TMI Blog1987 (6) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Uttar Pradesh were integrated into Public Works Department comprising both these two branches. In 1922 Irrigation branch was separated into a different independent department. Similarly, in 1927 Public Health Department was separated. In 1936 U.P. Service of Engineers Class II Rules (Buildings and Roads Branch) pertaining to P.W.D. were framed in exercise of powers conferred under the Government of India Act. Identical rules also governed the Irrigation Department. Before entering into the controversy that has been raised in the instant appeal it is appropriate to refer to the relevant provisions of the said rules. Rule 3(b) defines 'Member of the Service' as a Government servant appointed in substantive capacity, under the provisions of these rules or of rules in force previous to the introduction in the cadres of the service. Clause (c) defines 'Direct recruitment' or 'Direct appointment' as recruitment or appointment in the manner prescribed in rule 5(i), (ii) and (iii) of these rules. In Rule 4 which is captioned as `Strength of Cadre' it is mentioned in clause (ii) of the said rule that the Government may increase the cadre by creating perman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 19 deals with confirmation of probationers. It mentions that a probationer shall be confirmed in his appointment after he has completed the prescribed period of probation, has passed all the tests prescribed in the rules and the Government is satisfied that he is fit for confirmation. It also provides therein that all confirmations under this rule shall be notified in the United Provinces Gazette. Rule 23 states that seniority in the service shall be determined according to the date of order of appointment to it provided that if the order of appointment of two or more candidates bears the same date, their seniority inter-se shall be determined according to the order in which their appointment has been notified. On December 7, 1961 an office memorandum No. 4162 EBR XXIII-PWD-90 EBR 1954 was issued by the Government laying down the principles for recruitment to the permanent and temporary posts. It is stated therein that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electrical and Mechanical) in the Public Works, Irrigation and Local Self Government Engineering Departments, will be made on the results of competitive exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The relevant provisions of these Rules are quoted hereinbelow:Rule 3: In these rules unless there is anything repugnant in the subject or context: (a) The 'Service' means the U.P. Service of Engineers (Buildings and Roads Branch), Class II, (b) 'Member of the Service' means a government servant appointed in a substantive capacity, under the provisions of these rules or of rules in force previous to the introduction of these rules to a post in the cadre of the service. (c) 'Direct recruitment' or 'Direct appointment' means recruitment or appointment in the manner prescribed in rule (5)(a) (i) and 5(b)(1); (d) 'Commission' means the Uttar Pradesh Public Service Commission; (e) 'Department' means the Public Works Department, Uttar Pradesh; (f) 'Governor' means the Governor of Uttar Pradesh. (g) 'Secretary' means the Secretary to Government Public Works Department, Uttar Pradesh; (h) 'Chief Engineer' means the Chief Engineer, Public Works Department, Uttar Pradesh. (i) 'Period of recruitment' means the period upto the end of December in the calendar year succeeding year in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with these rules, the proportion of vacancies to be filled from the three sources mentioned in the first proviso shall be 25 per cent, 50 per cent and 25 per cent respectively subject to review at the discretion of the Government in consultation with the Commission. Explanation--The vacancies from the source mentioned in rule 5(a)(ii) will, until further orders, be filled from amongst those temporary Assistant Engineers only who were recruited in the Department in consultation with the Commission and were working in this capacity on the date of commencement of first competitive examination: Provided also that recruitment to temporary or officiating vacancies in the posts of Assistant Engineers by promotion from the source mentioned in rule 5(b)(ii) shall be made up to 25 per cent of the vacancies, occurring during any one period of recruitment in the same proportion as in clause (c) of the first proviso and the remaining vacancies shall be filled by direct recruitment under rule 5(b)(i). NOTE--The distribution of vacancies in the permanent cadre in the above manner will be subject to the condition that the Governor, in consultation with the Commission may, for special reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexure C2 to the counter affidavit of S.C. Gupta dated 23.1.81 in Writ Petition No. 3327 of 1980 Syed Masood Tagi Zaidi v. State of U.P. ) This was followed by another order dated 8.6. 1973 (Annexure C-3 ibid) stopping direct promotion against permanent vacancies. These decisions were taken on the basis of the recommendations of Shukla Committee's Report. The respondents are the directly recruited Assistant Civil Engineers in the Buildings and Roads Branch pursuant to the provisions of Rule 5(a)(ii) in the temporary posts of the cadre upto 1961 after consultation with the Public Service Commission. These temporary Assistant Engineers who are working continuously since the date of their appointment in the cadre of Assistant Engineers have questioned the seniority list of Assistant Engineers made by the Government in 1980 pursuant to the Office Memorandum dated December 7, 1961 and U.P. Engineering Service (Amendment) Rules of 1969 and 1971 on the grounds that they are arbitrary and discriminatory being violative of Articles 14 and 16 of the Constitution. These amended rules have been challenged further on the ground that these rules adversely affect their service conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have also held that on the plea of not being confirmed, the long years of service rendered by an Assistant Engineer though appointed to a temporary post substantively cannot be arbitrarily cut off and excluded in determining seniority. Before proceeding to consider the merits of the controversy raised in this appeal it is pertinent to deal with the preliminary objections raised on behalf of the appellants that the validity of rules of 1969 and 197 1 was not challenged by T category officers or by the ad hoc officers at any time prior to the filing of the present writ petitions .out of which the instant appeals on special leave have arisen and as such the writ petitions should be dismissed on the ground of undue delay and laches. This objection was elaborately dealt with by the High Court in its judgment' and it was held that there was no such undue delay and laches which can be considered to be a bar for considering the writ petitions. It appears that the seniority list of 1971 that was prepared following 1969 and 1971 rules was challenged by some 'D' category officers in Civil Writ Petition No. 3734 of 1969 (V. C. Aggarwal v. State of U.P. Ors.). That petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neers (Civil, Electrical and Mechanical). It has been provided therein that the quota of 50% of the vacancies in the cadre of Assistant Engineers in a year will be filled by direct recruits through competitive examination as well as it provides 25% of the permanent posts to be filled up by selection from amongst temporary Assistant Engineers recruited through the Commission. As a concession however, it has provided that the quota of direct recruits through competitive examination will be 25% instead of 50% as there are large number of temporary Assistant Engineers from whom the selection can be made to the vacancies in the permanent posts of Assistant Engineers by selection. This memorandum has subsequently been incorporated in the amended rules of U.P. Service of Engineers 1969. In Rule 5 of the said Rules provision has been made for direct recruitment both in permanent vacancies as well as in officiating or temporary vacancies on the basis of competitive examination conducted by the Public Service Commission and the criteria laid down is that those who are more meritorious judged by the result of the examination and occupy higher place will be recruited to the permanent vacancies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 cannot stand in isolation and has to be read as subordinate to the 1936 Rules. After all, the 196 1 Memorandum cannot override the Rules which are valid under Article 3 13, and so must be treated as filling the gaps, not flouting the provisions. Hence the said O.M. does not affect the petitioners who have become members of the Service and are entitled to have their seniority reckoned from the date of their being members of the Service according to Rule 23 of the 1936 Rules. The 1969 Rules and 197 1 Rules have however, affected the rights of the respondents who have become members of the Service being substantively appointed in temporary posts as Assistant Engineers inasmuch as there has been an amendment effected in Rule 3(b) by providing that a member of the Service meant a Government servant appointed in a substantive capacity to a post in the cadre of the Service. Rule 3(c) also amends the earlier provisions by meaning direct recruitment as in the manner prescribed in Rule 5(a)(i) and 5(b)(i). Similar amendments have been made in Rule 5 and 6. The effect of these amendments is that Assistant Engineers who have become members of the Service being appointed substantively in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Arts. 14 and 16(1) of the Constitution. The above observations have been made by this Court in the case of T.R. Kapur v. State of Haryana Ors., JT 1986 (SC) 1092 at 1101 (in which one of us was a party). It has been held by this Court in E.P. Ravappa v. State of Tamil Nadu, AIR 1974 (SC) 555 at 583 and Maneka Gandhi v. Union of India, AIR 1978 (SC) 597 at 624 that there should not be arbitrariness in State action and the State action must ensure fairness and equality of treatment. It is open to judicial review whether any rule or provision of any Act has violated the principles of equality and non-arbitrariness and thereby invaded the rights of citizens guaranteed under Arts. 14 and 16 of the Constitution. As has been stated hereinbefore the Assistant Engineers who have already become members of the Service on being appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rule 23 made it clear that an appointment made substantively on probation against a clear vacancy in a permanent post will be treated as substantive appointment. Thus the 1969 and 1971 amendments in effect take away from the officers appointed to the temporary posts in the cadre through Public Service Commission, i.e. after selection by Public Service Commission, the substantive character of their appointment. These amendments are not only disadvantageous to the future recruits against temporary vacancies but they were made applicable retrospectively from 1.3.1962 even to existing officers recruited against temporary vacancies through Public Service Commission. As has been stated hereinbefore that the Government has power to make retrospective amendments to the Rules but if the Rules purport to take away the vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Arts. 14 and 16 of the Constitution. In the case of S.B. Patwardhan v. State of Maharashtra. [1977] 3 SCR 775 at 778 Rule 8(iii) of 1960 Rules of Bombay Service of Engineers Grade II which provided that direct recruits on probation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken away by giving retrospective effect to the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable. We have already mentioned hereinbefore that the amended rules of 1969 read with the amended rules of 197 1 adversely affect the rights of the Assistant Engineers appointed to substantive posts prior to the introduction of these amended rules and create fetters for the long years of service being ever considered for reckoning of seniority in the cadre of Assistant Engineer. It is pertinent to refer in this connection the decision of this Court in the case of Mohammad Shujat Ali Ors. etc. v. Union of India Ors. etc., [1975] 1 SCR 449 wherein it has been observed that it is true that a rule which confers a right of promotion or the right to be considered for promotion is a rule prescribing condition of service. For promotion from Assistant Engineer to the post of Executive Engineer seniority-cum-merit is the criterion in accordance with the service rules in question. These temporary Assistant Engineers unless they are selected to the 50% quota in permanent vacancies reserved for promotion from the Assistant Engineers appointed to temporary posts, will never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly, this process of direct recruitment against permanent vacancies was discontinued after 1971 and these amended rules were not thereafter taken recourse to in filling up the vacancies in the cadre of Assistant Civil Engineers as it worked injustice and had led to patent discrimination violating Articles 14 and 16 of the Constitution. This is perhaps the reason and rationale which impelled the Shukla Committee to recommend the discontinuance of this practice of giving promotion to direct recruits. Quota and rota are introduced where recruitments to a cadre of Service are made from two or more sources. But in the instant case the quota has been introduced for the first time after their recruitment for determining seniority in service 'T' category having become members of the Service already and also there are no different sources of recruitment as both 'D' and 'T' category employees are recruited by examination conducted by Commission. Moreover no quota for filling up permanent vacancies has been provided at the initial stage of recruitment but a quota has been made after recruitment at the stage of confirmation. In this connection it is relevant to men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative efficiency in the engineering service by introducing higher qualification for promotion to the post of Executive Engineer. In the instant case, all the Assistant Engineers whether appointed in a temporary post of the cadre or in the permanent post of the cadre are recruited directly from Graduates in Civil Engineering. The only difference is that due to exigencies of service a large number of Assistant Engineers were recruited by the Government in consultation with the Public Service Commission in accordance with Rule 5(a)(ii) of 1936 Rules as it was prior to its amendment, against temporary vacancies and those Engineers have been working as Assistant Engineers since their appointment from 1956 onwards till the end of 1961 when the impugned 1961 Memorandum was promulgated by the Government and thereafter the amended Rules of 1969 and 197 1 were made. It was for the first time that the amendment in the rules was made retrospective by introducing the process of selecting Assistant Engineers to be appointed directly against permanent posts on probation through examination to be conducted by the Public Service Commission in 1962. Necessary amendments were also made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. after the selection by the Commission the long years of service after becoming members of the Service. It is also pertinent to mention here that though these temporary posts of the cadre have been continuing for over years together yet these temporary posts have not been made permanent before 1961 and thereby depriving the Assistant Engineers from being appointed against permanent vacancies even though they have become members of the service being appointed in a substantive capacity. These temporary, Assistant Engineers after introduction of the amended rules have been relegated to a very uncertain position as to when they will be selected against permanent vacancies by the Commission in the 50% quota provided under Rule 6 of the amended Rules to become members of Service and to have their seniority reckoned. Moreover the fate of those Assistant Engineers who are selected and appointed in temporary posts on the basis of the results of the examination is also very uncertain inasmuch as they will be considered for selection by the Commission against the quota for temporary Assistant Engineers after the Assistant Engineers appointed before them are all considered for selection in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll these years and these direct recruits have worked there since their appointment. We also make it clear that our decision will not affect any confirmations or substantive promotions made prior to the filing of the writ petitions. It appears that an interim order was made by this Court on 5.5. 1982 to the effect that if any appointments pursuant to the fresh rules which are framed, are made these will be subject to the results of these appeals. It also appears that in Civil Appeal Nos. 2616-19 of 1981 this Court while disposing of those appeals by order dated 15.4.1981 directed that in regard to promotions already made in accordance with the impugned seniority list there shall be status quo as on the date on which the writ petitions were filed in the court. It was also directed that such promotions and any future promotions made in accordance with the impugned seniority list will abide by the result of these appeals. We make it clear that since we are dismissing these appeals all those ad hoc promotions given during the pendency of these writ petitions as well as civil appeals will not confer any right on the promotees. We further hold that so far as the temporary Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with concerned rules have become members of the service. We direct the authorities concerned to prepare a fresh seniority list of all the members of the service in the cadre of Assistant Engineer in the PWD Department on the basis of their length of service from the date they have become members of the service fulfilling all the requirements laid down in the service rules. We cannot but observe in this connection that though the temporary Assistant Engineers have been duly selected by the Public Service Commission after they are appointed as temporary Assistant Engineers yet in spite of several directions given by this Court, the authorities concerned did not think it fit and proper to prepare the seniority list in accordance with the directions given by this Court and as a result no seniority list in the cadre of Assistant Engineer has yet been prepared following the directions made even by this Court as embodied in the decision in Baleshwar Dass Ors. v. State of U.P. Ors. On the other hand amendments have been made to the existing 1936 service rules which per se seem to be arbitrary and this led to a spate of litigations. We do hope and expect that consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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