Supreme Court of India
R.L. BANSAL AND ORSversusUNION OF INDIA AND ORS.
- Citation
- 1992 INSC 153
- Decided
- 8 May 1992
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
Rule 4 of the Central Public Works Department Assistant Engineers (Confirmation and Seniority) Rules, 1979 (as amended 1982), insofar as it predicates seniority of engineers appointed on or after 22 December 1959 on the date of their confirmation, violates Articles 14 and 16(1) and is void.
Summary
The petitioners, Assistant Engineers in the Central Public Works Department, challenged the 1979 (amended 1982) Rules that made seniority for engineers appointed after 22 December 1959 depend on the date of confirmation, arguing that this classification unfairly disadvantaged promotees and violated Articles 14 and 16(1) of the Constitution. The Court examined whether rules framed under the proviso to Article 309 could be struck down on grounds of unreasonableness and whether the retrospective application of the rules was constitutionally valid. Relying on earlier decisions, the Court held that the rules were discriminatory because they treated equally placed officers differently without any rational basis. Consequently, Rule 4 of the 1979/1982 Rules was declared void, and seniority was ordered to be determined on the same basis as for appointments before the cut‑off date. The writ petition was allowed, directing the government to apply the pre‑1959 method of seniority determination.
Issues considered
- Can rules made under the proviso to Article 309 be invalidated on the ground of unreasonableness?
- Does Rule 4 of the 1979 (amended 1982) Rules, which bases seniority on the date of confirmation for appointments after 22 December 1959, violate Articles 14 and 16(1) of the Constitution?
- Is the classification of promotees versus direct recruits under the 1979/1982 Rules discriminatory and hostile?
- Is the retrospective effect of the 1979/1982 Rules constitutionally permissible?
- Should seniority for all Assistant Engineers be determined uniformly on the basis of appointment date?
Legislation cited
- Constitution of Indias. Article 14, s. Article 16(1), s. Article 309
Subjects
seniorityconfirmationpublic service rulesArticle 14Article 16discriminationlegislative competenceArticle 309Central Public Works DepartmentAssistant Engineersretrospective legislation
Judgment
R.L. BANSAL AND ORS. A
+ v.
UNION OF INDIA AND ORS.
MAY 8, 1992
[KULDIP SINGH AND B.P. JEEVAN REDDY, JJ.] B
Central Public Works Department Assistant Engineers (Central En-
gineering Service and Central Electrical Engineering Service) Group 'B' (Con-
finnation and Seniority) Rules, 1979: Rules 4 and 5 (As amended by 1982
Rules }-Constitutional-Validity of. c
•
- Central Engineering Service--C.P. W.D.-Assistant Engineers-Direct
recrnits and promotees-Confinnation-Detennination of seniority-Rule 4 in
so far as it predicates detennination of seniority based on date of confinnation
"' held violative of Articles 14 and 16( 1).
D
Central Engineering Service, Class II Recrnitment Rules, 1954-Part·
II-Rules 3,4,5,.
Central Engineering Service Class II Recruitment (Amendment) Rules,
1976 and 1978.
E
~ Constitution of India, 1950: Article 309:
Proviso-Rules framed under-Held legislative in character-Can be
strnck down only on the grounds upon which a legislative measure can be
strnck down.
F
The Central Engineering Service Class II Recruitment Rules, 1954
~ provided for four methods of appointment to the catagory of Assistant
;
Engineers in the Central Public Works Department, viz., (i) by competitive
examinations to be conducted by Union Public Service Commission • Rule
3(a); (ii) by direct appointment, i.e. selection from amongst temporary
engineers and temporary Section Officers employed on the civil engineer- G
ing side of the C.P.W.D. after consultation with the Union Public Service
A~ Com~ission ·Rule 3(b); (iii) by promotion, i.e. by selection on merit from
am~ngst permanent Section Officers employed in the Civil Engineering
side ofthe C.P.W.D. • Rule 3(c); (iv) by transfer· Rule 3(d). From time to
time appointments to the category of Assistant Engineers were made from H
133
134 SUPREME COURT REPORTS (1992) 3 S.C.ll.
A different sources. Since a particular method of confirmation was followed,
some of the temporary Assistant Engineers, who were directly appointed
under Rule 3(b), filed a Writ Petition in Delhi High Court challenging the +
confirmation procedure stating that the other Assistant Engineers .
recruited by competative examination under Rule 3(a) as well as those
directly appointed under Rule 3(b) and appointed subsequent to them
13 have been confirmed leaving the petitioners unconfirmed. The High Court
allowed the petition by directing that the petitioners be considered for
confirmation and their inter se seniority faxed accordingly.
)_
· Subsequent to the judgment of the lligh Court, ·the Central Govern-
c ment prepared a seniority list of Assistant Engineers in 1972 which was
based on the date of appointment/promotion and communicated to all
concerned inviting objections thereto. However, before the said seniority
list could be finalised, the decision of the Delhi High Court was challenged --
before this Court; it was upheld by this Court. After the judgment ·or this
Court, the 1954 Rules were amended in 1977 and again in 1978. The
D Central Government than promulgated Central Public Works Department
Assistant Engineers (Central Engineering Service and Central Electrical
Service) Group '8' (Confirmation and Seniority) Rules, 1979 with
retrospective effect from 1954. These rules, which prescribed the mode of
determination of seniority of Assistant Engineers, were extensively
E amended in 1982.
..l.-
The effect of the amended Rules was that the Assistant Engineers
who were appointed by direct recruitment froro amongst temporary en-
gineers and Section Officers after consultation with the Union Public
F Service Commission were sought to be treated as promotees. Persons
appointed under 3(a) were treated as appointed against permanent posts
of Assistant Engineers and were given prior claim for confirmation. Ap-
pointments made prior to 22nd December, 1959 and those made after this
date were to be treated differently for. the purpose of confirmation. The
Assistant Engineers appointed before 22nd December, 1959 were to be
G confirmed in the order of their seniority. But in the case of appointments
made subsequent to 22nd December, 1959, the Assistant Engineers
recruited against perman~nt posts· were first to be confirmed en bloc
against pern'lanent vacancies in that year and thereafter Assistant En- ~·
gineers recruited against temporary posts and those promoted from lower
H posts were to be confirmed against permanent vacal!cies available in that
j
R.L BANSAL v. U.0.1. 135
+- year by continuous interspersing of one promotee and one direct recruit A
appointee against temporary post till the permanent vacancies of that year
exhausted.
Giving effect to the 1979 Rules a fresh seniority list of Assistant
Engineers was prepared. The petitioners filed a Writ Petition in this Court
challenging the validity of 1979 R!Jles and for quashing the 1979 seniority B
list and restoration of 1972 list alleging that by virtue of 1979 seniority
rules, the promotees have been relegated to far lower positions in seniority
as compared to their position in 1972 list.
Allowing the petition, this Court, c
HELD: 1. Rules made under the proviso to Article 309 of the Con-
stitution being legislative in character cannot be struck down merely
·,-.. because the Court thinks that they are unreasonable. They can .be struck
down only on the grounds upon which a legislative measure can be struck
down. (154 G] D
B.S. Vadera v. Union of India, A.l.R. 1969 S.C. 118; B.S. Yadav v. State
of Haryana, A.l.R. 1981 S.C. 561, referred to.
2. Rule 4 of the Central Public Works ~partment Assistant ·En·
gineers (Central Engineering Service and Central Electrical Engineering E
Service) Group '8' (Confirmation and Seniority) Rules, 1979 (as amended
by the Central Public Works Department, Assistant Engineers (Central
Engineering Service and Central Electrical Engineering Service) Group '8'
(Confirmation and Seniority) Amendment Rules, 1982, insofar as it predi-
cates the seniority of Assistant Engineers, appointed on or after December F
---i, 22, 1959, on the date of their confirmation, is violative of the fundamental
rights guaranteed to the petitioners and other similarly placed Assistant
Engineers by Articles 14 and 16(1) of the Constitution of India and
accordingly held to be inoperative and void. (157 -D·E)
3. The cadre, it is admitted, consists of both permanent and tem- G
porary members. The Rules do not say that promotees shall not be
appointed against permanent posts or that they shall be .appointed only
against temporary posts. It is true that generally direct recruitment is
made only against permanent vacancies whereas promotions may be made
both against permanent as well as temporary vacancies. But in this service, H
136 SUPREME COURT REPORTS [1992) 3 S.C.R.
A it is clear from "the Rules themselves that even direct recruitment is made +
against temporary posts. There is no distinction between the four erstwhile·
categories mentioned in unamended Rule 3 or the Central Engineering
Service, Class II Recruitment Rules, 1954. All the four sources were equal
• quality-wise. Neither was superior to the other. They could be appointed
both against permanent as well as temporary posts. In these circumstan·
B ces, bringing in new concepts of "Assistant Engineers recruited against
permanent posts", and "Assistant Engineers promoted from the lower
ranks" through the 1979 Rules, as amended by 1982 Rules, and treating
the latter category unfavourably on that basis vide Rules 4 and 5 or
1979/1982 Rules, is a clear case of hostile discrimination. (155 B·F]
c
4. The entire course or amendments and new Rules appears to be
designed to undo the effect orthe Judgment of the High Court with retrospec;.
tive effect. Not only the classification has no basis in the Rules • or in the.
factual ~ituation • it is unreasonable and unjust; it is also unrelated to the ~
object· the object being efficiency of administration. (155 H, 156-A]
D
5. The formula contrained in Rule 5 of1979 Rules (as amended in 1982)
is devised to govern the order or confirmation. This very rule 'is dis-
criminatory inasmuch as it seeks to treat equals unequally, to the prejudice
of what is now compendiously called, the class of "Promotees". (157 ·CJ
E 6. The seniority or Assistant Engineers appointed on or after Decem·
ber 22, 1959 shall be determined on the same basis and in the same manner
as it is determined in the case of Assistant Engineers appointed prior to
the said date. (157 -F]
F S.B. Patwardhan and Anr. v. State of Maharashtra and Ors., A.I.R. 1977
S.C. 2051, relied on.
Jagmal Singh Yadev v. M. Ramaya, A.I.R.1977 S.C.1474, referred to.
ORIGINAL JURISDICTION: Writ Petition (C) No. 1438of1981.
G
(Under Article 32 of the Costitution of India.)
Vijay K. Jain, Baldev Atreya and S. Shekhar for the Petitioners.
V.C. Mahajan, Ms. Saria Chandra, V.K. Verma and Ashok Bhan for
H the Respondents.
R.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.) 137
Ashok Grover (NP) for the intervenor. A
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J. This writ petition is an instance of the
classic dispute between promotees and direct recruits. The writ petitioners
are Assistant Engineers. in the Central Engineering Service-Class III B
(Gazetted Officers) in the Central Public Works Department (C.P.W.D.}.
Appointment to the category of Assistant Engineers' service is governed
by the Central Engineering Service, Class-II Recruitment Rules, 1954
(hereinafter referred to as '1954 rules'). These rules are divided into six
parts. Part I is general. It contains the interpretation clause. Part-II deals C
with the method of recruitment. Rules 3 to 5, relevant for our purpose
occur in this part. The Rules before their amendment in 1977 and 1978
read as follows:
"3. Recruitment to the Service shall be made by any of the
following method:- D
(a} By competitive examination in India in accordance with Part
III of these Rules.
(b) By direct appointment in accordance with Part IV of these
Rules of persons selected in India otherwise than by com- E
petitive examination.
(c) By promotion in accordance with Part V of these Rules.
( d) By transfer in accordance with Part VI of these Rules."
F
"4. (a) All appointments to the service or to posts borne upon
the cadre of the Service shall be made by the Government.
(b) No appointment shall be made to the Service or to any post
borne upon the cadre of the Service by any method not G
specified' in Rule 3.
(c) Subject to the provisions of sub-~ule (b}, the method or
methods of recruitment to be employed for the purpose of
filling any particular vacancies in the Service or such vacan-
cies therein as may be required to be filled during any H
138 SUPREME COURT REPORTS (1992) 3 S.C.R.
A particular period and the number of candidates to be +
recruited by each method shall be determined by the
Government.
5. Appointments to the Service made otherwise than by promo-
tion will be subject to orders issued from time to time by the
B Ministry of Home Affairs regarding special representation in
the Services for specific sections of the people."
Rule 3 thus provided for four methods of appointme~t namely, (a)
by competitive examination held in accordance with Part III of the said
C rules, which means an examination conducted by the U.P.S.C Rule 21
which occurs in Part III provides that the candidates selected under this
part shall be appointed as Assistant Engineers on probatio.n for two years
and if considered fit for permanent appointment, they will be confirmed in
-
their appointments; ~--
D (b) by direct appointment in accordance with Part IV of these Rules
i.e., otherwise than by competitive examination. Rule 23 occurred in Part
IV_ Recruitment by selection under this rule was to be made "from among
temporary engineers and temporary section officers employed on the civil
engineering side of the Central Public Works Department after consult-
E ation with the Commission." The proviso to Rule 23(1), however, provided
that it is not necessary to consult the commission in the case of any person,
if the commission were consulted in connected with his temporary appoint-
ment to the service. The eligibility criteria is the same as is provided for
appointment under method (a) except in the matter of age. The age of the
candidate should not be more than 40 years; .
·-
F
(c) by promotion in accordance with Part V. Rule 24 is the only rule
occurring in Part V. It reads "recruitment by promotion shall be made by
selection on the basis of merit from among permanent section officers
employed in the civil engineering side of the Central Public Works Depart-
G ment." ·
(d) by transfer in accordance with Part VI of the said rules. Part VI
again contained a solitary rule - Rule 25. We need not refer to this Rule
since it is not relevant for our purpose.
H Rule 4 provided that no appointment shall be made to the service
R.L. BANSAL v. U.O.I. [B.P. JEEVAN REDDY, J.] 139
+ except in the manner prescribed by Rule 3. Clause (c) of Rule 4, however, A
empowers the Central Government to determine the number of candidates
to be recruited by each method, among other matters.
After the coming into force of 1954 Rules, appointments were being
made from different sources from time to time. In the matter of confirma-
tion, however, the authorities followed a particular method which gave rise B
to discontent and disquiet among certain sections leading to the filing of a
-i writ petition in the Delhi High Court, being Civil Writ Petition No.238 of
1%9. It is necessary to briefly notice the facts of this writ petition and the
principles enunciated by the Full Bench of the Delhi High Court while
- disposing it, as also the decision of this court on appeal reported as Jagmal c
Singh Yadav v. M. Ramaya A.l.R. (1977) S.C. 1474. Writ Petition No.238
of 1969 was filed by 12 Assistant Engineers who were appointed as Assis-
tant Engineers on various dates between 18th October, 1958 and 8th
'"'- January, 1%3 to officiate temporarily until further orders. The respondent
Nos. 1; 2 and 3 to the writ petition were the Union of India, U.P.S.C. and
another official respondent. Respondents 4 to 51 were recruited directly D
under clause (a) of Rule 3 read with Part III i.e., by competitive examina-
tion held by U.P.S.C., while respondents 62 to 99 were recruited directly
under clause (b) of Rule 3 read with Part IV i.e., in consultation with the
U.P.S.C. but otherwise than by holding competitive examination. The case
_....._
of the petitioners was that prior to their appointment as Assistant En- E
gineers they were working as temporary section officers in C.P.W.D. (in
the subordinate engineering services, Class-III Non-gazetted) and that they
were appointed as Assistant Engineers in accordance with clause (b) of
Rule 3 read with Part IV of 1954 Rules. Their grievance was that though
respondents 4 to 99 were appointed subsequent to them, they have been
confirmed in the category of Assistant Engineers leaving the writ F
-~ petitioners unconfirmed. They submitted that they were entitled to be
confirmed prior to or at any rate along with the said respondents. On
behalf of the respondents, it was submitted that the writ petitioners therein
were not appointed under clause (b) pf Rule 3 read with Part IV but under
clause (c) of Rule 3 read with Part V. It was also submitted that the writ G
petitioners were appointed "to officiate temporarily and until further or-
/".
ders" as Assistant Engineers and, therefore, they cannot claim parity with
respondents 4 to 99. The writ petition was heard by a Full Bench o~ the
Delhi High Court which allowed the writ petition in the following terms:
H
140 SUPREME COURT REPORTS [1992) 3 S.C.R.
A (1) The writ petitioners were, and must be deemed to have been,
appointed under clause (b) of Rule 3 read with Part IV and not under +
clause (c) of Rule 3 read with Part V. At the time of their appointment,
they held the same qualifications as the respondents.
(2) That the petitioners in the said writ petition and other persons
B similarly situated like them, who had jcined the service earlier, should be
confirmed first according to the dates of joining the service as Assistant
Engineers, after giving weightage, in preference to !he respondents therein.
(3) That there was no final determination of quota as contemplated
by Rule 4(c) between the four methods/sources of recruitment specified in
c Rule 3. Fixation of quota was a matter still under consideration of the
Central Government but no final decision was taken till the rendering of
decision by the High Court.
-
(4) The writ petitioners did not really question the validity of the ~
D appointment of any of the respondents 4 to 99 but only the validity of their
confirmation. It is, however, not necessary to set aside their confirmation
for giving relief to the writ petitioners in the circumstances of the case. The
operative portion and the direction issued by the High Court is better to
put in their own words:
E "For the foregoing reasons we hold that the petitioners were ~
appointed as temporary Assistant Engineers rule 3(b) read with
part IV (rule 23) and were entitled to be considered for
confirmation as Assistant Engineer when many of the respon-
dents were confirmed. Since they were not so considered it -;:--
F would normally follow that the confirmation of the said respon-
dents will have to be set aside if the vacancies available at the
relevant time were less than the eligible persons including the ~
petitioners and the confirmed respondents. We have already .,,.
pointed out that Mr. Gopal Krishan stated before us on behalf
of the petitioners that they do not question the validity of the
G appointment of any of the respondents Nos. 4 to 99 but that
the petitioners question the validity of the confirmation of those
of the respondents who · have been confirmed. However we ."'(
consider that it is not necessary to set aside the said confirma-
tion of the following reasons: Mr. Gopalan Krishanan stat<:_d
H before us that out of the sanctioned No. of post of Assistant
R.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.) 141
Engineer, a large number of posts have remained vacant and A
they will be more than sufficient to accommodate the
petitioners in case they are confirmed. The correctness of this
statement was not disputed by the counsel for the respondent.
In other words there are a sufficiently large number of vacant
posts for accommodating the petitioners if they are considered B
and confirmed. It is thus not necessary and we are not inclined
to disturb the existing situation by setting aside or questioning
the confirmation of these respondents who have been con-
firmed.
In the result, we allow the writ petition partly and direct the C
respondents (1) to (3) to consider the petitioner for confirma-
tion as Assistant Engineer, and to adjust the inter se seniority
of such of the petitioners as might be confirmed after con-
sideration and the respondents in accordance with law.
In the circumstances of the case we direct the parties to D
bear their own costs in the writ petition."
No appeal was preferred against the said judgment by the Union of
India. However, one of the contesting respondents viz., respondent No.51
in the writ petition approached this Court questioning the correctness of E
the said decision. This court, in the decision referred to above, agreed with
the High Court that the writ petitioners in the said writ petition must be
deemed to have been appointed under Rule 3(b) read with part IV of the
- Rules inasmuch as the Committee which selected them was presided over
by a member of the U.P.S.C. This court also agreed with the High Court
that there was no final determination by the Union of India on the question F
..J... of inter se quota as between the four sources/channels of recruitment
specified in Rule 3. Accordingly, the appeal was dismissed. While dismiss-
ing the appeal, this court made the following observations in the penul-
timate para of its judgment:
"Before parting with the records we consider it proper to point G
out that persons entering Government service have the right to
/"'. know where they stan.d with regard to their conditions of service
and future promotion. Since there is no impediment in the way
of the Government to make appropriate rules regarding con-
ditions of service, even retrospectively, subject to constitu- H
142 SUPREME COURT REPORTS [1992] 3 S.C.R.
A tionality, keeping in view justice and fair play to all concerned, +
it is a sorry sight to find that officers in the same Service fight
over the years in courts having failed to get redress from the
Government. When officers are qualified to hold certain posts
after- recruitment, acr.ording to rules, and they have put in a
number of years, without break, in the service to the satisfaction
B of the authorities, it is impermissible to invoke a recondite rule
and call it in aid to deprive a large section of officers of the
benefit of otherwise satisfactory service. The matter may be
different when posts in the Service are abolished, appointments
-
to the Service are transitory or fortuitous or incumbents are
c found unsuitable for absorption. The history of this Service is
that temporary posts are first created and then after some years
they are converted into permanent posts. The Government,
therefore, cannot merely be an on-looker where it could rightly
claim to be a legitimate arbiter on its own authority and having
proper regard to all just claims. We also cannot held feeling
D
that thinking in the Ministry has not always been uniform,
sympathy warning or waxing from time to time for reasons not
always manifest."
The petitioners in C.W.P.238/69, it may be noted, were not
E promotees. They contended - and which contention ~as upheld by the
Delhi High Court and this court - that they are direct recruits having. been
appointed upder Rule 3(b) read with part IV of 1954 Rules. Respondents
4 to 99 to that writ petition were also direct recruits - some of them having
been appointed under Rule 3(a) read with part II and the others under
F Rule 3(b) read with part IV. It was thus not a dispute between promotees
and direct recruits - as the Rules then stood - but as between two categories
of direct recruits. In fact, a large number of respondents appointed under
Rule 3(b) were in the same position as the writ petitioners therein. The
Respondents, no doubt, had contended that the writ petitioners therein
were promotees appointed under Rule 3(c) read with part V but that
G contention was rejected.
After the judgment of the Delhi High Court in writ petition No.238
of 1969 (in November, 1971) the Central Government prepared a seniority
list of Assistant Engine~rs in the year 1972, based on the date of appoint-
H ment/promotion, and co111municated to all concerned inviting objections, if
R.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.J 143
any, thereto. Before the said provisional seniority list could be finalised, A
-+-- this court rendered its decision in the appeal on 6th January, 1977. Now
what happened after the pronouncement of the said judgment by this court
is very significant.
On 17th January, 1977, the Central Government {President) issued
GSR 168 amending the 1954 Rules called Central Engineering Service, B
Class II, Recruitment (Amendment) Rules 1976. By clause (b) of Rule 2
of these Amendment Rules, Rule 24 was subsitituted altogether. After its
substitution, Rule 24 reads as follows:
"24. Recruitment by promotion shall be made c
...: (i) 50% by selection ~n the basis of merit from among per-
manent Junior Engineers employed on the Civil Engineer-
ing side of the Central Public Works Department; and
(ii) 50% by selection from among Junior Engineers employed D
on the Civil Engineering side of the Central Public Works
Department, after consultation with the Union Public Ser-
- vice Commission on the basis of a limited Departmental
Competitive Examination which shall be held in accordance
with the rules to be made by the, Central Government, after
consultation with the Union Public Service Commission."
E
--\_
It may be noted that Rule 24 10 part V was relatable to clause ( c) of
Rule 3, which dealt with promotion. Now, by virtue of the above amend-
ment, the category covered by clause (b) of Rule 3 was sought to be
brought within the purview of Rule 24, without correspondingly amending F
Rule 23 or Rule 3(b). In other words, the Assistant Engineers who were
_J_ appointed by direct recruitment from among temporary engineers and
temporary section officers after, consultation with Public Service Commis-
sion were sought to be treated as promotees. Evidently, the above amend-
ments were issued in some haste without a proper scrutiny which is evident
from the fact that only Rule 24 was amended without correspondingly. G
amending other Rules in the 1954 Rules. When this was realised, it is
evident, the Central Government came forward with yet another set of
amendment Rules contained in GSR 418 dated 8th March, 1978. Now, by
------
these Amendment Rules (1978 Amendment Rules) Rule 3 was substituted
altogether. Instead 6f four chan_nels/sourcesfmethods of'.recruitnient, they H
144 SUPREME COURT REPORTS (1992) 3 S.C.R.
A became only two viz., direct recruitment and promotion. As substituted,
Rule 3 read as follows: · -+
"3. Recruitment to the service shall be made by way of W.e.
following methods:-
B (a) by competitive examination in India in accordance with Part
lli of these Rules.
(b) by promotion in accordance with part IV of these Rules." .'}_
To be consistent with the amendment to Rule 3, certain other amend-
C ments were also made. They were:
(a) part IV containing Rule 23 was omitted;
(b) part V and Rule 24 therein were renumbered as part IV
and. Rule 23 respectively; and
D
(c) part VI containing Rule 25 was omitted.
Similar amendments were made with respect to Electrical Engineer-
ing Service.
E
The net effect of the 1977 and 1978 amendments was this:
(i) only the Assistant Engineers recruited in accordance with
unamended clause (a) of Rule 3 (also clause (a) of RUie 3 after
amendment). read with part III were to be treated as direct
F recruits.
(ii) recuitment by transfer as provided earlier by clause ( d) of .)...._ _
Rule 3 read with part VI was deleted altogether; and
(iii) Assistant Engineers appointed under clause (b) read with
G Rule 23 (part IV) and those appointed under clause (c) read
with Rule 24 (part V) were clubbed together and called/treated
as promotees with equal quota as. between them. It is worth
recalling that clause (b) of Rule 3, as it stood before the said
Amendment, expressly termed those appointed thereunder as
H direct recruits.
R.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.) 145
The matters did not stop there. Purporting to draw inspiration from A
the observations contained in the penultimate para of the judgment of this
court in A.l.R. 19n S.C. 1474, the Central Government framed a new set
of rules ·called "Central Public Worlcs Department Assistant Engineers
(Central Engineering Service and Central Electrical Service) Group B
(confirmation and seniority) Rules, 1979." Though these rules were issued B
in January, 1979 they were given retrospective effect from 21st May, 1954
i.e., the date oli which the 1954 Rules were brought into force. Since the
validity of these rules - as amended in 1982 - is the main issue in this writ
petition it would be appropriate to notice these Rules. Rule 2 is the
definition clause. Clause (a) defines the expression "appointed day'' to
mean 21st May, 1954. The expression "Service Rules" defined in Clause (b) C
refer to the 1954 Rules. Sub-rule (2) of Rule 2 says that the words and
expressions not defined in this rule shall .carry the same meaning as is
assigned to them in the service Rules. Rule 3 provides that every member
of service whether appointed by direct recruitment, by promotion or by
transfer shall be on probation for a period of two years unless the period D
of probation has already been approved by the Government under Service
Rules. Rules 4 and 5 which dealt with confirmation and seniority respec-
tively constituted the central theme of these rules. It is, however, not
necessary to set out these Rules inasmuch as they have been totally
substituted in 1982. Suffice it to state that Seniority was to be determined
with reference to the date of confirmation and the date of confirmation E
was determmed in a particular manner, to be elaborated hereinafter - and
not with reference to the date of appointment or date of promotion, as the
case may be. Actually, the purport of the Rules remains the same even
after amendment. Even so, it would be sufficient if we refer to Rules 4 &
5 as substituted in 1982. But before we refer to 1982 Amendment Rules, F
which were framed and issued after the filing of the writ petition, it is
necessary to refer to a few more facts as also to the pleadings to the parties.
Giving effect to the 1979 Rules, a fresh provisional seniority list of
Assistant Engineers was prepared and communicated to the persons con-
cerned. The revised provisional seniority list is referred hereinafter as 1979 G
provisional seniority list. It is on receipt of the said seniority list that the
four petitioners _herein have come forward with the present writ petition.
The petitioners submit that the 1979 Rules are arbitrary, unreasonable and
discriminatory and tha~ they have been deliberately so framed as to
prejudice the seniority position of the promotees. They submit that the H
146 SUPREME COURT REPORTS (1992) 3 S.C.R.
A 1972 provisiona'I. seniority list was correctly prepared in accordance with
the decision of the Delhi High Court and that the 1979 Rules have been
so designed as to undo the effect of the Judgments of this Court and Delhi
High Court. By virtue of the 1979 seniority Rules, the promotees have been
relegated to far lower positions ·in seniority as compared to their position
obtaining in 1972 list. The direct recruits on the other hand have gained
B enormously vis-a-vis the 1972 list. By way of illustration, the petitioners
have cited two instances: One is that of Sri R.M. Agrawal who is a direct
recruit (temporary) vis-a-vis Shri A.N. Kapoor, a promotee. In the 1972 list
their position was 1033 and W7 respectively whereas in the 1979 seniority
list their position is 623 and '624 respectively. In other words, whereas a
C direct recruit (temporary) bas come up from 1033 to 623, the promotee
has gone down from 207 to 624. Another instance cited is that of Sbri G.S.
Mittal, direct recruit (temporary) vis-a-vis Shri S. Doraiswamy, promotee.
In the 1972 list, their position was 1094 and 236 respectively which has
become 691 and 692 respectively in the 1979 list. Inasmuch as this situation
D has been brought about by virtue of the 1979 Rules, the petitioriers' main
attach is directed against the said rules, particularly insofar as they provide
that seniority of Assistant Engineers shall be determined with reference to
and shall depend upon their date of confirmation. The petitioners say that
seniority does not and should not be made to depend upon the date of
confirmation. The reliefs sought for in the wrii petition are (a) to strike
E down the 1979 rules (b) to quash the 1979 provisional seniority list and (c)
to restore' the 1972 provisional seniority list. It is evident that reliefs (b)
and (c) are more or less consequential to relief (a). The main question
before us is the validity of the 1979 rules and in particular the rule which
predicates seniority on the date of confirmation. If the said rules are found
F to be good, question of quashing the 1979 provisional seniority list or
gestoring the 1972 provisi_onal seri.iority list does not arise. Moreover, the
impugned 1979 list is also a provisional list and yet to be finalised after
considering the objections received in that behalf. We shall, therefore, have
to confine our attention to the validity of the Rules, rather than the
correctness of the provisional seniority list prepared on the basis of the
G Rules.
In the counter-affidavit filed by one Shri Jagdish Prasad, Dy. Direc-
tor (Administration) in the office of Director General (Works), C.P.W.D., '*-
New Delhi, it is submitted that though the 1972 provisional seniority list
H was prepared on the basis of the judgment of the Delhi High Court, the
R.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.] 147
matter was thoroughly re-examined after the decision of this Court in A
Jagmal Singh and the 1979 Rules were issued after consulting the Law
Department and keeping in view all the relevant facts and circumstances
of the case. It is submitted that the judgment of this court aforesaid
impliedly concedes the existence of a nexus between confirmation arid
seniority. The Rules are perfectly just and valid. The 1972 seniority list, it
is submitted, was also a provisional one and before it could be finalised,
B
the 1979 Rules were promulgated by the President of India, with retrospec-
tive effect from 1954, which Rules prescribed the mode of determining the
seniority of Assistant Engineers. Accordingly, a new revised seniority list
was prepared. It is submitted in para 20 "that the appointees under Rule
3(b) have been selected for appointment by the same Departmental C
Promotion Committee which have considered the question of promotion
of officers as Assistant Engineers under Rule 3(c). By clubbing them
together the persons appointed under Rule 3(b) are not at a disad-
vantageous· position. Direct recruits who have come against permanent
posts are a distinct group." It is also submitted that "both the temporal')' D
appointments under Rule 3(a) and promotees under Rule 3(b) and (c)
have been treated alike in the Rules by giving them 1:1 ratio." Another
relevant statement made in the counter-affidavit is that "the cadre consists
of both permanent and temporary officers." It is submitted that the persons
appointed against the permanent posts have a prior claim for confirmation
over those appointed against temporary posts. E
It was brought to our notke that after the filing of the writ petition
the 1979 Rules have been extensively amended in the year 1982 with
.. retrospective effect from 21st May, 1954 and another fresh provisiona1
seniority list has been prepared and communicated on basis of the 1979 F
Rules as amended 1982. For a full and complete disposal of the dispute,
we thought it necessary to take notice of the 1982 Amendments and the
revised provisional seniority list prepared on that basis. Actually these
amendments were brought to our notice only in the written submissions,
which were filed after the cl~se of arguments. In this view of the matter,
we directed the matter to be' posted for further hearing, on which occas- G
sion, the counsel for petitioners
I
brought to our notice not only the 1982
Amend~ents but also the 1976 and 1978 Amendments referred to hen::in·
before. We have takeQ notice of all these Amendments in the interest of
l\\~tict md with a view to do effective justice between the parties. (The
only respondents to the writ petition are the Union of India, Director H
148 SUPREME COURT REPORTS (1992) 3 S.C.R.
A General of Works and U.P.S.C. ·No other group or any of its members are
impleaded). -+-
The reason for promulgating the 1982 Amendments is stated in the
explanatory Memorandum accompanying the Amendments. It reads:
B
"In the Central Public Works Department, Assistant Engineers
(Central Engineering Service) Group 'B' (CoDfumation and
Seniority) Rules, 1979, which had been given retrospective
effect from the 21st May, 1954, the definitions of ·Assistant
)-
Engineers appointed by different methods had not been given.
c This amendment has necessarily to be given retrospective effect
from the same date as the original rules. In the Civil Appeal
No.1260 of 1973 - Shri Jagmal Singh Yadav v. Ramayyah &
Others - the Supreme Court had also obser\red that there was
-
no impediment in the way of the Government to make ap~
-~
D propriate· rules regarding conditions of service, even retrospec-
tively subject to constitutionality and keeping in view justice
and fair play to all concerned.
2. The Central Engineering Service Class II Recrwtment Rules
. and the · Central Electrical Engineering Service Class II,
E Recrwtment Rules, do not contain the principles for determin- ).-...
ing the seniority of officers appointed to the grade of Assistant
Engineers through different methods except Direct Recrwt-
F
ment. No special orders were also issued by Government in the
past laying down any such principles. Therefore, the officers
appointed to these services are deemed tQ be governed by the
-·-
general principles of seniorify issued by the Ministry of Home
Affaires in their office memorandum No.30/44/48-Apptt. dated ;..__ _
the 22nd June, 1949 and No.9/11155-RPS dated the 22nd
December, 1959 respectively, according as to whether they
were appointed to the service prior to the 22nd December, 1959
G or on or after that date. The .present. amendment seeks lo
incorporate these principles, to the extent possible' and prac-
ticable, in the Ce~tral Public Works Department, Assistant _A_
Engineers (Central Engineering Service and Central Electrical
Engineering Service) Group 'B• .(Confirmation and Seniority)
H Rules, 1979, since the principles have to be- applied for deter-
R.L. BANSAL v. U.0.1. (B.P. JEEVAN REDDY, J.) 149
mining the. seniority of officers appointed to the service in the A
past also, these have.necessarily to be given retrospective effect
from the date of the Constitution of the service, viz., the 21st
May, 1954. The proposed amendment, according to Govern-
ment will be equitable, fair and just to all groups of Assistant
Engineers in the Central Public Works Department."
B
The 1982 Amendments have not only subsituted Rules 4 & 5 but also
added certain definitions in Rule 2(1). Further, for the reasons set out in
the Explanatory Memorandum, a cut-off date - if it can be so described
for the sake of convenience - is prescribed. It is 22nd December, 1959.
Appointments made prior to this date and those made after this ciate ate C
dealt with on different footing. After the substitution of Rules 4 and 5, Rule _
4 deals with seniority while Rule 5 deals with confirmations, whereas before
the 1982 Amendments, Rule 4 dealt with confirmation and Rule 5 with
seniority. The definitions introduced in Rule 2(1) which are relevant for
the present purposes - read as follows:
D
• "(c) Assistant Engineers recruited against permanent posts"
means those Assistant Engineers who have been directly
recruited through the Union Public Service Commission against
permanent posts of Assistant Engineers in accordance with
clause (a) of rule 3 read with Part III of the Service Rules; E
( d) . wAssistant Engineers recruited against temporary posts"
means those Assistant Engineers who have been directly
--- reauited through the Union Public Service Commission against
temporary posts of Assistant Engineers in the Central Public
Works Department in accordance with clause (a) of rule 3 read F
with Part III of the Service Rules;
(e) wAssistant Engineers promoted from the lower ranks" means ·
those Assistant Engineers whether graduates or Diploma
holders; promoted or selected from the rank of Section Officers
to tlie grade of Assistant Engineers by a duly constituted G
Departmental Promotion Committee in accordance with either
clause (b) or rule 3 read with Part IV or clause (~) of rule 3
read with P'art V of the Service Rules as they existed before
they were amended by GSR Nos. 418 and 419 dated the 8th
'I March, 1978." H
150 SUPREME COURT REPORTS [1992) 3 S.C.R.
A Rules 4 and 5 as substituted in 1982 read thus:
"4. Seniority
(i) Notwithstanding anything else contained in the Service
Rules, the seniority of the members of the service appointed
B by whichever method, or before the 21st December, 1959 shall
be determined with reference to the date of their appointment
as Assistant Engineers, irrespective of whatever they have. been
confirmed in the grade or not and they shall rank en bloc senior
,
to those appointed on or after the 22nd December, 1959.
c
Note : For the purpose of this sub-rule, the date of appointment
of the direct recruits of any batch appointed on or after the
21st May, 1954 shall be deemed to be earliest date on which
any person from that batch joined in the service.
-
D (2) Subject to the provisions of sub-rule (4), the seniority of the members
of the service appointed by _whichever method, on or after ·the 22nd •
December, 1959 shall be determined in the order of their confirmation
under Rule 5:
E Provided that their inter se seniority shall be determined by the order
of merit in which they are selected for such appointment:
F
provided further that persons appointed as a result of earlier selec-
tion shall rank senior to those appointed as~ result of subsequent selection.
(3) As from the commencement of the Central Engineering Service, Class
II, Recruitment (Amendment) Rules, 1976 and the Central Electrical
-
Engineering Service, Class II, Recruitment (Amendment) Rules, 1976, the
relative seniority of promotee Assistant Engineers under Clauses (i) and
(ii) ,of rule 24 of the Service Rules shall be regulated according to the
G rotation of vacancies based on the quotas prescribed for such promotions
beginning with a promotee under clause (i) of the said rule.
(4) The. relative seniority of the members of the service appointed, by
whichever method, shal!follow the.following order. Persons falling in each
H later category shall rank junior to persons falling in the earlier category:
R.L BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.] 151
(i) Assistant Engineers appointed by whichever method on A
or before the 21st day of December, 1959;
(ii) Assistant Engineers appointed on or after the 22nd day
of December, 1959, against the permanent vacancies, in
any particular post, in accordance with Part III of the
Service Rules, and B
confirmed in accordance with sub-claus~ (ii) of clause (b)
of rule 5 in that year.
(iii) Assistant Engineers appointed on or after the 22nd
day of December, 1959 and confirmed in any particular
c
year after the confirmation of the Assistant Engineers
referred to in clause (ii) of this sub-rule, in the manner and
in the order specified in sub-clause (iii) of clause {b) of
sub-rule (2) of rule 5, in that year.
D
Confinnation:
(1) To be eligible to be considered for confirmation an Assis-
tant Engineer appointed, by whichever method, shall have;
(a) completed the period of probation satisfactorily and E
(b) passed such tests as may be precribed from time to
time by government by general or special orders.
(2) Notwithstanding anything else contained in the Service
Rules, but subject to the provisions of sub-clause (1) above, the F
confirmation of Assistant Engineers in the service shall be
regulated in accordance with the provisions hereinafter con-
tained, namely:-
(a) The Assistant Engineers appointed by whichever G
method, on or before the 21st day of December, 1959 but ·
not confirmed before that date shall be confirmed in the
order of their seniority, subject to their being found fit
under sub-rule (1).
(b) Confirmation, in the grade of Assistant Engineers who H
152 SUPREME COURT REPORTS [1992] 3 S.C.R.
A were appointed on or after the 22nd December, 1959 shall
be made in the following manner, namely:-
(i) the number of permanent vacal).cies available in each
year shall be determined in the first instance.
B
(ii) Assistant Engineers recruited against permanent posts .
in a particular year, who have completed the period of
·probation, shall be confirmed en bloc against permanent
vacancies available in that year, in order of the inter se
c seniority of such officers and, where the number of Assis-
tant Engineers so appointed in a particular year exceeds
the number of permanent posts available in that year,
such Assistant Engineers shall be confirmed ·against su-
-
pernumeratory posts which shall be created for that pur-
pose.
D
(iii) After the Assistant Engineers of the category men-.
tioned in sub-clause (ii) have been confirmed in a year, the
Assistant Engineers recruited against temporary posts and
the Assistant Engineers promoted from lower ranks on
temporary basis, who have completed the period of proba-
E
tion, shall be confirmed subject to their being otherwise
found fit, against permanent vacancies available in that year
by continuous interspersing of one promotee and one
direct recruit appointed against temporary post till the
permanent vacanci<'.s of that year are exhausted.
F
Provided that if, in a particular year, any of the categories
mentioned in sub-clause (iii) nemely, the promotees or the
direct recruits against temporary posts, gets exhausted in fol-
lowing the procedure set out in this sub-clause, the remaining
permanent vacancies shall en bloc go to the group having
G unconfirmed Assistant Engineers:
Provided further that if, in a particular year, the number of
permanent vacancies is less than the number of Assistant En-
gineers in the categories mentioned in sub-clause (iii), the
H Assistant Engineers not confirmed in that year shall be con-
R.L. _BANSAL v. U.0.1. (B.P. JEEVJ\.N REDDY, J.] 153
sidered for confirmation against permanent vacancies of the A
susequent year, by again following the principle of inter- spers-
ing, after the direct recruits against permanent posts of that
year have first been adjusted in the manner indicated in sub-
clause (ii). The direct recruits or, as the case may be, the
promotees shall be selected for such confirmation under this B
clause in the order of their seniority in their respective seniority
lists."
- -~
It is necessary to notice the effect of the 1982 amendments. As would
be evident from the definitions "Assistant Engineers recruited .against
permanent posts", are those appointed under Rule 3(a) of the 1954 Rules C
against permanent vacancies, while "Assistant Engineers recruited against
temporary posts" means those appointed under Rule 3(a) against tern-
. porary posts. "Assistant Engineers promoted from the lower ranks", are
those appointed/promoted under unamended clauses (b) and· (c) of Rule
3. More important, seniority now depends upon the date of confirmation, D
which is determined in accordance with Rule 5 of i979/1982 Rules. If we
read Rule 5 closely, it becomes clear that of the permanent vacancies
available in a year, the direct recruits against permanent vacancies are to
be accommadated en bloc in the first instance. And thereafter if any
vacancies are left, the direct recruits against temporary posts and
promotees (which category now includes Assistant Engineers recruited and E
promoted under Clauses (b) and (c) - unamended - of Rule 3 of the 1954
Rules) are to be accommodately alternately. This process is to be repeated
each year. Then again, while Rule 5 refers to "Assistant Engineers recruited
against permanent posts" and "Assistant Engineers recruited against tem-
porary posts", it does not speak of "Assistant Engineers promoted from F
lower ranks". It speaks of" Assistant Engineers promoted from lower ranks
on temporary basis". What does this mean ? Does it mean that all promotee
engineers (including those 'direct recruits' appointed under unamended
clause (b) of Rule 3) were appointed/promoted only against temporary
posts ? Was no_ such person appointed or promoted against a permanent G
post ? Were all permanent posts meant only for direct recruits? Rules do
not say so, nor does the counter affidavit assert so. (If this were so, the
seniority list prepared in 1972 would not h~ve been prepared in the manner
it was prepared.) If on the other hand, these persons..were also appointed
and promoted against. some of the p,ermanent vacancies, then where do
they fit in in the sequence prescribes(.-Oy Rule 5 1 There is no explanation, H
154 SUPREME COURT REPORTS [1992) 3 S.C.R.
A nor any appartent reason, why the direct recruits against permanent posts
are treated as a superior category to all the promotees en bloc. Not a single
r
promotee - not even an Assistant Engineer recruited under unamended
clause (b) of Rule 3 of the 1954 Rules - is ranked on par with them. They
are placed on par with Assistant Engineers recruited against temporary
posts. Thii. is totally at variance with the basis and principle upon which
B the 1972 seniority list was prepared pursu!lllt to the Judgment of Delhi
High Court - which was later affirmed by this Court. There is yet another
glaring feature. So far as the appointments/promotions made prior to
December 22, 1959 are concerned, they are to be confirmed in the order
of their appointment - which means that seniority is determined on the
c basis of their appointment irrespective of the mode in which he is ap-
pointed. But when it comes to the period subsequent to December 22,
1959, the rule is altogether different. The Assistant Engineers ap-
pointed/promoted on or after December 22, 1959 are divided into three
-
categories mentioned above. There is no reason or basis for the date
~
22.12.1959 except that it is the date on which the subsequent Memorandum
D
of the Home Ministry (said to contain the principles regarding determina-
tion of seniority) was issued. (We have not been shown a copy of the said
Memorandum.) It is not a mere case of different principle being adopted
subsequent to 22.12.1959, it is the inherent vice of discrimination implicit .
in it thads hurting the promotees (as defined in amended Rule 3(b) of the
E 1954 Rules). ,.~-
The petitioners say that on the basis of the 1982 amendments, a fresh
F
revised provisional seniority list has been prepared and communicated to
all concerned, inviting their objections, if any. They say that in this revised
list they have been further sent down to far lower positions than in the 1979
list. The respondents, on the other hand, submit that the amendments are
-
perfectly just and equitable and that no legitimate grievance can be made ,)o.,-.
against the Rules or the revised provisional seniority list of 1982.
Now it is true that Rules made under the Proviso to Article 309 of
G
the Constitution being legislative in character cannot be struck down
merely because the Court thinks that they are unreasonable, - and that they
can be struck down only on the grounds upon which a legislativ~ measure
can be struck down. (Vide B.S. Vadera v. Union of India, (1969) S.C. 118
and B.S. Yadav v. State of Haryana, (1981) S.C. 561, we are yet of the
H opinion that Rule 4 of 1979 Rules (as amended in 1982) in so far as it
R.L. BANSAL v. U.0.I. [B.P. JEEVAN REDDY, J.] 155
predicates seniority on the date of confirmation - which confirmation is A
--r- directed to be made on a wholly unequal and discriminatory basis - is
violative of the equal opportunity clause enshrined in Article 16 of the
Constitution. The cadre, it is admitted consists of both permanent and
temporary members. The Rules do not say that promotees shall not be
appointed against permanent posts or that they shall be appointed only
against temporary posts. It is true that generally direct recruitment is made B
only against permanent vacancies/posts whereas promotions may be made
both against permanent as well as temporary vacancies/posts. But in this
service, it is clear from the Rules themselves that even the direct recruit-
ment is made against temporary posts. In short, there is no distinction
between the four erstwhile categories mentioned in unamended Rule 3.
c
- They could be appointed both against permanent as well as temporary
posts. If so there appears to be no justification for treating all the appoin-
tees under clauses (b) and (c) of Rule 3, en bloc, on per with direct recruits
against temporary posts (as has been done by Rules 4 and 5 of 1979/1982
Rules) which suggests as if all such appointments were made, at all points
of time, only against temporary posts. At the cost of repetition, we may D
mention that those appointed under unamended clause (b) of Rule 3 were
expressly referred to as direct appointees and yet they are now converted
into promotees en bloc and downgraded vis-a-vis direct recruits under /
unamended clause (a) of Rule 3. All this, in our opinion, is discriminatory
and violative of Articles 14 and 16(1). There were four channels/sources of
~ , appointment. Direct recruitment was one of them - unamended clause (a). E
I Unamended clause (b) provided for another type of direct appointment
'
while unamended clause (c) provided for promotion. True, there was no
quota fixed as between them as held by this Court and Delhi High Court
but the Rules nowhere stated that appointment under unamended clauses
(b) and (c) shall be made only against temporary posts. All the four sources
F
were equal - quality-wise. Neither was superior to the other. In these
~ circumstances, bringing in new concepts of "Assistant Engineers recruited
~ against permanent posts", and "Assistant Engineers promoted from the
lower ranks" through the 1979 Rules (as amended by 1982 Rules) and
treating the latter category unfavourably on that basis (vide Rules 4 and 5
of 1979/1982 Rules) is a clear case of hostile discrimination. In this context, G
if we recall the principles enunciated by the Delhi High Court and this
court in the earlier writ petition referred to hereinbefore, the intention of
the Rule-making authority to undo the effect of the said Judgments, to the
grave prejudice of the Assistant Engineers appointed under clauses (b) and
(c) of unamended Rule 3 becomes crystal clear. The entire course of
H
156 SUPREME COURT REPORTS [1992] 3 ~.C.R.
A amendments and new Rules appears to be designed to undo the effect of
the said Judgment with retrospective effect. Not only the classification bas r
no basis in the Rules - or in the factual situation - it is unreasonable and
unjust; it is also unrelated to the object - the object being efficiency of
administration.
B In S.B. Patwardhan and Anr. v. State of Maharashtra and Ors. A.LR.
1977 S.C. 2051, this court observed:-
"Instead of adopting an intelligible diffentia, Rule 8(iii) leaves
seniority.to be determined on the sole touchstone of confirma-
tion which seems to us indefensible. Confirmation is one of the
c jnglorious uncertainties of Government service depending
. neither on efficiency of the incumbent nor on the availability
of substantive vacancies. A glaring instance widely known in a
-
part of our country is of a distinguished member of the judiciary
who was confirmed as a District Judge years after he was
D confirmed as a Judge of the High Court. It is on the record of
these writ petitions that officiating Deputy Engineers were not
confirmed even though substantive vacancies were available in
which they could have been confirmed. It shows that confirma-
tion does not have to conform to any set rules and whether an
E employee should be confirmed or not depends on the sweet
will and pleasure of the Government.
Rule 8(ii) in the instant case adopts the seniority-cum-merit
test for preparing the statewise Select List of seniority. And yet
Clause (III) rejects the test of merit altogether. The vice of that
F clause is that it leaves the v~uable right of seniority to depend
upon the mere accident of confirmation. That, under Articles
14 and 16 of the Constitution, is impermissible and therefore
we must strike down Rule 8(iii) as being unconstitutional."
O The petitioners also rely upon the following observations from the
same judgment :
"Though drawn from two different sources, the direct recruits
and promotees constitute in the instant case a single integrated
cadre. They discharge identical functions, bear similar respon-
sibilities and acquire an equal amowit of experience in their
H respective assisgnments. And y~t clause (iii) of Rule 8 provides
~.L. BANSAL v. U.0.1. [B.P. JEEVAN REDDY, J.) 157
that probationers recruited during any year shall in a bunch be A
treated as senior to promotees confirmed in that year. The plain
arithmatic of this formula is that a direct recruit appointed on
probation, say in 1966, is to be regarded as senior to a promotee
who was appointed as an officiating Deputy Engineer, say in
1956, but was confirmed in 1966 after continuous officiation till
then." B
True i(is that in the present case, a formula contained in Rule 5 of
1979 Rules (as amended in 1982) is devised to govern the order of confir-
mation, but as demonstrated above, this very rule is discriminatory inas-
much as it seeks to treat equals une,qually, to the prejudice of what is now
_compendiously called, the class of "promotees". C
,,
For the above reasons, it must be held that Rule 4 of the Central
Public Works Department Assistant Engineers (Central Engineering Ser-
vice and Central Electrical Engineering Service) Group 'B' (Confirmation
and Seniority) Rules, 1979 (as amended by the Central Public Works D
Department, Assistant Engineers (Central Engmeering Service and Central
Electrical Engineering Service) Group 'B' (confirmation and Seniority)
Amendment Rules, 1982), insofar as it predicates the seniority of Assistant
Engineers (appointed on or after December 22, 1959) on the date of their
confirmation, is violative of the fundamental rights guaranteed to the
petitioners (and other similarly placed Assistant Engineers) by Articles 14 E
and 16(1) of the Constitution of India and accordingly held to be inopera-
tive and void. •'
Having i:egard to the period for which this dispute has been pending
an<!l!iJhe.facts and circumstances of this case and for the reasons recorded
hereinbefore, we direct that the seniority of Assistant Engineers appointed F
on or after December 22, 1959 shall be determined on the same basis and
in the same manner as it is determined in the case of Assistant Engineers
appointed prior to the said date. This direction is made keeping in view
the desirability of giving a quietus to this dispute atleast now.
G
The writ petition is, accordingly, allowed in the above terms. No
order as to costs.
_ _..\(
T.N.A. -Petition allowed.
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