Holding

Temporary Assistant Officers are not ‘Assistant Officers’ within the Indian Railway Establishment Code and their separate classification does not infringe Articles 14 and 16.

Summary

The petitioners, appointed as Temporary Assistant Engineers between 1955 and 1964 under a special scheme, claimed they were members of the Indian Railway Service of Engineers (IRSE) Class I and were entitled to promotion under Rule 133(3)(c) and equal treatment under Articles 14 and 16 of the Constitution. The Railway Board argued that they were a distinct, temporary cadre created by Presidential sanction and not classified as Class I or Class II officers. The Supreme Court examined the constitutional power to create services, the validity of the 1975 amendments to the Railway Establishment Code, and the applicability of Articles 14 and 16 to the classification. It held that temporary Assistant Officers are not ‘Assistant Officers’ within the meaning of the Code and their separate classification is a reasonable classification with a nexus to efficiency, thus not violative of Articles 14 and 16. Consequently, the petitioners’ claim to equal seniority and promotion was rejected and all writ petitions were dismissed.

Issues considered

Whether temporary Assistant Engineers appointed under the special scheme are members of the Indian Railway Service of Engineers Class I for purposes of promotion under Rule 133(3)(c).
Whether the classification of Temporary Assistant Officers as a separate cadre violates Articles 14 and 16 of the Constitution.
Whether the President, under Articles 53, 73(1)(a) and 309, may create posts outside the existing cadres of the IRSE.
Whether the 1975 amendment to the Railway Establishment Code is retrospective and unconstitutional.
Whether seniority of temporary officers should be reckoned from the date of their absorption into the IRSE.

Legislation cited

Constitution of Indias. Art.14, s. Art.16, s. Art.309, s. Art.53, s. Art.73(1)(a)
Indian Railway Establishment Codes. Rule 102(3), s. Rule 102(7), s. Rule 105, s. Rule 106, s. Rule 108, s. Rule 130, s. Rule 133(3)(c), s. Rule 133(3)(f)

Subjects

temporary appointmentservice classificationArticle 14Article 16Indian Railway Service of Engineerssenioritypromotionconstitutional lawexecutive powerequal opportunity

Judgment

139

KATYANI DAYAL AND ORS.

v.
UNION OF INDIA AND ORS.

March 26, 1981) B

(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
c
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, D
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 _ E
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 per-
sonnel 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~
F
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 maxi-
mum 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 appli-
cable to temporary officers". The petitioners accepted the terms offered to
them and joined duty in the post to which they were appointed. The petitioners H
,aJso executed agreements in a standard form known as "Agreement for Tempo-
l'lll'Y Assistant Officers of the Indian Railways~.
140 SUPREME COURT REPORTS [1980] 3 S.C.R.

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 CES- etc.. ,.
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 ·werc-
fullllly 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
half the total number of Years of continuous se~ice in working posts on Ilail-
c ways 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 l~lla
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
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- B
11ent, acting directly or through officers Subordinate to him is free to consti-
tute 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
c
make 9r not to mlake appointments to such services or posts. Nor is it obli-
gatory for him to make rules of recruitment etc. before a service may be cons-
tituted 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 con- D
trary to •uch Act or Tule. [162D·F]

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.
E
(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 Presiden-
tial sanction for the creation of the posts of Temporary Assistant Officers in
F
···"'--- 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 Tem-
porary Assistant Officers were thus created and appointments made, under
'\'alid authority and outside the existing cadres of the Indian Railway Service
G
<>f Engineers. The letters of ''indent", the advertisements, the letters of ap-
' pointment 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
B
<ecruitment to the Indian Railway Service of Engineers Class, no temporary
Assistant Officer could possibly be under any misapprehension tbla·t he was
142

A appointed to the ltl,d,iaa Railw~y 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 Co~on merely because they were selected for ap-
pointnient 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 o~tside 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]
D
The Annual Administrative Reports merely refer to appointments, teinJ:Kl-
mry 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 nmn-
ber of persons appointed to Gazetted Railway Service it cannot conceivably
be said that T·emporary Assistant Officers were appointed to- cadre posts in tJle
Indian Railway Service of Engineers. Even the classified lists of Gazett1~d
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.ce-
G
of 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'
B 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
B
(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 c
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 inevi-
table 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 amend-
ments. This became necessary because in the Writ Petition filed by Katyani E
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]
F

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
G'
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 spe-
144 SUPREME COURT REPO:RTS [1980] 3 S.C.R.
IA ci:fied in Rules 105, 106 and 108 and was, therefore, not an A.s.!i~tant 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
B
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 rea·sonable
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 Cou-
tindo & 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
E
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.
'F
(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]
'G
_ 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 A~sistant 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 entitl-
ed 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 c
·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 per-
sonality 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 quali-
fication, three years' experience as a Civil Engineer was al~o 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 w~re
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- G
-cable to 'Temporary Assistant Officers' to the extent there is no specific pro-
vision 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.
B
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 LEAVE 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.

F 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.
JI 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 B-
attention to every word that fell from counsel and judge. One could~
not help wondering whether this multitiered. 'multi-varne' Service-
system 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 c
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. E

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 F
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 brid- G
ges, new lines, doubling of electrification of existing lines etc. were taken
up by the Civil Engineering Department of the Indian Railways. It
I 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
148 SUPREME COURT REPO~US [1980] 3 S.C.R.
A
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 with-
in 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 vacan-
cies in the Indian Railway Service of Engineers each year for being
D filled by such temporary Engineers. Six vacancies in the Indian Rail-
way 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
E 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 belon-
ged was mentioned as "Gazetted Railway Service". Against the I
IF heading "whether permanent or temporary", the posts were men- '
tioned 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 candi-
dates would be eligible to be considered tor absorption in permanent
H 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
KATYANI DAYAL v. UNION (Chinnappa Reddy, J.) 149

said that higher initial salary was permissible according to experience A
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
B
service. Similar proposals and "indents" for recruitment of temporary
officers to six other departments of the Railways were also simultane-
ously made.

5. Pursuant to the requisition by the Railway Board, the Union
Public Service Commission issued an advertisement inviting applica- c
tions .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 quali-
fication was stated to be a Degree in Civil Engineering, but an addi-
tional qualification of 'about 3 years experience as a Civil Engineer'
was also prescribed. The qualification was relaxable at the discretion D
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
E
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 F
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 G
. 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. 350-
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 agree-
ment 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
F Officers "for being considered for absorption in the permanent vacan-
cies 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 Establi-
shment 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
o:
·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% D
. of the actual intake of Probationers from the CBS etc. examinations".
Again in 1975 the quota was increased to 25 per year. The net result
-was that all but a 107 temporary Assistant Engineers were left unabsor-
·bed 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 E
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 p
·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.

G
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 appoin-
ted to the Indian Railway Service of Engineers Class I right from the
beginning and that the Railway Board was wrong in treating them as II
belonging to neither Class I nor Class· II. They claim that they wer~
;;appointel to temporary posts in the cadre of Indian :Railway Service
152 SUPREME COURT REPO~US [1980] 3 S.C.R.

A 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:;i-
B
fied 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
c 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
D which provided that 'temporary Assistant Officers would not be classi-
fied 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 exami-
nation and the temporary Assistant Officers recruited on the recom-

.
.- E
mendation 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
F <;: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
G 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 t~m
p6rary Engineers only every year into the Indian Railway. Service of
H 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
J. 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 B
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 pro-
moted and as it was proposed, on the basis of some circulars, to promote c
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
D
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· F
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)].
G
12. It appears that the status of the temporary Assistant Engi-
neers 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
154 SUPREME COURT REPORTS {1980] 3 S.C.R.

A 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 re-
defined and an 'Assistant Officer' now 'means a Gazetted Class I •
Railway Servant drawing pay in the junior scale. It does not include
B 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
c Assistant Officer" has been defined and now means "a gazetted Rail-
way 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
D 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 :

It "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.
F (2) The Railway Services, Class II.
i

Non-gazetted. ~ ..
(3) The Railway Services, Class III.
(4) The Railway Services, Class IV.
G (5) The Workshop Staff.

106. Establishments and categories (including pro-
bationers), falling under the services mentioned in rule
105, are shown below-

H Class I

(1) Posts in the Railway Board;
KATYANI L>AYAL v. UNION (Chinnappa Reddy,!.) 155

(2) Directors, Joint Directors, Deputy Directors, A
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;
.B
·I (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!
c
(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 D
(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

F
• • • • • • •
Class IV

G
•
• • * • • •
' 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.

/
156 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.

c 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 ex-
ceeded, General Managers are empowered to vsry solely
in the public interest having regard to changes in the
D 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".

,B 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
F 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 :-

H (i) Administrative,

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

)
(iii) Assistant Officers and Class II Services. A

•
(b) • * * • • •
(c) The number of posts to be allotted to the Assistant
Officers' grade shall be calculated with reference
j
to the total number of Administrative and District B
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 admi-
nistrative posts, shall be taken into account. c
(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 depart-
ment.

(3) * • * * • •
E
(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-
porary in the grade.
F

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 non-
• gazetted establishment is not permissible. G
Rule 118(1) provides that the number of Gazetted Railway ser-
vants 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.
158 SUPREME COURT REPORTS (1980] 3 s.c.1..

A 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;
c
(b) promotion of specially qualified gazetted railway
servants of the Class II Service including officiating
gazetted railway servants of the service or depart-
ment;

D (c) in the case of Transportation (Power) and Me-
chanical 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.
E
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).
/
F Rule 131 provides that Probationers to the Railway Service Class I
_k.
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.

G Rule 133 deals with promotions to gazetted posts. We are con-
cerned with rule 133(3)(c) and (f) which to tte extent relevant were
previously as follow& :
"133. Promotions to gazetted posts.--·
'
B (I) • • • *
(2) • • •
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
c
months;

(d) (e) • • •

(f) substantively, an Assistant Officer to the District
grade provided such promotions are made in strict D
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.
E
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 con- F
firmation 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 G
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; H
(d) • • • •
160 SUPREME COURT REPORTS [1980] 3 S.C.R.

A (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
c 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.
D 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. I
F
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
G extracted here :
"(31) (a) Time-scale pay means pay 'which subject
to any conditions prescribes in these rules, rises by perio- '
dical increments from a minimum to a maximum. It in-
cludes 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.
KATYAM 11.WAI. v. UNION (Chinnappa Reddy, J.). 161

(c) A post is said to be on the same, time-scale :as A
another post on a time-scale if the two time scales are iden-
• tical 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
B
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 c
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 reser-
D
ved 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 pro-
motion 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 E
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 F
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 G
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.
H
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
162 SUPREME COURT REPORTS U980] 3 S.C.R.

A 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 in- •
cluded in item 70 of the Union List (List I of the Seventh Schedule)
enumerating the matters with respect to which Parliament has the
B exclusive power to make laws. The proviso to Art. 309 of the Consti-
tution 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 condi-
tions 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
c to regulate the recruitment and conditions of service of persons ap-
pointed to public services and posts in connection with the affairs of the
Union.

17. The inevitable sequitur from these Constitutional provisions
D 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 appoin-
E ted 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
G 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
H
(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 neces-
sitating 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 B
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 requisi-
tions made by the Railway Board to the Union Public Service Com-
mission and the correspondence which ensued between the Railway
Board and the Union Public Service commission. It was also made c
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 Assis-
tant Officers in the various Departments of Indian Railways, which
were neither in Class I nor in Class II but merely in gazetted service, D
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 E
referred in paragraph 8 supra.
18. The posts of Temporary Assistant Officers were thus created,
and appointments made, under valid authority and outside the exis-
ting cadres of the Indian Railway Service of Engineers. The letters of
"indent", the advertisements, the letters of appointment and the p
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 Engi-
neers 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 G
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 H
recruitment to the Indian Railway Service of Engineers Class I, we do
not see how any temporary Assistant Officer could possibly be under
164 SUPREME COURT REPORTS {1980] 3 S.C.R.

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
B 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
c 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
f)
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
E
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
F 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
G 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 pur- •
pose of scheme of recruitment of Temporary Assistant Officer which
was to recruit Temporary Assistant Officers outside the existing Service
u 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 A
of projects". It was not mentioned that the posts were already home
on the cadre of the Indian Railway Service of Engineers. Our atten-
tion 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 per- B
manent, 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 tempo-
rary 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
c
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 publi-
shed 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 D
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 Ser-
f vice of Engineers. We were also referred to the reports of the Ad-
ministrative 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 p
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. G

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
166 SUPREME COURT REPORTS (1980] 3 S.C.R.

A relevance. The note merely states an existing fact known to all con-
cerned. 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 desig-
nated the Railway Board as the authority competent to make appoint-
ments to those posts. The note below rule 106 merely stated th.ts fact.
B 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.

c 22. This is perhaps an appropriate stage for referring to the amend-
ments, introduced in 1975, to the Indian Railway Establishment Code.
The expression 'Temporary Assistant Officers', which was not pre-
viously defined in the Railway· Establishment Code, was sought to be
defined by new clause 17 of R. 102 to mean "a Gazetted Railway Ser-
vant drawing pay on the scale applicable to Junior Scale Offices but
D 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 peti-
tioners all of whom bad been appointed as Temporary Assistant Officers
long prior to the 1975 amendment. We do not think that the amend-
ments have any effect one way or the other on the status of the Tem-
porary Assistant Officers. What was always well known to the Tem-
porary 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 intro-
duction 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 ·
G existing definition of 'Assistant !Officer' so as to entitle them for pro-
motion 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
B first time in 1955. The expression was not used to signify officers
temporarily holding the posts of Assistant Officers in the several estab-
lished 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 Assis-
tant Officer. The whole of the expression was intended to describe the B
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 c
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 D
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
E
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, cate-
gory 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 Consti-
tution. 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
168 SUPREME COURT REPO:RTS [1980) 3 S.C.R.

A 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 pla-
ced much higher than them in order of seniority and had risen to much
c 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 com-
D petitive examination or by selection by the Union Public Service Com-
mission. Part of this submission has already been met by us and we
have shown how Temporary Assistant Officers are not Assistant Offi-
cers 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 recruit-
ment 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
G
109(2)(c) of the Indian Railway Establishment Code, extracted earlier
expressly provides that the number of posts to be allotted to the Assis-
tant 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.
ff
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 pro-
motion 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 Engi-
B
neers. 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 c
rules.

25. Next and equally important, is the [fundamental qualitative
differences, linked with the method of recruitment. True, the mini-
mum educational qualification is the same. But, those who are recrui-
ted directly to the Indian Railway Service of Engineers Class I are D
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 perso-
aality 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 E
prescribed. Thus while brilliance was the beacon light which becko-
ned those aspiring to become members of the Indian Railway Service
of Engineers Class J, i~was 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 F
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 Tem-
po1ary Assistant Officers. For the Indian Railway Service of Engi-
neers the training is an intensive and comprehensive one designed to
G
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 H
"Temporary Assistant Officers" to the extent there is no specific
provision in their Jetter of appointment and agreement.
12-J89SC!/80
170 SUPREME COURT REPO'.RTS [1980] 3 S.C.R.

A 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 1mb-
ject to different conditions of service such as promotional opportunities
was.violative of Articles 14 and 16 of the Constitution. The ,argument
based~on 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) :
c "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 Consti-
tution. If this contention had any validity, there could
be no incremental scales of pay fixed dependant on the
D 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
E 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
F
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
u 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, A
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 B
different rules and conditions of service, it might be in-
cluding promotions, would be to impose restraints on the
manner of administration which we believe was not in-
tended by the constitution.'.
Examining the facts of the case before them the Court noticed that the c
two services started as independent services, the qualifications pres-
cribed 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) :
D·
"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
E
would not be a denial of equal opportunity, for it is com-
mon 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 F
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 G
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 hol-
ders having been integrated into a common class of Assistant Engi-
neers, there was no justification for the classification for promotion
to the post of Executive Engineer. The Court upheld the rule and H
held that the classification of Assistant Engineers into degree-holders
(I) (1974] 1 S.C.R. 771 @ 790, 792.
172 SUPREME COURT REPORTS [1980] 3 S,C,R.

A and Diploma-holders could not he said to rest on any unreal or un-
reasonable basis. Classification made with a view to achieving ad-
miniscyative efficiency in the Engineering Service was clearly co-related
to higher educational qualifications since higher educational quali-
fications was atleast presumptive evidence of higher mental equipment. •
Educational qualification was always recognised as a safe criteria for
B 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
c they were recruited from different spurces whereas in the case before .··~.
the Court the classification rested fairly and squarely on the conside-
ration 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 peti-
tioners 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 classi-
fications. Excellence is, or ought to be, the goal of all
'E 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
, F 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) :
G
"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".
H
(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 attain-
ments 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 to~e promoted as Assistant
Engineers, reserves a higher quota of vacancies for pro-
motion for graduate supervisors as against non-graduate
Supervisors, would clearly be calculated to destroy the
guarantee of equal opportunity". D

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 E
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 G
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. H
(!) [1975] l S.C.R. 449, 481.
(2) [1977) 3 S.C.R. 775.
174 SUPREME COURT REPO!l TS [1980] 3 S.C.R.

A '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
B 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
c 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 per-
D sons were directly recruited to the Engineering Service of the Ministry
of Shipping and Transport (Roads Wing) as a result of a written com-
petitive 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
E 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
F 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
G
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". Appoint-
ments to the 'isolated posts' were to be made by selection or promotion,
H as the case may be, on the recommendation of a Departmental Pro- •
(I) [19751 2 S.C.R. 979.
(2) [1979] 4s.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 A
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 exa-
mination, they would rank much below the latter in the list cf seniority
and would consequently be denied promotional opportunities to B
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) : c
" .... We are. unable to suggest the contention that
persons holding similar posts and having similar responsi-
bilities to discharge can be classified into different ca~egories
for the mere reason that some of them were recruited
directly by the interview method and some were recruited D
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
f 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 E
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
F
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 respon-
dents" .
• G
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 justi- H
fication for classifying the various officers of the Roads
Wing into separate categories. As we have stated earlier,

..
176 SUPREME COURT REPORTS [198.0] 3 S.C.R.

A 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 ex-
cadre posts. . ............ But, the fact remains that per-
• sons who were appointed contrary to the rules but to ex-
cadre posts were taken initially for purposes of certain
projects to which we have already referred. Their pre-
carious tenure was continued from time to time but that
will not furnish justification for treating them on the
same footing as others whose appointments were
c made strictly in accordance with the rules and who were
appointed to posts borne on the cadre of the Central Engi-
neering 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
·D 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
E 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
p 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 com-
parables. A necessary, but not necessarily cynical, implication of
equality among comparable is the permissibility of reasonable classi-
fication, having nexus with the object to be achieved. So, it was
said that if two services started and continued dissimilarly, though
G 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
B of Customs, Bombay & Ors.) (supra). This was also the principle of
the decision in S. p. Patwardhan & Ors. etc. etc. v. State of Maha-
rashtra & Ors. (supra). Even so, Chandrachud, J., Krishna Iyer,
r1 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 D
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 im-
parted was also unlike. The very tenure of the Temporary Assistant E
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 Rail- F
way 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 G
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 weigh-
tage as we understand it is in question elsewhere.
B
Though we are denying the claim of the petitioners to equality
because of the history; origin, and structure of the Services and the
178 SUPREME COURT REPORTS [19~0] 3 S.C.R,
/

A existing legal position in relation thereto, we do not wish to be under-
stood 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
B 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.

c S.R. Petition~ dis1ilissed~

I
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