium.

3. The service with which we are concerned in this Case is the Indian Railway Service of Engineers, Class I. While the petitioners claim that they were appointed to this service after selection by the Union Public Service Commission, the respondents allege that the petitioners were appointed as temporary Engineers only, constituting a special class and service by themselves, and were not appointed to the Indian Railway Service of Engineers Class I at all.

4. It appears that from the time of the first Five Year Plan onwards several important assignments such as the construction of major bridges, new lines, doubling of electrification of existing lines etc. were taken up by the Civil Engineering Department of the Indian Railways. It became necessary to create a number of temporary posts of Class I (Indian Railway ervice of Engineers) < nd Class II Engineers to carry

out these works. In 1955 it was estimated that about 2CO additional Engineers would 1:e necesrn1y within the rext two years to deal with It the planning, surveying, estimating and construction of the multitude of the prorosed development works. It was not thought possible to

SUPREME COURT REPO~US

meet the additional personnel requirements from ex1stmg sources, which were direct recruitment to Class I on the basis of the results of a competitive examination and promotion to Class II from Class III.

Though the conversion of some of the temporal)' posts into perma.nent ones might meet part of the requirement, it was thought, recruitment through normal channel to such posts would necessarily have to be spread over a period of years so as to avoid 'bunching of officers within particular age group'. It was, therefore, decided to recruit, in the first instance, fifty temporary Engineers immediately. Their scale of pay was to be the same as that of the Indian Railway Service of Engineers.

The age limit was to be 25 to 35 years so as to attract Engineers with practical experience. The appointments. were to be normally made on the minimum of the time scale but persons with previous experience could be fitted into the scale at a higher stage.

As the posts were to be temporary, it was decided that an incentive should be given to attract suitable candidates by reserving a:firoportiou of the permanent vacancies in the Indian Railway Service of Engineers each year for being filled by such temporary Engineers. Six vacancies in the Indian Railway Service of Engineers were to be so earmarked annually to start with.

The quota could be increased later. On permanent appointment to the Indian Railway Service of Engineers seniority would count from the date of such appointment. Proposals on these lines were conveyed by the Railway Board to the Union Public Service Commission on February 21, 1955 with a request to take steps for the early recruitment of temporary Engineers. A formal requisition in the prescribed form was also sent to the Union Public Service Commission. In thTh form, the post was designated as "Assistant Engineer", the number of posts was mentioned as 50, and, the class of service to which the post belonged was mentioned as "Gazetted Railway Service". Against the heading "whether permanent or temporary", the posts were mentioned as "temporary". Against the column "if the post is temporary, please state : (a) when it was sanctioned; (b) the period for which it has been sanctioned and (c) irrespective of the period of sanction how long it is expected to last and whether it is expected-to be retained on a permanent basis eventually", it was mentioned that the posts would be sanctioned shortly in connection with a number of projects, that the period would be two years in the first instance but was likely to be extended upto five years and that the employment might continue indefinitely but on a temporary basis. It was specified that the candidates would be eligible to be considered tor absorption in permanent vacancies at the rate of six per year. The scale was mentioned as Rs. 350-350-380-380-30-590-E.B.-30-770-40-850, this being the Junior Scale of pay of Indian Railway Service of Engineers Class I. It was

I '

KATYANI DAYAL v. UNION (Chinnappa Reddy, J.) 149

said that higher initial salary was permissible according to experience and qualifications. The academic qualifications were to be the same as for regular recruitment to Indian Railway Service of Engineers.

Against the heading prospects of promotion to higher post it was stated that they might be considered for promotion to senior scale posts in the grade of Rs. 600-40-1000-50/2-1150 according to the exigencies of service. Similar proposals and "indents" for recruitment of temporary officers to six other departments of the Railways were also simultaneously made.

5. Pursuant to the requisition by the Railway Board, the Union Public Service Commission issued an advertisement inviting applications .for "50 posts of Assistant Engineers, Ministry of Railways,

Service Class I (Gazetted), posts temporary for two years in the first instance but likely to continue". The minimum educational qualification was stated to be a Degree in Civil Engineering, but an additional qualification of 'about 3 years experience as a Civil Engineer' was also prescribed. The qualification was relaxable at the discretion of the commision in the case of candidates otherwise well qualified.

It was mentioned in the advertisement that the candidates would be eligible 'for being considered for absorption in permanent vacancies at the rate of six per year' and might be considered 'for promotion to senior grade posts in the scale of Rs. 600-40-1100-50/2-1150 according to the exigencies of service'. It appears that the reference to Class I in the advertisement was considered by the Railway Board to be a mistake. The Railway Board, therefore, addressed a letter dated October 31, 1955 to the Union Public Service Commission pointing out that in their requisition they had indicated "Gazetted Railway Service" as the service to which recruitment was to be made and that it was not intended that it should be either Class I or Class II. It was also mentioned that statements had been made on the floor of the Lok Sabha and Rajya Sabha that the posts were "temporary" and "neither in CTass- -fnor in Class II". The Commission was accordingly requested to issue asuitable correction slip. Thereafter, in the subsequent advertisements""

issued by the Union Public Service Commission there was no reference to Class I. It was merely mentioned that applications were invited for specified number of posts of "Assistant Engineers (Civil), Ministry of Railways, posts temporary but likely to continue".

6. The petitioners in the various Writ Petitions who submitted B their applications in re•ponse to such advertisements, were selected by the Union Public Service Commission, at various times between 1955

15 0 SUPREME COURT !tEPO.., TS

(1980] 3 S.C.R.

and 1964 aa:ui were offered appointments as 'Temporary Assistant Ent\neers' by the Railway Board. Everyone of them was told that the appointment would be on a temporary basis in the scale of Rs. 3 50- 3'°"380-38tJ..30-590-E.B.-30-770-40-850. They were also . expressly oold that the posts to which they were appointed would be neither in CJ:ass I nor in Class II, service though they were eligible, on compleition of three years service, to be considered alongwith other tempo:rary Assistant Engineers for absorption in Class I (Junior Scale) agB, inst vacancies ear-marked from time to time for the absorption of temporary Assistant Lngineers in the Indian Railway Service of Engineers Cadre upto a maximum of six per year. They were also expressly informed that in the event of their being selected in Class I Service their seniority would count from the date of their permanent appointment to Class I Service. They were required to execute service agreements "as applicable to temporary officers". It was also stipulated that in all matters not specifically referred to in the order of appointment, the person appointed would be governed by the provisions of the Indian Railway Establishment Code and the extant orders issued from time to time. The petitioners accepted the terms offered to them and joined duty in the posts to which they were appointed.

7. The agreements which the petitioners and others like them were required to execute and which they presumably did execute (were in a standard form known as 'Agreement for Temporary Assistant Officers of the Indian Railways'. Paragraph 2 of the standard form and agreement specified that the appointment was in a gazetted post C wloich is neither in Class I nor in Class II service) on scale Rs. 350-350-380-380- 30-590-E.B.-770-40-850. Paragraph 5 mentioned that the person appointed would be eligible along with other temporary Assistant Officers "for being considered for absorption in the permanent vacancies in the Class I (junior scale) of the ............ department upto a L

~.

maximum number of vacancies in a year as may be fixed by the Govern- ···· ment" and that in the event of his being selected for that service his seniority would count from the date of confirmation. Paragraph 6 recited that he would be considered for appointment to a Senit>r Scale post. The agreement provided that in respect of matters for which no provision was made in it, the provisions of the Indian Railway Establishment Code from time to time in force or rules made thereunder shall apply to the extent they were applicable to temporary Assistant officers.

It was further provided that the decision of the Government as to their applicability, interpretation and effect shall be final.

8. It should be mentioned here that though there was no previous Presidential sanction for making appointments to posts which were

-,\_ .

KATYANI DAYAL l'. um(; N (Chinltf1{1(HI Reddy, J.). t 51

-neither in-Class lljror in Class II but merely in 'gazetletl serviae', the

tJllltter was rectified and Presidential ., sanction was St!bseqnently ell- __ __ _ - . tained in November, 1956. This was communicated by the Raitwi'y Board to the General Managers of all Indian Railways by letter No.

E-55RC-16 (Pt. A) dated November, 22, 1956. It was also decided by -<tile President that the Railway Board of the competent authority M I

awoint Temporary Assistant Officers in the various departments ef the

Railways. This was mentioned by the Board in letter No. E. (GF-P) 56RC-16 Pt. A dated 18-12-57 addressed to the General Managers of , au Indian Railways.

9. Between the years 1955 and 1964 as many as 553 temporary Assistant Engineers were appointed after selection by the Union PubliC Service Commission. Though in their orders of appointment as tem- porary Assistant Engineers, the petitioners and others were told that six of them would be absorbed into the Indian Railway Service of Engi- neers Class I every year, the quota was increased to eight per year in 1957 and fifteen per year in 1961. In 1960 the quota was fixed at "60% . of the actual intake of Probationers from the CBS etc. examinations".

Again in 197 5 the quota was increased to 25 per year. The net result -was that all but a 107 temporary Assistant Engineers were left unabsorbed by the time of the filing of the Writ Petitions and they too were finally absorbed in 1979 by what was described to us as a 'blanket order'. We were informed that the validity of the absorption on this mass scale is under challenge in some Writ Petitions filed by members -of the Indian Railway Service of Engineers, Class I. A~ this juncture we also find it necessary to mention that the Railway Board decided, on September 17, 1965, that the temporary officers so absorbed into the Indian Railway Service of Engineers should also be given weightage in seniority "on the basis of half the total number of years of continuous service in working posts on Railways prior to their permanent absorp- tion into Class I, subject to a maximum weightage of five years".

This, of course, was the result of representations made by the temporary "officers. This too we are told is under challenge.

10. The petitioners have filed these Writ Petitions in a represen- tative capacity purporting to represent all temporary Assistant Engi- . neers appointed on the recommendation of the Union Public Service

Commission, claiming that, in law, they could only be and were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither Class I nor Class II. They claim that they wer~ ;; appointel to temporary posts in the cadre of Indian :Railway Service

.-..

SUPREME COURT REPO~US

of Engineers Class I and that their seniority had to be reckoned on the basis of their length of continuous service, though they concede that in any given year those appointed on the basis of the resnlts of the compe titive examination might be placed above those appointed on the basis of the selection by the Union Public Service Commission.

Th•~Y contend that the Railway Board had no authority to create an unclas:; ified service, as it were, outside the provisions of the Indian Railway Establishment Code. Notwithstanding the reqnisitions issued by the Railway Board, the advertisements issued by the Union Public Service Commission and the letters of appointment issued to the petitioners, they contend that they were appointed to the cadre of Indian Railway Service of Engineers Class I and to no other service. They contend that they were recruited to Class I service under rule 130(d) of the Indian Railway Establishnient Code which provides for "occasional admission of other qualified persons on the recommendations of the - Union Public Service Commission". They question the vires of the note to Rule 106 which was added by way of amendment in 1956 and which provided that 'temporary Assistant Officers would not be classified either as Class I or as Class II'. The petitioners claim that the distinction made by' the Railway Administration between Assistmt Officers recruited on the basis of the results of the competitive examination and the temporary Assistant Officers recruited on the recommendation of the Union Public Service Commission was discriminatory and offended Articles 14 and 16. They contend that all Assistant Officers formed one class under the Indian, Railway Establishment Code. The further classification of Assistant Officers into those that were recruited on the basis of a competitive examinatwn andthosefnat were recruited on the recommendation of the Union Public Sen•ice <;:ommission :was a "micro-classification" not permissible under the law. They point out that the minimum academic qualifications and the scales of pay of the Permanent and the Temporary Engineers (for the sake of brevity the Assistant Officers appointed on the basil; of the results of the competitive examination may hereafter be described as permanent Engineers while those appointed on the basis of"ffie recommendation of the Union Public Service Commission may be described as Temporary Engineers) were identical, the duties and functions were the same , and they occupied interchangeable pests.

They further allege that, in any case, the right of absorption of six tm p6rary Engineers only every year into the Indian Railway. Service of Engineers were arbitrary and inequitous. It had resulted in such gross injustice that two decades of service of several of the petitioners was to be count, ed for nothing.

KATYANI DAYAL v. UNION (Chinnappa Reddy, J.)' 153

11. Before proceeding to consider the various contentions raised on behalf of the petitioners it is necessary to make a brief reference to tbe history, service and legal, of one of the many petitioners. Shri Katyani Dayal was working as an Assistant Engineer in the service of the Punjab Government from 1952 onwards. He was one of those who . was selected by the Union Public Service Commission and appointed as a temporary Engineer in 1958. He was drawing pay in the junior scale. He crossed the Efficiency Bar in 1966 and according to him he was thereafter entitled to be considered for promotion to the senior scale to the post of District Officer. He founded his claim l)n r. 133(3)

(c) on the basis that he was an Assistant Officer within the meaning of that expression as then defined by r. 102(3). As he was not so promoted and as it was proposed, on the basis of some circulars, to promote permanent Engineers of four years standing, he filed a Writ Petition in the High Court of Allahabad claiming that he was entitled to be considered for promotion to officiating post of District Officer. The Railway Board opposed the claim of Katyani Dayal on the ground that he was a temporary Assistant Engineer and not an Assistant Officer and therefore, not entitled to be promoted in terms of r. 133(3)(c).

The Railway Board's contention was over-ruled by a learned Single Judge of the High Court and a direction was given to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the posts of District Officers as soon as vacancies arose. The Railway Administration was directed to ignore the circulars which gave preference to Class I junior scale officers of four years standing or more as against temporary Asistant Engineers.

An appeal filed by the Railway Administration under the Letters Patent was dismissed by a Division Bench of the High Court. Though the Division Bench dismissed the appeal on August I, 1974, the Railway Administration did not implement the judgment but instead on Decem ber 12, 1975 amended rule 102(3), 133(3)(c) and (f) and introduced new rule 102(17) so as to expressly exclude temporary Assistant Officer [newly defined. by r. 102(7) from the category of Assistant Officer and thus make him ineligible for promotion to the senior scale under r. 133 (3){c) and (f)].

12. It appears that the status of the temporary Assistant Engineers recruited on the recommendation of the Union Public Service Commission has been the subject matter of the decisions of several High Courts. Some of them have been placed before us .

13. The relevant provisions of the Indian Railway Establishment It- Code may now be referred to.

11-189 SCl/80

14. Rule 102(3) originally defined an Assistant Officer to mean 'a Gazetted Railway Servant drawing pay on the scale applicable to Junior Scale Officers', but 'was not to include a Class II Officer'. By an amendment made on December 31, 1975, the expression was redefined and an 'Assistant Officer' now 'means a Gazetted Class I Railway Servant drawing pay in the junior scale. It does not include a Class II Officer or a temporary Assistant Officer who is not classified either as Class I or Class II'.

Prior to December 31, 1975 "Temporary Assistant Officer" was not defined but by an amendment dated December 31, 1975 "Temporary Assistant Officer" has been defined and now means "a gazetted Railway servant drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as Class II Officer".

Rule 102(13) defines a 'Railway, Servant' as meaning a person who is a member of a service or who holds a post under the administrative control of the Railway Board, including a person who holds a post in the Railway Board:

Roles 105 and 106.to the extent they are relevant are as follows :

"105. For the purpose of the rules in this Volume the railway services shall be classified as follows :-

Gazetted

(1) The Railway Services, Class I.

(2) The Railway Services, Class II.

Non-gazetted.

(3) The Railway Services, Class III.

(4) The Railway Services, Class IV.

(5) The Workshop Staff.

106. Establishments and categories (including probationers), falling under the services mentioned in rule

105, are shown below-

Class I

(1) Posts in the Railway Board;

i ..

KATYANI L>AYAL v. UNION (Chinnappa Reddy,!.) 155

(2) Directors, Joint Directors, Deputy Directors, Assistant Directors, Railway Board and Research, Designs and Standards Organisation; Secretary, Deputy Secretary, Under Secretary and Section Officers, Grade II, Railway Board.

(3) Indian Railway Service of Engineers; ( 4) Indian Railway Accounts Service;

(5) Indian Railway Traffic Services;

(6) Indian Railway Service of Mechanical Engineers;

(7) Indian Railway Service of Electrical Engineers;

(8) Indian Railway Service of Signal Engineers!

(9) Indian Railway Medical Service;

(10) Indian Railway Stores Service; (II) Senior Revenue Establishment, Indian Railways, comprising such specialist and Miscellaneous posts as have been included in Class I e.g., Chemist and Metallurgists (Senior Scale) and Chief Cashiers (Senior Scale).

Class II

Gazetted posts not included in Class I.

Note.-Temporary Assistant Officers will not be classified either as Class I or Class II.

Class III

• • • • • •

Class IV

• • * • •

' It must be mentioned here that this Note to rule 106 was not there originally but was added in 1956.

Rule 107 provides that the prescribed scale of pay admissible to H Railway servants belonging to Railway Service Class I and Class II !hall be as specified in appendix XIV.

SUPREME COU.11.T REPORTS

[1980] 3 S.C, R.

A Rule 108 may also be extracted here and it is as follows :

"108. Sanctioned strength of cadres.-Subject to any statutory provision in this regard, the strength, including both the number and character of posts of the Railway Services, Class I and II, shall be determined oy the Railway Board, General Managers of Indian Railways may create temporary posts in the Railway Services, Class I and Class II, subject to such limits as may be laid down by the Railway Board.

Note.-Provided the total number of sanctioned gazetted post in any grade (Heads of.Departments, Deputy Heads of Departments, District Officers, Assistant Officers are Class II Officers) of the service concerned is not exceeded, General Managers are empowered to vsry solely in the public interest having regard to changes in the work and responsibilities of the posts, concerned (and not in the interest of individual officers), the distribution of posts within that grade for a period not exceeding 12 months".

Rule 109 to the extent it is relevant in this case is as follows :

"109. The cadres of the services and departments included in Railway Services, Classes I and II (other than the Medical Department and specialists posts) on Indian Railways shall be fixed in accordance with the principles stated below :-

(I) Separate cadres shall be maintained for each Indian Railway.

(2) The number of permanent working posts, that is, posts required for ordinary duty on the railway, shall be first determined for each service or de partment and divided into the following grades :-

(i) Administrative,

(ii) District Officers,

' . .._

KATYANI DAYAL v. UNION (Chinnappa Reddy, J.)' 157

(iii) Assistant Officers and Class II Services.

(b) • * * • •

(c) The number of posts to be allotted to the Assistant Officers' grade shall be calculated with reference to the total number of Administrative and District Officers' Posts, and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers' grade to the higher grade after a given period of service. For this purpose, all the administrative posts, including the general administrative posts, shall be taken into account.

(d) The rest of the posts included in (a) (iii) shall be allotted to the Class II Service.

(e) The total number of posts thus arrived at for

each grade in a department shall form the per- D manent duty strength of each service or department.

(3) * • * * • •

(4) • • * * * •

Rule 112 provides that the number of posts sanctioned in each grade in a department shall in no case be exceeded without the sanction

of the authority competent to create a post, either permanent or tern- F porary in the grade.

Rule 116 prescribes that except as provided in r. 133(4) officiating promotion to the Assistant Officer's grade or to a higher grade of gazetted Railway Servants from Class II service or from the nongazetted establishment is not permissible.

Rule 118(1) provides that the number of Gazetted Railway servants on duty in a department shall not exceed the permanent duty strength sanctioned for that department.

Rule 125 prescribes that all appointments to a Railway Service Class II shall be made by the President on the recommendation of the H Union Public Service Commission from time to time in accordance with the rules framed by them.

Rule 129 provides that the rate of normal recruitment shall be determined by the President with reference to the sanctioned strength of a service or Department.

Rule 130 is important and may be fully extracted here.

It is 'as follows : B •

"130. Method of recruitment-Recruitment to Class I service in the various departments of Railways shall be made through- ·

(a) competitive examination held in .India by the

Union Public Service Commission;

(b) promotion of specially qualified gazetted railway servants of the Class II Service including officiating gazetted railway servants of the service or department;

(c) in the case of Transportation (Power) and Mechanical Engineering Department, by appointment of candidates as Special Class Apprentices; and

( d) occasional admission of other qualified persons on the recommendation of the Union Public Service Commission.

Note.-The quota reserved for permanent promotion from Class II to Class I has been fixed at 33-1/3 % of the vacancies in the Junior Scale, Class I (Senior Scale in the case of Medical Department).

Rule 131 provides that Probationers to the Railway Service Class I shall be required to undergo a period of training as may be prescribed by the President.

Rule 132 provides fo(recruitment to Railway Service Class II.

Rule 133 deals with promotions to gazetted posts. We are concerned with rule 133(3)(c) and (f) which to tte extent relevant were previously as follow& :

"133. Promotions to gazetted posts.--·

(I) •

(2) •

• • • * •

/ I _k.

KATYANI DAYAL v. UNION (Chinnappa Reddy,!.) 159

(3) The General Manager may appoint-

(a) •

(b) •

• • • • • •

(c) An Assistant Officer to officiate as District Officer, provided that such a gazetted railway servant who B has not passed the efficiency bar may be so appointed only, if-

(i) a gazetted railway servant who has passed the efficiency bar is not available; or

(ii) the vacancy is not expected to exceed three months;

(d) (e) • • •

(f) substantively, an Assistant Officer to the District grade provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than ten years of total service and has been declared fit to cross the eflieiency bar in the junior scale.

Note.-The period of 10 years of total service will also include the two years of training in the case of direct recruits. In respect of promoted gazetted railway servants all those placed in the Seniority list above the last direct recruit who fulfils the above condition will receive confirmation in their turn."

These provisions were also amended on December 31, 1975, and they are now as follows :-

"(c) an Assistant Officer to officiate in the Senior Scale provided that such an Assistant Officer who has not passed the efficiency bar may be so appointed only, if an

Assistant Officer, who has passed the efficiency bar is not available;

(d) • • • •

(f) substantively, an Assistant 'Officer to the Senior Scale, provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than eight years of total service and has been declared fit to cross the efficiency bar in the junior scale .

Note.-The period of eight years of total service will also include the two years of training in the case of direct recruits. In respect of promoted gazetted railway servants all those placed in the seniority list above the last direct recruit who fulfils the above condition will receive a confirmation in their turn".

Rule 139 makes provision for the making of recruitment rules and the note to rule 139 provides that in the case of recruitment to gazetted posts, the rules should be published in the Gazette of India in the section allotted to Statutory Rules and Orders.

Rule 144 obliges every railway servant to execute an agreement with the President of India at the time of his substantive appointment and further provides that those appointed for a limited period may also be required to execute such agreements.

Rule 2003(3) defines cadre as meaning 'the strength of a service E or a part of a service sanctioned as a separate unit'.

Rule 2003(22) defines a permanent post as meaning a post carrying a definite rate of pay sanctioned without limit of time.

Rule 2003(29) defines a temporary post as meaning a post carrying a definite rate of pay sanctioned for a limited time.

Rule 2003(30) defines a tenure post as meaning a permanent post which an individual Railway servant may not hold for more than a limited period.

Rule 2003(31) defines time scale of pay and whole of it may be extracted here :

"(31) (a) Time-scale pay means pay 'which subject to any conditions prescribes in these rules, rises by periodical increments from a minimum to a maximum.

It includes the slabs of pay formerly known as progressive. e

(b) Time-scales are said to be identical if the minimum, the maximum, the period of increment and the rate of increment of the time-scales are identical.

I -*-

KATYAM 11.WAI. v. UNION (Chinnappa Reddy, J.). 161

(c) A post is said to be on the same, time-scale :as another post on a time-scale if the two time scales are identical and the posts fall within a cadre, or a class in a cadre, such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility, in a service or establishment or group of establishments; so that the pay of the holder of any particular post is determined by his position in the cadre or class, and not by the fact that he holds that post".

15. The earlier narrated facts show that for quite several years it was distinctly understood by the appointing authority a.s well as the persons appointed that those who were appointed as Temporary Assistant Engineers on! the basis of the selection made by the Union

Public Service Commission did not belong either to Class I or to Class II of the Indian Railway Service of Enginc<rs.

It was understood that they would be eligible for being considered for absorption: in the Indian Railway Service of Engineers Class I in an annual quota reserved for such absorption and that their seniority would be reckoned thereafter from the date of their confirmation in Class J.

It was also understood that they would be eligible for being considered for promotion to officiating posts in the senior scale. This position in regard to their status was made clear, without the possibility of a shadow of doubt, in the letters of appointment issued to them and the agreements which they were required to execute.

Considerable argument as advanced on the question whether a service not contemplated by the Indian Railway Establishment Code could be created and whether appointments of Gazetted Railway servants not falling in Class I or Class II and therefore falling outside the provisions of the Indian Railway Establishment Code could be made. The submission was that the Indian Railway Establishment Code did not contemplate a class of service which did not belong either to Class I or Class II, and that every gazetted railway servant had to belong either to Class I or Class II and the question whether the posts to which appointments were made belonged to Class I or not had to be determined with reference to the minimum educational qualifications prescribed for the post, the scales of pay, the functions and duties ete. It was submitted that notwithstanding the clear assertion in the letters of appointment and the agreements, the petitioners must, in law, be considered to have been appointed to the Indian Railway Service of Engineers Class I and to no other service.

16. Art. 53 of the Constitution vests the executive power of the Union in the President, to be exercised by him either directly or through

officers subordinate to him, in accordance with the Constitution.

Art. 73(t)(a) stipulates that the executive power of the Union shall extent "to the matters with respect to which Parliament has power to make laws". "Union Public Service and all-India Services" are included in item 70 of the Union List (List I of the Seventh Schedule) enumerating the matters with respect to which Parliament has the exclusive power to make laws. The proviso to Art. 309 of the Constitution makes it competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Parliament to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union.

17. The inevitable sequitur from these Constitutional provisions is that the President, acting directly or through Officers subordinate to him, is free to constitute a service (with as many cadres as he chooses), to create posts without constituting a service or to create posts outside (the cadres of) the constituted service. The President (or the person directed by him) may, or, again ifhe so chooses he may not, make rules regulating the recruitment and conditions of service of persons appointed to such service or posts. He is also free to make or not to make appointments to such services or posts. Nor is it obligatory for him to make rules of recruitment etc. before a service may be constituted or a post created or filled. But if there is an Act of Parliament or a rule under the proviso to Art. 309 on the matter, the executive powe, r, under Articles 53 and 73, may not be exercised in a manner in consi stent with or contrary to such Act or rule (vide B. N.Nagarajan & Ors.

v. State of Mysore & Ors., (1) State of Kera/a v. M. K. Krishan Nair & Ors.,(2) etc. etc.

17a. So, the previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers. That, precisely, was what was done in 1956 and subsequent years upto 1965.

The administrative expedience and exigence of the time required the creation of temporary posts outside the cadres of the Indian Railway

(1) (1966) 3 S.C.R. 682@ 686.

(2) (1978) 2 S.C.R. 864 @ 874.

KATYANI DAYAL v. UNION (Chinnappa Reddy, l.) 163

Service of Engineers.

The circumstances and the reasons necessitating the creation of these posts of Temporary Engineers were fully set out in the 'letters of indent' addressed by the Railway Board to the Union Public Service Commission, the details of which have already been mentioned by us in paragraph 4 supra. The posts so created were not to be confused with the posts in the cadre of the Indian Railway Service of Engineers Class I notwithstanding that the scale of pay and the duties were to be the same. That the posts were not to be treated as in Class I or in Class II of the Indian Railway Ser

vice of Engineers was expressly mentioned and clarified in the requisitions made by the Railway Board to the Union Public Service Commission and the correspondence which ensued between the Railway Board and the Union Public Service commission. It was also made clear in the letters of appointment and the agreements required to be executed by the persons appointed. Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various Departments of Indian Railways, which were neither in Class I nor in Class II but merely in gazetted service, the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956 and by the President further specifying the Railway Board as the authority competent to make appointments of such temporary Assistant Officers. This is apparent from the letter No. E-55RC-16(Pt. A) dated November 22, 1956 and letter No. 5 (GF-P)56 RC-16/Pt. A dated December 12, 1956 to which we have referred in paragraph 8 supra.

18. The posts of Temporary Assistant Officers were thus created, and appointments made, under valid authority and outside the existing cadres of the Indian Railway Service of Engineers. The letters of "indent", the advertisements, the letters of appointment and the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commission were to be a source of recruitment to the Indian Railway Service of Engineers Class I. It was so understood from the inception by the persons appointed as well as the Railway Administration. In fact subsequent absorptions into the Indian Railway Service of Engineers was the sugar, if one may use such an expression, held cut to those seeking appointment as temporary Assistant Officers. Year by year a few Temporary Assistant Officers were indeed absorbed into the Indian Railway Service of Engineers after selection by a Departmental Promotion Committee and be it noted, not automatically on the basis of seniority. If Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class I, we do not see how any temporary Assistant Officer could possibly be under

any misapprehension that he was appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service.

19. It is not possible to accept the submission that they must be considered to have been appointed under r. 130(d) of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission, their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same. There were special reasons for recruiting Temporary Assistant Officers outside the cadres of the Indian Railway Service of Engineers and when it was admittedly and avowedly so done, and when right through such officers were merely treated as a source of recruitment to the Indian Railway Service of Engineers, it would not be permissible for us to hold that the Temporary Assistant Officers were recruited to the cadre of the Indian Railway Service of Engineers Class I.

20. One of the submissions of the petitioners was that whatever the Railway Board might be asserting now or might have asserted even from the inception, factually, the Temporary Assistant Officers were appointed to temporary posts borne on the cadre of Indian Railway Service of Engineers Class I and nc;>t to any ex-cadre posts. It was submitted that the posts to which appointments were made were not temporary posts in the sense that they were posts of short duration; they were posts, which admittedly were likely to continue indefinitely and even made permanent. The appointments could, therefore, have only been made to temporary posts borne on the cadre of the Indian Railway Service of Engineers. We do not think that there is any substance in these submissions. It is no doubt true that a cadre may consist of permanent as well as temporary posts and there may be permanent vacancies in permanent as well as temporary posts borne on the cadre. But it does not follow that appointments stated to be made to posts outside the vary service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue.

We do not see how we can ignore the very purpose of scheme of recruitment of Temporary Assistant Officer which was to recruit Temporary Assistant Officers outside the existing Service

and cadres to meet the anticipated requirements of certain special objects. Even in the requisition made in the prescribed form by the Railway Board to the Union Public Service Commission it was men-

KATYA NI DAYA:L v. UNION (Chinnap11a Reddy, J.)' 165

tioned "the posts will be sanctioned shortly in connection with a number of projects". It was not mentioned that the posts were already home on the cadre of the Indian Railway Service of Engineers. Our attention was invited to the Annual Administrative Reports where, it was said, no distinction was made between classified and unclassified service. We do not think that these reports are of the slightest help.

The reports merely refer to appointments, temporary as well as permanent, made in the gazetted service by direct recruitment. Gazetted Railway services must include both the Indian Railway Service of Engineers and the Gazetted Railway Service constituted by the temporary Assistant Officers. Therefore, by merely taking into account the number of Temporary Assistant Officers for the purpose of calculating the total number of persons appointed to Gazetted Railway Service it cannot conceivEbly be said that Temporary Assistant Officers were appointed to cadre posts in the Indian Railway Service of Engineers.

Our attention was also invited to the oiassified lists of Officers published by the Railway Board. This list takes the case of the petitioners no further. There is nothing in the list to indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers.

On the other hand under the column "Date of appointment to Class" no entry is made against the names of any of the Temporary Assistant.

Officers who had not yet been absorbed into the Indian Railway Service of Engineers. We were also referred to the reports of the Administrative Reforms Commission where it is said "In the Railways there , is a sizeable number of unclassified posts equivalent to Junior Class,! and only a small number of them are taken each year into the regular service". This statement does not support the case of the petitioners that they were appointed to posts borne on the cadre of.

Inclian Railway Service of Engineers. Far from it. Passages from the reports of the Central Pay Commission were also read out to us to emphasize that the posts have continued over the years indefinitely.

If posts were initially created and sanctioned for short periods, we do. not see how the subsequent continuance of the posts indefinitely would make persons appointed to the posts members of the regular service, namely, the Indian Railway Service of Engineers Class I.

21. Considerable argument was advanced on the question of the 'status' and the effect of the 'note' found below rule 106. It was said ' that the note did not form part of the rules made by the President under the proviso to Article 309 of the Constitution and therefore it could not

amend the other statutory rules. The note was neither declaratory nor R explanatory and was of no a_ffect whatever.

We think that the argument regarding the 'status' and the effect of the note is of no real

relevance. The note merely states an existing fact known to all concerned. It was known that posts of Temporary Assistant Officers in gazetted railway service who were not to be classified 'either as Class I or as Class II' had been sanctioned by the President who had designated the Railway Board as the authority competent to make appointments to those posts. The note below rule 106 merely stated th.ts fact.

With or without the note, the Temporary Assistant Officers would still not be classified either as Class I or Class II. Their classification outside Class I and Class II was not dependant on the note bot on the Presidential action in regard to the creation of the posts.

22. This is perhaps an appropriate stage for referring to the amendments, introduced in 1975, to the Indian Railway Establishment Code.

The expression 'Temporary Assistant Officers', which was not previously defined in the Railway Establishment Code, was sought to be defined by new clause 17 of R. 102 to mean "a Gazetted Railway Servant drawing pay on the scale applicable to Junior Scale Offices but not classified either as Class I or as Class II Officer". The expression Assistant Officer was redefined so as not to include a Temporary Assistant Officer who was not 'classified either as Class I or as Class II'.

Apart from the principal submission that the 1975 amendments were violative of Arts. 14 and 16 of the Constitution, it was submitted that the amendments were prospective in nature and did not affect the petitioners all of whom bad been appointed as Temporary Assistant Officers long prior to the 1975 amendment. We do not think that the amendments have any effect one way or the other on the status of the Temporary Assistant Officers. What was always well known to the Temporary Assistant Officers and the Railway Board and what was the inevitable result of the Presidential sanction for the creation of posts which were not to be classified either as Class I or Class II, was made explicit in the Indian Railway Establishment code also !bY the introduction of these amendments. This became necessary because in the Writ Petition filed by Katyani Dayal, the Allahabad High Court, while appearing to bold that Temporary Assistant Officers belonged neither ' to Class I nor to Class II service, held that they came within the then existing definition of 'Assistant !Officer' so as to entitle them for promotion under r. 133 of the Indian Railway !Establishment Code. We are afraid it was the use of the expression 'Temporary Assistant Officer' that has led to considerable confusion. The expression 'Temporary Assistant Officer' was coined to describe the new post created for the first time in 1955. The expression was not used to signify officers temporarily holding the posts of Assistant Officers in the several established Railway Services. For instance a Class If Assistant Engineer

KATYANI DAYAL v. UNION (Chinnappa Reddy, l.) 167

who is temporarily promoted to hold the post of an Assistant Engineer Class I may be described as a Temporary Assistant Officer but he certainly would not be a 'Temporary Assistant Officer' appointed to any of the posts specially creat<d by the President which were neither in Class I nor in Class II. The word 'Temporary' in the expression 'Temporary Assistant Officer' was not used to qualify the words Assistant Officer. The whole of the expression was intended to describe the particular post, which was neither in Class I nor Class II, which was created iu 1955. There would not have been any confusion and it would have been much happier if instead of the expression Temporary Assistant Officer some other expression such as Special Assistant Officer or Special Assistant Engineer had been chosen. We are of the view that the Allahabad High Court was not justified in looking at the amended definition of 'Assistant Officer' in isolation and concluding that the expression 'Assistant Officer' included Temporary Assistant Officer because Temporary Assistant Officer was also a gazetted Railway servant who drew the junior scale of pay. The definition of Assistant Officer was not to be read in isolation in that manner. It should have been read conjunctively with Rules 105, 106 and 108. A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway Establishment Code, Railway services were to be classified into Class I, Class II, Class III, Class IV and Workshop staff. Rule 106 specified the appointment and categories falling under the services mentioned in Rule 105. Rule 108 required the Railway Board to fix the strength of th~ Railway Services' Class I and Class II. There could therefore, be no question of an officer not falling within the class, category or cadre specified in rules 105, 106 and 108 claiming to be an 'Assistant Officer' within the meaning of that expression. A person recruited to the post of 'Temporary Assistant Officer' not classified as Class I or Class II Officer could not claim to belong to the

Class, category or cadre specified in Rules 105, 106 and 108 and was, therefore, not an Assistant Officer within the meaning of that expression even before the 1975 amendment.

23. We now come to the principal submission made to us namely

that the classification of Temporary Assistant Officers separately from G the Indian Railway Service of Engineers Class I was discriminatory and had no nexus to the object to be achieved namely efficiency of service and was, therefore, violative of Articles 14 and 16 of the Constitution. It was argued that the minimum academic qualification for the posts of 'Temporary Assistant Officer' was the same as that pre- &cribed for entry into the Indian Railway Service of Engineers Class I, ff the scale of pay of 'Temporary Assistant Officer' was the same as hat of a Class I Officer of Junior Scale, the functions and dnties were

similar and on all matters not expressly provided, the Temporary Assistant Officers like Class I officers were to be governed by the provisions of the Railway Establishment Code and the Rules made thereunder. There was so much identity on all vital and important matters that the classification of 'Temporary Assistant Officers' outside the Indian Railway Service of Engineers Class I was arbitrary. It led to all manner of discrimination in the matter of advancement in service, seniority, promotion etc. The unfairness of it all was sought to be graphically demonstrated by pointing out how after twenty years of service Temporary Assistant Officers continued to be Temporary Assistant Officers while Class I officers recruited much later were placed much higher than them in order of seniority and had risen to much higher positions in the service. Another limb of the argument on the question of discrimination was that all Assistant Officers whether they were permanent Assistant Officers or Temporary Assistant Officers constituted as ingle cadre and it was not permissible to further classify them on the basis of the manner of their recruitment, namely, by competitive examination or by selection by the Union Public Service Commission. Part of this submission has already been met by us and we have shown how Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code.

24. It is true that the minimum educational qualification for the post of Temporary Assistant Officer was the same as that for recruitment to the Indian Railway Service of Engineers Class I. It is true that the scale of pay is the same, and the functions and duties are the same. It is also true that except to the extent provided, the Temporary Assistant Officers were also subject to the provisions of the Indian Railway Establishment Code and the rules made thereunder. But, there are certain fundamental differences between two classes which cannot be ignored and which demand attention. To begin with, the object of recruitment to the Indian Railway Service of Engineers is to provide Officers of the highest quality to meet the requirements of all posts in the service including Senior Administrative posts.

Rule 109(2)(c) of the Indian Railway Establishment Code, extracted earlier expressly provides that the number of posts to be allotted to the Assistant Officers' grade shall be calculated with reference to the total number of administrative and District Officers' posts, and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers' grade to the higher grades after a given period of service.

For this purpose all the administrative posts including the general Administrative posts are required to be taken into account. On the

KArYANI DAY/IL v. UNJl)N (Chinnappa Reddy, J.) 169

other hand the object ofrecrtiiting Temporary Assistant Officers was to meet specific requirements of various projects with a prospect of promotion in a temporary capacity to a senior scale post and absorption into the Indian Railway Service of Engineers Class I. They were not to be members of the Indian Railway Service of Engineers but were to be a source of recruitment to the Indian Railway Service of Engineers. Thus the very appointments of Temporary Assistant Officers were to temporary posts outside the cadre and outside the recruitment rules of the Indian Railway Service of Engineers Class I and the very nature of this tenure was prec1rious, whereas Class I Officers recruited on the basis of a result of competitive examination were appointed to cadre posts strictly in accordance with the recruitment rules.

25. Next and equally important, is the [fundamental qualitative differences, linked with the method of recruitment. True, the minimum educational qualification is the same. But, those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competitive, written and personality tests. Only the very best can aspire to come out successful. The Temporary Assistant Officers were not subjected either to a written or to a persoaality test but were selected on the basis of an interview by the Union Public Service Commission. In addition to the [minimum educational qualification, three Years' experience as a Civil (Engineer was also prescribed. Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class J, iwas replaced by experience in the case of those wanting to be Temporary Assistant Officers. Again the appointing authority in the case of Indian Railway Service of Engineers Class I iUhe President while the appointing authority in the case of Temporary Assistpt Officers was the Railway Board, no doubt, pursuant to the authority given by the President. Different courses of training were prescribed for the" Indian Railway Service of Engineers and the Tempo1ary Assistant Officers. For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the Department too, while the training for Temporary Assistant Engineers was a brief six months' training intended merely to equip them for carrying out the specific jobs. In the matter of terms and conditions of service, while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I, those provisions are applicable to "Temporary Assistant Officers" to the extent there is no specific provision in their Jetter of appointment and agreement.

12-J89SC!/80

26. Keeping in mind these similarities and dis-similarities, let us examine the legal pJsition. We cannot do better than to refer to the deci&ions cited at the Bar, not all, but a few illustrative cases.

27. In State of Punjab v. Joginder Singh(}-), the question arose whether the constitution by the State of two S"rvices consisting of B employees doing the same work but with different scales of pay or 1mbject to different conditions of service such as promotional opportunities was.violative of Articles 14 and 16 of the Constitution. The , argument

basedon the postulate that equal work must receive equal pay was repelled, by quoting the following observations fr.om an earlier decision

of the Court in Kishori Mohan/a/ v. Union of India.(2) :

"The only other contention raised in that there is discri- . mination between Class I and Class II officers inasmuch as though they do the same kind of work their pay scales are different.. This, it is said, violates Art. 14 of the Constitution. If this contention had any validity, there could be no incremental scales of pay fixed dependant on the duration of an officer's service. The abstract doctrine of equal pay for equal work has nothing to do with Art. 14.

The contention that Art.· 14 of the Constitution has been violated therefore, also fails."

The second postulate tha(if there was equality in pay and work there must be equal conditions of service was rejected as unsound. If was observed (at p. 191-192) :

"If, for instance, an existing service is recruited on the basis of a certain qualification, the creation of another service for doing the same work, it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional, and the fact that the rules framed. permit free transfers of personnel of the two groups to places held by the other would not make any difference.

We are not basing this answer on any theory that if a government servant enters into any contract regulating the conditions of his service he cannot call in aid the constl~ tutional guarantees because he is bound by his contract.

But this conclusion rests on different and wider public grounds, viz., thatthe government which is carrying on the administration has necessarily to have a choice in the constitution of the services to man the administration and that the limitations imposed by the constitution are not

(!) [1963] Supp. 2 S.C.R. 169@ 191, 192.

(2) A.l.R. 1962 SC 1139.

KATYAM DAYAL v. UNION (Chinnappa Reddy, J.) 171

such as to preclude the creation of such services. Besides, there might, for instance, be temporary recruitment to meet an exigency or an emergency which is not expected to last for any appreciable period of time. To deny to the government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different rules and conditions of service, it might be including promotions, would be to impose restraints on the manner of administration which we believe was not intended by the constitution.'.

Examining the facts of the case before them the Court noticed that the two services started as independent services, the qualifications prescribed for entry into each were different, the method of. recruitment and the machinery for recruitment were different and they continued as different services and were never interpreted into one service. 0The

Court said (at p. 193) :

"If they were distinct 'services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Art. 14 or Art. 16(1). They started dis-similarity and they continued dissimilarly and any dis-similarity in their tre1tment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles''.

28. In State of Jammu & Kashmir v. Tri/oki Nath Khosa & Ors.(l) a rule which provided that only those Assistant Engineers who possessed a degree in Engineering would be eligible for promotion as Executive Engineer and which totally denied any opportunity for promotion to Assistant Engineers who were Diploma holders was challenged as infringing the fundamental rights guaranteed by Articles 14 and 16 of the Constitution. Under the rules, recruitment to the cadre of Assistant Engineer was to be made by direct recruitment of Degree holders in Civil Engineering or by transfer of degree, or diploma holders who bad served as Supervisors for a period of not less than five years. The argument was that degree holders and diploma holders having been integrated into a common class of Assistant Engineers, there was no justification for the classification for promotion to the post of Executive Engineer. The Court upheld the rule and held that the classification of Assistant Engineers into degree-holders

(I) (1974] 1 S.C.R. 771 @ 790, 792.

' '

, F

and Diploma-holders could not he said to rest on any unreal or unreasonable basis. Classification made with a view to achieving adminiscyative efficiency in the Engineering Service was clearly co-related to higher educational qualifications since higher educational qualifications was atleast presumptive evidence of higher mental equipment.

Educational qualification was always recognised as a safe criteria for determining the validity of classification. The earlier decisions of the Court in Roshan Lal Tandon v. Union of India,(1) and Moryan Coutindo & Ors. v. Collector of Customs, Bombay & Ors.,(2) were distinguished on the ground that they were cases where direct recruits and promotees who were fused into a common stream of service were sought to be treated differently by reference to the consideration that they were recruited from different spurces whereas in the case before the Court the classification rested fairly and squarely on the consideration of educational qualifications. It was pointed out that the earlier cases did not rule out a classification on a basis other than that they were drawn from different sources. However, while uphol<ling the validity of the rule Chandrachud, J., and Krishna Iyer, J., uttered words of caution and it is upon these words of caution that the petitioners rely. Chandrachud, J., said (at p. 790) :

"But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excelleµce and equality are not friendly bed-fellows. A pragmatic approach has therefore to be adopted in order to harmonize the requiremeµts of public services with the aspirations of public servants. But let us not evolve,[through imperceptible:extensions, a theory of classification which may subvert, perhaps submerge, the previous guarantee of quality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment. What after all in the operational ' residue of equality and equal opportunity?"

Krishna Iyer, J., said (at p. 792) :

"Mini-classifications based on micro-distinctions are false to onr egalitarian faith and only [substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality".

(I) (1968] l S.C.R. 185.

(2) (1966] 3 S.C.R. 600.

.··~.

.. ~.

KATYANI DAYAL v. UNION ( Chinnappa Reddy, !.) . 17 3

29. In Mohammed Shujat Ali & Ors. etc. v. Union of India & A Ors. etc.(l) one of the questions which arose for consideration was whether the distinction made between Graduate Supervisors and non-Graduate Supervisors and the allocation, to these categories, of three and one vacancies respectively out of every four vacancies in the next higher promotional posts was violative of Articles)4and16ofthe Constitution. After quoting with approval the observations of B Chandrachud, J., and Krishna Iyer, J., in State of J. & K. v. Trilokinath Khosa (supra). Bhagwati J., observed (at p. 481) :

"To permit discrimination based on educational attainments not obliged by the nature of the duties of the higher post is to stifle the social thrust of the equality clause.

C A rule of promotion which, while conceding that non graduate Supervisors are also fit toe promoted as Assistant Engineers, reserves a higher quota of vacancies for promotion for graduate supervisors as against non-graduate Supervisors, would clearly be calculated to destroy the guarantee of equal opportunity".

After saying so much the Court, however, upheld the rule which made the differentiation between Graduate and non-Graduate Super visors on the ground that the differentiation had not been made for the first time by the impugned rule and graduate Supervisors had always been treated as a distinct .and separate class and the two were never integrated into one class. Since the two categories of Super visors were never fused into one class, it was held, there was no question of unconstitutional discrimination on the ground of diffe rential treatment being given to them.

30. In S. B. Patwardhan & Ors. v. State of Maharashtra & On(2) the question concerned a formula of seniority. Direct recruits and promotees, though drawn from two different sources, constituted, in that case, a single integrated cadre. They discharged identical functions, bore similar responsibilities and acquired an equal amount of experience in their respective assignments. Yet, the formula pro vided that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year. While the formula gave to the direct recruits the benefit of even the one year's period of training and another year's period of probation for the purposes of seniority, it denied to promotees the benefit of their long . and valuable experience.

There was no intelligible ground for the differentiation, bearing nexus with efficiency in public service.

(!) [1975] l S.C.R. 449, 481.

(2) [1977) 3 S.C.R. 775.

174 SUPREME COURT REPO!l TS

'Confirmation was one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor en the availability of substantive vacancies, and it. was on confirmation that the promotees seniority was made to depend. The formula was struck down by the Court. Reliance was placed on the decision of the Court in A. K. Subraman v. Union of lndia,(1) where it had been held, while interpreting rules relating to Central Engineering Service

Class~I,!tha(though in cases where recruitment was made frcm different sources a quota system could be validly applied, the quota rule was to be enforced at the time of initial recruitment to the post of officiating Executive Engineer and not at the time of their confirmation. The Court had further observed that there was a well recognised distinction between promotion and confirmation and that the tests to be applied for the purpose of promotion were entirely different from those that had to be applied at the time of confirmation.

31. In H. S. Verma & Ors. v. Secretary, Ministry of Shipping & Transport & Ors.(2), the facts were somewhat peculiar. Certain persons were directly recruited to the Engineering Service of the Ministry of Shipping and Transport (Roads Wing) as a result of a written competitive examination. Certain other persons were-also directly recruited but by interview through the Union Public Service Commission, although such a method of selection was not contemplated by the rules.

In 1966 a rule was added providing for selection by interview through the Union Public Service Commission. The 1966 rule was held not to be retrospective in some Writ Petitions filed in the Delhi High Court by the persons who had been recruited as a result of written competitive examination. The High Court while holding that the amendment was not retrospective did not hold that those appointed prior to 1966 by the interview method were not regularly appointed. Instead, the High Court held that they were appointed and promoted to ex-cadre posts.

In 1973 a notification was issued by the Government to; the effect that the Officers appointed by the interview method must be deemed to have been industed into the service as temporary officers in 1966. Later in 1976 the Government decided to set up two Services to be called the Central Engineering Service (Roads). Group 'A', comprising of Officers appointed by the method of examination and the otber the Central Engineering Pool, Group 'A', comprising of officers appointed by tbe method of interview. Officers of both the services were eligible

to be promoted to certain posts called "isolated posts". Appointments to the 'isolated posts' were to be made by selection or promotion, as the case may be, on the recommendation of a Departmental Pro- •

(I) [19751 2 S.C.R. 979.

(2) [1979] 4 s.c.c. 415, 427, 428.

KATYANl DAYAL v. UNION (Chinnappa Reddy, J.) 175

motion Committee from an integrated list of officers to be drawn up on the basis of the length of their continuous service in their respective grades. The officers appointed by the method of interview assailed the rules contending that though they were appointed to their posts long before the officers appointed by the method of competitive examination, they would rank much below the latter in the list cf seniority and would consequently be denied promotional opportunities to higher posts. Having regard to the vety complicated nature of the facts, the Court after discnssion with the learned counsel appearing for the various parties and the Government made an order, which they thought was best and just in all the circumstances of the case. While issuing the directions certain observations were made. It was said (at p. 427) :

" .... We are. unable to suggest the contention that persons holding similar posts and having similar responsibilities to discharge can be classified into different caegories for the mere reason that some of them were recruited directly by the interview method and some were recruited directly on the result of a competitive examination. Were it permissible to make such classifications, ingenuity may suggest the natur~ of curriculum in different years as the basis of classification. If subjection to different kinds of tests as a condition of eligibility produces qualitative difference in the ability of persons recruited to similar posts, it may perhaps become necessary to limit the promotional opportunities, in regard to the relatively higher posts, to those whose abili ties are remarkably higher. But, it is nobody's case and the Government has made no grievance that the petitioners who were appointed by the interview method are in any way inferior in ability, efficiency or educational qualifications to those who were appointed after a written competitive examination. In the matter of experience too, the peti tioners are In no way inferior to the contesting respondents" .

1l.e Court however, took care to add ·

"Though classification which proceeds merely on the basis that certain persons were recruited after going through one test and certain others after going through another test would be unscientific, it cam1ot be said on the facts of the instant case that there can be no valid basis or justification for classifying the various officers of the Roads Wing into separate categories. As we have stated earlier,

the appointments of some of the petitioners and some of the respondents were made in violation of the rules which were in force at the relevant time. It is in respect of that class of persons that the Delhi High Court was driven to hold that they must be deemed to have been appointed to excadre posts. . ............ But, the fact remains that persons who were appointed contrary to the rules but to excadre posts were taken initially for purposes of certain projects to which we have already referred. Their precarious tenure was continued from time to time but that will not furnish justification for treating them on the same footing as others whose appointments were made strictly in accordance with the rules and who were appointed to posts borne on the cadre of the Central Engineering Service. A division of these two classes of officers into separate categories will remove possible injustice to those who were appointed to cadre posts in that their promotional opportunities will not be blocked or hindered by ex-cadre officers who were recruited on a large scale to meet an urgent necessity. Such a classification will also minimise the injustice which would otherwise have been caused to those who were appointed to ex-cadre posts"·

We have referred, without comment, to a few earlier decisions of this Court and quoted the observations of learned Judges therein.

These decisions and the observations extracted therefrom illustrate and emphasise that there are and there can be no absolutes when we consider claims to justice on complaints of inequality. The marxian ultimate of a classless society, however laudable that may be, is evidently not what is sought to be achieved by Articles 14 and 16 of the Constitution. The goal is a limited one. lt is equality among comparables. A necessary, but not necessarily cynical, implication of equality among comparable is the permissibility of reasonable classification, having nexus with the object to be achieved. So, it was said that if two services started and continued dissimilarly, though they apparently discharged similar duties, they were not comparable services so as to furnish a basis for the claim' to equality (State of Punjab v. Joginder Singh) (supra). But, if in the same service there were two sources of recruitment to the same posts, a classification based solely on source of recruitment was not permissible (Rosha11 Lal Tandon v. Union of India, and Mervyn Coutinda & Ors. v. Collector of Customs, Bombay & Ors.) (supra). This was also the principle of the decision in S. p. Patwardhan & Ors. etc. etc. v. State of Maharashtra & Ors. (supra). Even so, Chandrachud, J., Krishna Iyer,

KATYANI DAYAL v. UNION (Chinnappa Reddy, J.) 177

J., and Bhagwati, J., had to recognise, even if reluctantly, that even A among the members of the same service, a classification based otherwise than on mere source of recruitment such as educational qualification was at times permissible. But necessary words of caution against makiug 'minute and micro-cosmic'.dassifications were uttered. (State of Jammu & Kashmir v. Trilokinath Khosa, (Supra) and Mohammad Shujat Ali & Ors. etc. v. Union of India & Ors. etc. (supra). Chandrachud, J., B however drew the line when among members of the same service a classification was sought to be made between those who had been recruited on the basis of results of a competitive examination and those who had come in by the method of interview. But, here again he felt constrained to say that those who were appointed to ex-cadre posts outside the rules and whose tenure was therefore precarious C could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of the service (H. S. Verma & Anr. v. Secretary, Ministry of Shipping & Transport & Ors.) (supra).

If we now look at the facts of the case before us, we find that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one. The objects of their recruitment were different as explained earlier, the methods of recruitment were dissimilar and the appointing authority was not the same. The training that was imparted was also unlike. The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to b~ absorbed into the Indian Railway Service of Engineers class I.

These distinctive features marked out the Temporary Assistant Officers as a Class-apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter. Of course, once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter.

Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway .

Service of Engineers, as promised in their letters of appointment. No doubt these officers merited something more than the 'long wait' at the portals of the Indian Railway Service of Engineers. The Railway Board however, appears to have tried to make the 'long wait' a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers, subject to a maximum of five years. We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere.

Though we are denying the claim of the petitioners to equality because of the history; origin, and structure of the Services and the

/ existing legal position in relation thereto, we do not wish to be understood as saying: that there is any thing 'doctrinnaire' In the principles of 'equal pay for equal work' and 'equal status for equal pay and equal work'.

They are not goals to be scoffed at.

It may be that in the present societal context the goals appear to be distant. But they are goals worthy of attainment and let us hope, with no overtones of cynicism, that these goals will be achieved in the not too distant future.

All the Writ Petitions and applications for the grant of Special Leave are dismissed but without any order as to costs.

S.R.

Petition~ dis1ilissed~

I ~.

KATYANI DAYAL AND ORS

UNION OF INDIA AND ORS

March 26, 1981)

R. S. SARKARIA

R. S. PATHAK

0. CHIN1'/.APPA REDDY, JJ.

Articles 14 and 16

September 17, 1965

Katyani Dayal

August 1, 1974

December 12, 1975

Union Public ServiCe Commission

G The petitioners, therefore, have filed these writ petitions in a representaHve capacity purporting to represent all temporary Assistant Engineers appoi!lted on the recommendation of the Union Public ServiCe Commission, claiming that, in law they could only be and were appoioted to tho Indian Railway Service of Engioeers Oass I right from the beginning and that the Railway Board was \vrong in treating them as belonging to neither Class I nor aass H II.

Arts. 53, 73(1)(a) and 309

Parliament

Article 309

Articles 53 and 73

[1978] 2 S.C.R. 864

Union Public Service Coon

Union Public Service Commission

Indian Riailway Service of Engineers

Indian Railway Service of Engineers

Indian Railway Service of Engineers Class

clause 17

Katyani Dayal

Allahabad High Court

Arts. 14 and 16

[1968] 1 SCR 185

[1966] 3 SCR 600

sec 415

Articles 14 and 16

Indian Railway

Union

Public Service Commission

(1974] 1 SCR 771

[1968] 1 SCR 185

[1975] 1 SCR 449

[1977] 3 SCR 775

[1975] 2 SCR 979

Article 32

M. C. JJhandare

S. Bhandare

T. Sreedharan

L. N. Sinha

M. K. Banerjee

R. B. Datar

A. K. Ganguli

R. N. Sachthey

A.

Subhashini

F. S. Nariman

Anil B. Dawan

P. H. Parekh

C. B. Singh

R. Karanjwala

S. C. GTJpta

S. C. GTJpta and Ramesh= Chand for RR 14.

Ramesh= Chand

Madan Bhatia

Madan Bhatia and D. Goburdhan for RR 20.

D. Goburdhan

Y.~S. Chitale

V. M. Tarkunde

A. N. Karkhanis

S. D. Gupta

Girdharee Singh

S. K. Jain

A.

CHINNAPPA REDDY

Indian Railway Service of Engineers Class I

Civil Engineering Department

Indian Railways

February 21, 1955

Ministry of Railways

October 31, 1955

Indian Railway Service of Engineers Cadre

Indian Railways'

KATYANI DAYAL

Union PubliC Service Commission

Articles 14 and 16

Railway Establishment Code

Union Public Sen•ice

Punjab Government

High Court of Allahabad

August I, 1974

Decem ber 12, 1975

December 31, 1975

Railway Services, Class I.

Railway Services, Class II

Railway Services, Class III

Railway Services, Class IV

Indian Railway Service of Engineers

Indian Railway Traffic Services

Indian Railway Service of Signal Engineers

Indian Railway Medical Service

Indian Railway Stores Service

H Union Public Service Commission

General Manager

India

Chinnappa Reddy

Art. 53

Art. 73(t)(a)

Union Public Service

Seventh Schedule

Art. 309

Art. 309

Articles 53 and 73

(1966) 3 S.C.R. 682

(1978) 2 S.C.R. 864

Union Public Service commission

Administrative Reforms Commission

Central Pay Commission

Article 309

clause 17

Arts. 14 and 16

Articles 14 and 16

Articles 14 and 16

Kishori Mohan

Union of India.(2) :

Art. 14

Art. 14

Art. 14

Art. 16(1)

Articles 14 and 16

(1974] 1 S.C.R. 771

Chandrachud

Krishna Iyer

(1966] 3 S.C.R. 600

B Chandrachud

Bhagwati

[1977) 3 S.C.R. 775

Delhi High Court

Central Engineering Service

Articles 14 and 16