Holding

Officers who have continuously served in the Senior Time Scale for at least five years under temporary appointments must be deemed regular members of Group A Service, and denial of such regularisation violates Article 16.

Summary

The petitioners, permanent Class‑II officers, were promoted to the Senior Time Scale (STS) of the Indian Telecommunication Service Group A under Rule 27(b) of the Telegraph Engineering Service (Class I) Rules, 1965, as temporary officiating appointments between 1975 and 1979 and thereafter served in those posts for 10‑15 years. They claimed that, despite the length of service, they were not treated as regular members of the STS and were denied promotion to the Junior Administrative Grade (JAG), unlike direct recruits who were promoted after much shorter service. The Court examined whether such long‑term temporary appointments could be considered regular and whether the denial of regularisation violated Article 16 of the Constitution. It held that the purpose of Rule 27(b) was to meet short‑term administrative exigencies and could not justify appointments lasting a decade or more; consequently, denying regularisation was arbitrary and unconstitutional. The Court declared that any officer who has continuously held an STS post for at least five years shall be deemed a regular member, entitled to seniority from the completion of that period and to consideration for further promotion, and ordered the Government to create super‑numerary posts to accommodate the petitioners.

Issues considered

Whether officers appointed to the Senior Time Scale under Rule 27(b) as temporary officiating appointments for a period of 10‑15 years can be deemed regular members of Group A Service.
Whether the denial of regularisation and consequent benefits to such officers violates Article 16 of the Constitution of India.
What appropriate relief can be granted to the petitioners without prejudice to the direct recruits already promoted.

Legislation cited

Constitution of Indias. Article 16, s. Article 32

Subjects

service lawpromotionregularisationArticle 16temporary appointmentsenioritytelecommunication servicegroup A servicewrit petitionadministrative law

Judgment

A N.S.K. NAYAR AND ORS.
v.
UNION OF INDIA AND ORS.

DECEMBER 12, 1991

B [K. N. SINGH, CJ AND KULDIP SINGH, J.]

Service Law:

Telegraph Engineering Seryice (Class I) Rules, 1965: rr. 3, 5, 26, 27,
28-Telecommunication Service Group ~enior Time Scale posls-Tempo-
C rary appointments-Continuing for 10-15 years-Claim/or regularisation in
the cadre-Whether can be allowed.

Constitution of India, 1950: 1-
•
Articles 16, 32-Telecommunieation Service Group A-Senior Time
D Scale posts-Temporary appointments-Non-regularisation in the cadre and
deprivation of consequentia~ benefits even after the officers continued on the
posts for 10-15 yearr-Whether violative of Article 16.

The Telegraph Engineering Service (Class I) Rules, 1~65 provide for
E recruitment and conditions of service of Telecommunication Service
Group A. Under Rule 3 of the Rules, Group A Service consists of four
grades-Junior time grade (JTS), senior time grade (STS), Junior Ad-
ministrative grade (JAG) and Senior Administrative grade (SAG). Rules,
5 and 26 provide that·vacan5ies in the-JTS, which is the starting point of
group A service be filled up ·50% by direct recru!tment and _50% by
F promotion from Telegraph Engineering service, Class IL As per rule
27(a), although the vacancies in the next higher grade of STS are to be
filled up on the basis of seniority in the JTS subject to rejection .of unfit,
yet the direct recruits not having completed 5 years, are not ordinarily
eligible to be promoted to STS. However, as the posts in JTS are much less
in number than those in STS, giving the picture of an inverted-pyramid,
G and there are not sufficient vacancies in JTS to accommodate Class II
officers, it was provided by rule 27(b) that posts in STS may be filled up· f-
by promotion of permanent class II officer.s who are on the approved list
for promotion to JTS on purely temporary basis in an officiating capacity
to hold charge. The promotion to JAG is made by selection on merit from
amongst officers in STS promoted under rule 27(a). Further promotion to
H SAG is made by selection on merit from amongst the officers in JAG.

402
N.S.K.NAYAR v. U.OJ. 403

· The petitioners, who were brought on the approved list or JTS and A
were promoted to STS under rule 27(b) on various dates between January,
1975 and January, 1979 and were, except petitioner No. 1, who has since
retired, continuously holding the posts for 10/1~ years, filed the Writ
Petitions under Article 32 ·or the Constitution challenging the promotion
policy in so far as it related to the promotion or officers in STS to JAG
contending that though they were continuing in STS for 10-15 years and B
from a date much earlier than the direct recruits, promoted under rule
27(a), they were not being treated as regular members of STS and were not
being considered for promotion to the next higher grade of JAG, whereas
the direct recruits promoted under rule l7(a) much later and having much
less service than the petitioners bad long been promoted to JAG.
c
On the question; whether the service rendered by the petitioners in
the Senior Time Scale for over a decade entitled them to claim that they
were regular holders or the post in the Senior Time Scale of Group A
service,

Allowing the Writ Petition; this Court, D

HELD: 1. Taking work from the petitioners in the Senior Time Scale
posts for 10/15 years and denying them the right of reguJ!lrisation and the
consequent benefits in the said grade, is wholly arbitrary and is violative
of Article 16 of the Constitution of India~' [p. 408 A]
E'
2. Although the regular channel of promotion to Group A Service
provided to the officers of the Telegraph Engineering Service Class II
under the Rules is to the Junior Time Scale and Rule 27(b) has been
enacted to enable the Government to meet an ad-hoc shortage or officers
and to fill the large number or vacancies in· Senior Time Scale by
appointing Class-II officers with a frog-leap from class-II to STS by- F
passing the JTS, in order to provide a source or appointment to meet an
administrative exigency or short tenure, yet it could never be the intention
.,. or the framers of the Rule to permit the appointments under the said Rule
I
~J
to go on for 10 to 15 years. The appointments· for such a long period cannot
be considered to be purely temporary/officiating or to bold charge.
[407A-H; 408A] G

3. The promotee-officers who have worked in STS for a continuous
period of five years and are continu~usly holding the posts shall be deemed
to be regular members of Group A Service in STS. They.shall be entitled
of
to count their seniority in the STS from the date completing the said
H
period or five years and shall be entitled to be considered for further
promotion to JAG and SAG on the basis or the said seniority. [p. 408 CD]
404 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A However, the petitioners or other officers similarly situated ·who
have already retired shall not be entitled to the benefit of the judgment.
[p. 408 D]

4. The direct recruits who have already been promoted to STS, JAG
or SAG shall not be reverted as a consequence of the judgment. If
B necessary the Government shall create supernumerary posts in STS, JAG
and SAG to accommodate the petitioners and other officers similarly
situated. [p. 408 D-E]

ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 4525-33 of
1985.
c
(Under Article 32 of the Constitution ofJndia).

M.C.Bhandari, Gobinda Mukhoty, Ms. C.K.Sucharita and Y.P.Rao for.
the Petitioners.

D Ms. Shaymla Pappu, K.T.Anantharaman, Kahitan, Murthy, Ms. Kitty
Kumaramagalam and Ms. Sushma Suri for the Respondents.

The Judgment of the Court was delivered by

KULDIP SINGH, J. The petitioners are promotee-members of the
E Indian Telecommunication Service Group 'A' (hereinafter called 'Group A
Service'). They are working as officiating Divisional Engineers in the Senior
Time Scale. The recruitment and conditions of service of the persons appointed
to Group A Service are governed by. statutOry rules called "The Telegraph
Engineering Service (Class I) Rules, 1965 (hereinafter called 'the Rules').
F Rules 3, 5, 26, 27 and 28 which are
relevant are reproduced hereunder:
"3. Composition of the Service: There shall be four grades.in the
Services namely:
(i) Junior Time Scale Rs. 400-400-450-30-600-35-670-EB;.35-.
950.
G ·(ii) Senior Time Scale Rs. 700-40-1100-50/2-1250.
(iii) Junior Administrative Grade Rs. 1300-60,1600.
(iv) Senior Administrative Grade Rs. 1800-100-2000.
5. Filling of vacancies in ihe Junior Time Scale:
H
. N.S.K.NAYAR v. U.Q.I. [KULDIP SINGH, J.] . 405

Fifty percent of the vacancies in the Junior Time filled by competi-
tive examination as provided in Part II of these rules and fifty
percent reserved for promotion as provided in Part III of these
ru~ .

26. Appointment by promotion ·to the junior time scale in the
service shall be made by selection on merit from among officers of
the Telegraph Engineering Service C:ass-II ordinarily with not
less than eight years approved service in Class II on the recommen-
dations of a duly constituted Departmental Promotion Committee
and in consultation with the Commission. The period of probatioq
shall be two years.

27. (a) Appointments to the Senior Time Scale in the service shall
be made by promotions of officers in the Junior Time Scale in the
order of seniority subject to the rejection of the Unit A directly
recruited Assistant Divisional Engineer shall not ordinarily be
promoted as Divisional Engineer unless he has put in five years
service and has passed the prescribed departmental tests.

(b) Posts in the senior time scale, may however, be filled as a
purely temporary measure, in an officiating capacity to hold charge
by the promotion of permanent members of Telegraph EngineerJ
ing and Wireless Service, Class II, who are on the approved list for
promotion to the Junior Time Scale.

28. Appointments to the Junior Administrative Grade in the Serv,
ice shall be made by selection on merit from amongst officers
ordinarily with not less than five years' permanent service in
Senior Time Scale of T.E.S. on the recommendations of a duly
constituted D.P.C." ·

The petitioners who were permanent members of Telegraph Engineering
Service Class II, were promoted to the Senior Time Scale of Group A Servic<1
under Rule 27(b) of the Rules during the period 1975 to 1979. Their appoint-
ment under the Rules was purely temporary in officiating capacity and to hold
charge. It is, however, not disputed that petitioners 2 to 9 are continuously
working in the Senior Time Scale till date. Petitioner No.1 retired, in the yem
1987, from a post in the Senior Time Scale. The question for our consideration
is whether the service rendered by the petitioner~ in the Senior Time Scale for
over a decade entitles them to claim that they are regular holders of the posts
in the Senior Time Scale of Group A Service.
406 SUPREME COURT REP.ORTS [1991] SUPP. 3 S. C.R.

A We may notice the Scheme of the Rules relevant fqr the purposes of the
present petition. Under Rule 3 of the Rules the Group A Service consists of four
••
grades namely, Junior Time Scale (JTS), Senior Time Scale (STS), Junior
Administrative Grade(JAG) and Senior Administrative Grade(SAG). JTS is
the starting point of Group A Service. Rules 5 and 26 provide that the vacancies
in the JTS are to be filled 50% by direct recruitment and 50% by promotion
B from the Telegraph Engineering Service Class-II. Rule 27(a) lays down that the
vacancies in the next higher grade of STS are to be filled on the basis of
seniority in the IT'S subject to rejection of the unfit. Directs recruits in the JTS
are ordinarily not eligible to be promoted to STS .till the time they have put in
five years of service. Rule 27(b) provides that posts in STS may be filled by
promotion of permanent officers of Telegraph Engineering Service Class II
C who are on the approved list for promotion to JTS. Such promotions, under the
Rule, are purely temporary, in an officiating capacity to hold charge. Further
promotion to JAG is made by selection on merit from amongst the officers in
STS. Similarly promotion to the SAG is made by selection on merit from
amongst the officers in JAG.

D It is obvious from the Scheme of the Rules that regular channel of
promotion for the members of the Telegraph Engineering Service Class-II is to
the JTS in Group A Service. Rule 27(b), however, provides that posts in the
STS-which is a grade higher than the JTS-may be filled, as a temporary
measure, in an officiating capacity to hold charge, by promoting members of
E the Telegraph Engineering Service Class II who are on the approved list for
promotion to the JTS. In other words as soon as a member of the Telegraph
Engineering Service Class II is brought on the approved list for promotion to
the JTS he can be promoted to a post in STS without being appointed to a post
in the JTS. The number of posts in JTS is limited whereas the number of posts
in .the next higher grade of STS is substantial: In an affidavit filed by Mr.
F R.Parthasarthy dated January 19, 1988 on behalf of Union of India it has been
stated that total number of permanent vacancies in JTS and STS grades at that
time were 451 and 724 respectively. In the written arguments on behalf of
Union of India it has been mentionep that the number of posts in JTS and STS
on February l, 1985 was 451 and 1146 respectively. Generally the grade
structure in a service is pyramidal in the sense that the number of posts in a
G lower grade are more than that in the higher grade, but on the contrary in Group
A Service the posts in JTS are small in number whereas the number of posts
in STS is large. The structure is that of an inverted-pyramid. It is difficult to
fill all the posts in STS from amongst the officers in JTS and as such there is
an administrative-compulsion to fill the STS posts by promoting the members
of Telegraph Engineering Service Class II. The· posts in JTS being less in
H number there are not many vacancies to accommodate the Class II officers who
N.S.K. NAYAR v. U.O.I. [KULDIP SINGH, J.] 407

are on the approved list for promotion to the said cadre. There is, thus. no
option for the Government but to make appointments under Rule 27(b) of the
Rules.

Petitioner No.I Mr. N.S.K.Nayar was selected in the year 1975 for
promotion to the JTS. He was however, promoted to STS under Rule 27B of
the Rules on July 14, 1975. He continuously worked in STS till June 30, 1987
when he retired from service. Petitioners 2 to 9 were brought on the approved
list for promotion to JTS during the period 1976-78. They were promoted to
the STS on October 21, 1976, October 30, 1976, January 16, 1978, October 30,
1978, October 30, 1978, October 31, 1978, June 27, 1979 and June 27, 1979
respectively. These petitioners are holding the posts in STS to-date. They were
also appointed substantively to JTS during that period but they never held the
posts in the said grade. What emerges is that Petitioner l retired from service
after holding the post in STS for about 12 years and the other petitioners are
holding the posts in STS from 12 fo 15 years. The grouse of the petitioners is
that in spite of holding the posts in STS for such a long period they are not
being treated as regular members thereof. To buttress their claim further it is
stated that the direct recruits with much lesser service have long been promoted
to the higher posts in JAG. For example Mr. Rajesh Wadhwa, respondent No.
5 joined JTS as direct recruit on December 29, 1975. He was promoted to STS
on December 29, 1979 and was further promoted to the JAG on February 22,
1984. The petitioners are not being considered for promotion to the JAG
because.they are not regularised in the cadre of STS inspite of the fact that they
have put in 10 to 15 years of service in• the said grade ..

We have heard learned counsel for the parties at length; It is no doubt
correct that the regular channel of promotion to Group A Service provided to
the officers of the Telegraph Engineering Service Classs II under the Rules is
to the JTS and their promotions under Rule 27(b) are only to meet the
administrative-exigency of short-tenure. We are of the view that Rule 27(b) of
the Rules has been made to enable the Government to meet an ad-hoc shortage
of officers to man the posts in STS. The class II officers have long experience
to their credit and the nature of their work is almost identical to that of the posts
in JTS. The direct recruits to JTS are deputed to work in Class-II posts to
acquire experience. It is also not disputed that a class-II officer who is on the
approved list for promotion is c~mpetent and eligible to work in JTS and STS.
It is in this background that Rule 27(b) has been enacted to enable the
Government to fill the large number of vacancies in STS by appointing Class- ...
II officers with a frog-leap from class-II to STS by passing the]TS. The object
of having Rule 27(b).of the Rules is to provide a source of appointment to meet
an administrative exigency of short tenure. It could never be the intention of
408 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A the framers of the Rule to permit the appointments under the said Rule to go
on for 10 to 15 years. The appointments for such a long period cannot be
considered to be purely temporary/officiating or to hold charge. Taking work
out of the petitioners in the STS posts for 10/15 years and denying them the·
right of regularisation and the consequent benefits in the said grade, is wholly
arbitrary and is violative of Article 16 of the Constitution of Ind~a.
B
-we have given our thoughtful consideration to. the question as to what
relief under the circumstances can be given to the petitioners and other officers
similarly situated. While doing justice to the petitioners. We ·do not wish to
cause any prejudice to the direct recruits. Rule 27(a) of .iie Rules provide that
a direct recruit to JTS shall not ordinarily be promoted to STS unless he has put
C in five years service in JTS. Taking cue from the said Rule we hold that the
promotee-officers who have worked in STS for a continuous period of five
years and are holding the posts to-date shall be deemed to be r~gular members
of Group A Service in STS. They shall be entitled to count their seniority in
the STS from the date of completing the said period of five years and shall be
entitled to be considered for further promotion to JAG and SAG on the basis
D of the said seniority.

We make it clear that the petitioners or other officers similarly situated
who have already retired shall not be entitled to the benefit of this judgment.
We further direct that none of the direct recruits who have already been
promoted to STS, JAG or SAG shall be reverted as a consequence of this
E judgment If necessary the Government shall create supernumerary posts in
STS, JAG and SAG to accommodate the petitioners and other officers \

similarly situated.

The writ petitions are allowed in the above terms with no order as to
costs.

R.P. Writ peti ion allowed.

..,,._