Holding

An appointment to a temporary post of long duration, after completion of probation and fulfilment of all statutory requirements, is a substantive appointment and the officer is a member of the service for seniority; the 1961 G.O. fixing vacancy proportions has statutory force.

Summary

The case concerned three categories of Assistant Engineers in the Uttar Pradesh Service of Engineers (Irrigation Branch) – direct recruits, promoted subordinate engineers and temporary engineers – and their claim to seniority. The petitioners argued that temporary engineers, having fulfilled qualifications, passed probation and obtained Public Service Commission approval, should be deemed members of the service in a substantive capacity and thus entitled to seniority. The Court examined the service rules, especially Rule 23 (seniority based on order of appointment), Rule 3(b), Rule 4, Rule 5, Rule 6, and the 1961 Government Order fixing vacancy proportions. It held that appointment in a substantive capacity need not be to a permanent post; a long‑duration temporary post, once the officer has completed probation and other formalities, confers membership of the service for seniority purposes. The 1961 G.O. fixing the proportion of permanent vacancies has statutory force under Rule 6. Consequently, the seniority lists prepared earlier were set aside and the State was directed to prepare a new list following the principles laid down. The appeal was partly allowed and the writ petitions dismissed.

Issues considered

Whether a temporary Assistant Engineer appointed to a temporary post can be considered a member of the service in a substantive capacity for seniority purposes.
Whether the concept of ‘substantive capacity’ requires appointment to a permanent post or can include long‑duration temporary posts.
How seniority should be determined under Rule 23 when appointments are temporary.
Whether the 1961 Government Order fixing the proportion of permanent vacancies is legally binding under Rule 6.
Whether the service rules and the seniority lists are consistent with Articles 14, 16, 309 and 313 of the Constitution.

Legislation cited

Civil Services (Classification, Control and Appeal) Rules, 1930s. Rule 40
Constitution of Indias. Art.136, s. Art.14, s. Art.16, s. Art.226, s. Art.309, s. Art.313, s. Art.32
Government of India Act, 1919
U.P. Service of Engineers (Junior and Senior Scales) Irrigation Branch Ruless. Rule 17, s. Rule 19, s. Rule 23, s. Rule 3(b), s. Rule 4, s. Rule 5, s. Rule 6

Subjects

senioritytemporary appointmentsubstantive capacityservice lawpublic service rulesU.P. Service of Engineersappointmentconstitutional lawArticle 14Article 16Article 309Article 313service jurisprudence

Judgment

449

A

BALESHWAR DASS & ORS. ETC.
v.
STATE OF U. P. & ORS. ETC.
B
August 19, 1980
{V. R. KRISHNA IYER AND R. S. PATHAK, JJ.]

Service matter-Duly qualified persons appointed as Assistant Engineers in
temporary posts-Officiating service-Whether could count for seniority-Senio-
rity, how counted-Appointment in a substantive capacity, whether should be
to a permanent post-Substantive capacity-Meaning of.
c
Under rule 3(b) of the U. P. Service of Engineers (Junior and Senior Scales)
Irrigation Branch Rules a member of the service means a government servant
appointed in a substantive capacity under the provisions of the rules to a post
in the cadre of the service. Rule 4 empowers the State Goyernment to in-
crease the cadre by creating permanent or temporary posts from time to time D
according to the exigencies. Rules 5 and 6 contemplate recruitment (i) by
direct appointment from amongst engineer students of the Thomson Civil Engi-
neering College, Roorkee, (ii) by direct appointment, (iii) by appointment of
officers in the temporary service of the United Provinces, Public Works Depart-
ment (Irrigation Branch), (the selection in all these three categories was to be
after consulting a permanent Board of Selection) and (iv) by promotion of mem-'
hers of the Subordinate Engineering ·service, who have, in the opinion of the E
Government, shown exceptional merit. The proviso to rule 5 states that it
would not be necessary to consult the Commission in the case of appointment
of a temporary Officer to a permanent vacancy, if he has already been appointed
to a temporary post in the cadre of service after consultation with the Commis-
sion. In 1950 recruitment through Thomson College was stopped and in 1961
direct recruitment was made through the Public Service Commission. Rule 6
empowers the Government to fix quotas for members of the Subordinate Engi- F
neering Seryice. Rule 17 stipulates a period of probation in regard to all
candidates who were not in the permanent employment of the Irrigation Branch.
Rule 19 proYides the mode of confirmation of a probationer in his appointment.
Rule 23 regulating the inter se seniority of tbe officers states that seniority in
the service shall be determined according to the date of the order of appoint-
ment to it.
G
In 1948 by .combining class I and class II officers into one service the
Government constituted the U. P. Service of Engineers (Junior and Senior
Scales) but since the rules regulating their recruitment, conditions and classifica-
1ions could not be made, the Government followed the 1936 Rules which were
modified from time to time by Government orders. The High Court struck
down the seniority list of engineers prepared by the State Government in 1965
and gaYe directions to the Government to re-determine the seniority in accord- H
.ance with Rules 23 of the Rules. Purporting to act on these directions a fresh
-seniority _list was drawn up by the Government in May, 1969 but that too
· was struck down by the High Court.
/

450 SUPREME COURT REPORTS [19811 1 S.C.R...

A In appeal to this Court it was contended that it was not correct to say
that the temporary Assistant Engineers were not members of the service on
the ground that their appointment was not in a substantive capacity in perma-
nent posts since they had fulfilled all the requirements of the mies for being
appointed on a regular basis viz. possessing the requisite qualifications, selection
by the State Service Commission etc. irrespective of whether their appointments.
were to temporary posts or not, the Jong service they had put in must weigh
B in reckoning the seniority.

Allowing the appeal in part

HELD: The G. 0. of December 1961 in so far as it fixes the proportion of
permanent vacancies to be filled from the various sources had statutory force
being under mle 6. So much so, the various groups can claim permanency '('-
c only in terms of that proportion, although not being holder of a permanent
post neither debars membership of the Service nor earning the benefit of offi-
\

ciating service for purposes of seniority. [470 B-q
While temporary and permanent posts have great relevancy in regard to
the career of the government servants, keeping posts temporary fer Jong,
sometimes by annual renewals for several years and denying the claims of
the incumbents on the score that their posts are temporary, makes no sense
D and is arbitrary especially when both temporary and permanent appointees are
functionally identified. If, in the normal course, a post is temporary in the
real sense and the appointee knows that his tenure cannot exceed the post
in longevity, there cannot be anything unfair or capricious in clothing him
with no right. Not so, if the post is, for· certain departmental or like purposes,
declared temporary, but it is within the ken of both the government and the
appointee that the temporary posts are virtually long-lived. It is irrational
E to reject the claim of the temporary appointee on the nominal score of the
terminology of the post. [462 D-F)
Officiating service in a post is for all practical purposes of seniority as good
as service on a regular basis. It may be permissible, within limits, for govern·
ment to ignore officiating service and count only regular service when claims
of seniroity come before it, provided the rules in that regard are clear and
categoric and do not admit of any ambiguity and an arbitrary cut off of
F long years of service does not take place. While rules regulating conditions
of service are within the executive power of the State or its legislative power
under proviso to Article 309, such ml es have to be reasonable, fair and not
grossly unjust if they are to survive the test of articles 14 and 16. [462 G-H]
For purposes of seniority, one has to go by the order of appointment to
the Service in a substantive capacity. But no fixed connotations can be attri·
G buted to expressions like 'substantive capacity', 'service', 'cadre' and the like
because probation even for temporary appointees is provided for in the rules
which means that even temporary appointments can be substantive. For there
cannot be probation for a government servant who is not to be absorbed
substantively in the Sel'l"ice on completion thereof.
Permanency carries with it other rights than mere seniority and promotion.
H Permanent posts and temporary posts are in official terminology sharply different
but in the' historical context of the U.P. service of Engineers there is no difference
because recmitment of even temporary engineers requires consultation with the
Public Service Commission, undergoing physical fitness tests, probation and
BALESHWAR DASS V. U. P. STATE 451

departmental tests. The temporary appointees,. whose appointments have received A
the approval of the Public Service Commission and wha have run out the
two years of probation must be deemed to be appointed in a substantive capacity.
[465 D-E]
It is not correct to say that. when Engineers are appointed to ten;iporary
posts but after fulfilling all the tests for regular appointment they are not
appointed in a substantive capacity. It was conceded by the State in its counter·
affidavit that all the persons appointed to the service who are not already B
in the permanent employment of the Irrigation Department shall be placed on
probation for four ·years (since reduced to two years), which means that
persons who were not permanently appointed but only temporarily appointed
are also placed on probation and officers are not put on probation unless
they are on their way to membership in the Service on completion of probation.
That is to say although they are temporary appoiiitees, if their probation was
completed and other formalities fulfilled, they become members of the service.
c
Merely because the person is a temporary appointee it cannot be said that
he is not substantively appointed if he fulfils the necessary .conditions for
regular appointment such as probation and consultation with the Public Service
Commission. [466 A-DJ
Rule 23 is the relevant rule when a question of seniority arises. The
order of appointment in a substantive capacity is the significant starting point D
for reckoning seniority. The appointment in a substantive capacity need not
necessarily be to a permanent post. It is sufficient even if it is to a tempornry
post of long duration. [467 E-G]
An appointee to a permanent post acquires certain rights which one who
fills a temporary. post cannot claim. Nevertheless, when the post is· not purely
temporary or ad hoc or of short duration or of an adventitious nature, the E
holder of such temporary post cannot be degraded to the position of one,
who, by accident of circumstance or for a fugitive tenure occupies the tempo-
rary post for a fleeting term. [468 FJ
A person is said to hold a post in a substantive capacity when he holds
it for an indefinite period, especially of long duration in contradistinction to
a person who holds it for a definite or a temporary period or holds it on
probation subject to confirmation. If the appointment is to a post and the F
capacity in whicl\ the appointment is made is of indefinite duration, if the
Public Service Commission has been consulted and has approved, if the tests
prescribed have been taken and passed, if probation has been prescribed and
has been approved, one may well say that the post was held by the incumbent
in a substantive capacity. [469 D-E]
OVIL APPELLATE JURISDI!CTION: Civil Appeal Nos. 1317-1318 G
of 1976.
.....,, Appeals by Special Leave from the Judgment and Order, dated
13-9-1973 of the Allahabad High Court in Civil Misc. Writ Petition
Nos. 2719/69 & 4034/69.
AND H
WRIT PETITION Nos. 864/79 and 251/80
(Under Article 32 of the Constitution)
452 SUPREME COURT REPORTS ll 981] 1 S.C.R.

A R. K. Garg, V. J. Francis; D. K. Garg and Sunil Kumar Jain
for the Appellants in CA No. 1317/76 and Peti1tioner in WP 251/80.

K. K. Singhvi, Anil Kumar Gupta, Brij Bhushan, Virendra
Singh, N. P. Mahendra, A. M. Tripathi and S. S. Khanduja for the _..._
Appellant in CA 1318/76.
B
Yogeshwar Prasad, Ashok K. Srivastava and Mrs. R.ani Chhabra
for the Petitioners in WP No. 864/79.

D. V. Patel, Anil Kumar Gupta, Brij Bhushan, Virendra Singh,
N. P. Mahendra and A. M. Tripathi for ihe Intervener in CA No.
1317 /76.
c
G. N. Dikist and 0. P. Rana for Respondent No. 1 in both the
appeals. -..

Shanti Bhushan and M. C. Bha'!ldai:e for the Respondents Nos.
2-3 in CA No. 1317 /76 & R-21 in CA No. 1318/76.
D
S. Markandaya and U. P. Singh for R. 9 in CA No. 1318/76.
The Judgment of the Court was delivered by

KRISHNA IYER, J.-This case illustrates the thesis that unlimited
E jurisdiction under Art. 136 self-defeatingly attracts unlimited litiga-
tion which, in turn, clogs up and slows · down to zero-speed the
flow of ultimate decisions, what with the lengthy orality
and legal nicety of lawyers' advocacy. This bunch of appeals,
affecting thie fortunes of a large num beir of engineers, is evidence
of the flood of 'service' litigation whlch overwhelms the courts,
F paralyses public offices and demands of our pyramidal Justice
System basic changes, jurisdictional and processual. The perennial
problems of Service Jrnstice, which currently crowd the dockets of
the higher courts, save in cases of basic breaches of the fundamental
law, may well be made over to expert bodies·,. high-powered and
final but presided over by top judicial personnel. Service Jurispru-
G . dence is a specialised branch best administered by Special tribunals,
not routinely under Art. 226. We do not pontificate but share
thoughts.

We arei concer:ned mainly with the competitive claims to
seniority mainly as between three groups of engiilleers belonging to
H the U. P. Service of Engineers (Irrigation Branch) - Graduate
engineers directly recruited by the Public Service Com:mission by
competitive examination, graduate engineers once appointed in
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, ./.) 4 53

numbers but later absorbed after consultation with the Public Com~ A
· mission and diploma-holders later promoted as Assistant Engineers.
Brushing aside the hoary history of the Service when the· British
were hardly concerned with the development of India's natural
· resources, we may start the story with the lJ. P. Public Works
Department of which the Irrigation Wing was a part, the other
branch being Buildings and Roads. Later on, separate departments B
for Buildii.ngs an\d Roads and for Irri,gation were formed in 1946
as a developmental imperative of the State. Recruitment to the
Service-we are here concerned only with the Irrigation Department
~was governed by vintage Rules framed under s. 96B of the Govt.
of India Act, 1919, which had a confused course, and that factor c
i.e. lack of comprehensive structural engineering of the Engineering
Service Rules-is largely responsible for frequent group clashes
among the broad brotherhood of engineers whose whole-hearted
service, now distracted by litigation, is needed for national recons-
truction. But national dedication, so vital to poverty eradication,
is subject to one rider in our socieiy viz. charity begins at home. D
And so, for their own justice oriented survival, the groups are
fighting in courts while the demands of developmental justice to the
people need their presence in: the couniryside.
There were, to begin with, Class I and Class II officers, but in
1948, the two were fused into one, viz. the U. P. Service of Engin.eers E
(Junior and Senior Scales). The Service came into being but
fresh rules of recruitment were not made. Thus, a Service was
born but then the rules regulating recruitment, conditions and classi-
fications were unbor'n. So, Government relied on the old Rules of
1936 for these purposes with some G. 0. or other issued under pressure
of exigencies. The past projected into the present with ad hoc F
changes-a process which, not being scientific nor systematic, was
bound to produce injustice, as it has, in this Service. The dialectics
of Justice to Public Services lead to conflicts between the thesi1s (the old
conditions) and anti-thesis (the new expectations until a synthesis
realist equilibrium without discrimination) is reached by enlightened
governmental policy-making. Had Rules for the Service, i'n tune G
with the Constitution and the updated facts of life been made by
Government, iinstead of flirting with the past and improving for the
present, things would have boon different. Court litigation is not
designed for the end, but judges caamot but make-do with what
fossil Service Rules with engrafted mutations survive. To dig into
the past is our lot in this case. We do not blame Government for H
failure to make a whole scheme of post-COllltstitution Rules of
Service, pre-occupied as it may well be with other priorities.
454 SUPREME COURT REPORTS [198ll 1 S.C.R_

A The struggle beitwer;m the various groups is for seniority, in
some cases even for retention of regular appointment. The State·
had prepared a list of seniority first in December 1965. This list
was attacked as bad in law and the High Court by its judgment of
October 1967 in Civil Misc. Writ No. 4416 of 1966 ordered:
B "The petition, therefore, succeeds and is allowed. The
respondents are directed not to give effect or act in virtue of
the seniority list announced on December 30, 1965. They are
further dire<:ted to redetermine the seniority inter se of the
petitioner and respondents 2 to 49 in accordance with rule 23."
Purporting to act on this direction a fresh seniority list was
c drawn up ·by Government in May 1969, and this, in turn was·.
challenged by many as violative of Art. 14 and the High Court
allowed some of the writ petitions and held:
"For the reasons set out above, Civil Misc. Writ. Petition
No. 2719 of 1969 is allowed. The orders of appointment in the
D substantive capacity of respondents Nos. 2 to 169 and the· ,
seniority hst, dated 13-5-1969 (Annexure 'K' to the petition)
are quashed. The State Government is directed to make fresh
appointments and draw seniority list in accordance with law·
keeping in view the office Memorandum. dated 7-12-1961".
E The broad perspective we must adopt is plain enough in the
rnght of this Court's decision (see the concluding observations of
Chandrachud, J. in the State of Jammu and Kashmir v. Shri Triloki
Nath Khosa and Ors.(1) The goal of an egalitarian society must
be reflected in the process of classification of services, equalisation.
being the essential di'rection and perpetration of divisio!DS and proli-
F feration of classes being reduced to the minimum. Humanism- J'
cum-equalism, as a way of life, is integral to our constitutional order
and slow though the process be, sure shall our s~eps be towards
fusion, not fission in the various Departments of Public Service.
Unfortunately, this constitutional ethos has yet to be imprinted upon
the gene.tic code of the "United Provinces Service of Engineers
G Class II Irrigation Branch Rules" framed under s. 96B of the Govern-
ment of India Act, 1919 and contiinued under Art. 313 of the
Constitution. The result is micro-classifications ad hoc amendments,
uncertain service conditions, litigative excursions, and indefinite.
postponement of even a Seniority List.
H The ancient year extant 1936 Rules relating to Class II service,.
framed under different conditions, still govern the Service with such·
(I) [1974] I S.C.C. 19.
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J.) 455

patch-work modifications through Government Memoranda as were
made by the State from time to time. A garment of seams and
stitches to-day drapes this developmentally strategic department despite
Reports by two expert Committees, and this anachronistic set of
Rules must be adapted by the Court now to fit th!e over-groW111
anatomy of Irrigation Engineers (Junior Divi'Sion).
B
The fury of the controversy rages round seniority in service
among the triple categories of Assistant Engineers which we will
presently describe. Before that. the basic rules of 1936. Rule 23
.~·· regulates inter se seniority and reads thus:
"Seniority in the service shall be determined according to c
the date of the order of appointment to it, provided that if
the order of the appointment of two or more candidates be.ars
the same date, their seniority inter se shall be determined accord.
ing to the order in which their appointment has been notified".
(emphasis added)
D
So, the order'. of appointment to th£ SerVice is decisive of senio-
rity and the service horoscope of each Assistant EngilljOOr has to
be cast with referooce to his. appointmelldl order. The next
question then, is, when is an engineer appointed to the Service?
When, under the Rules, he becomes a member of the Service. For.
E
until he gains eintriy into the Service he cannot claim to be appointed
to it. To hover around with pl'ospects of entry is not the same as
actual entry. Therefore, ~e have to examine when an engineer
becomes a member of the Service under the Rules. Clause (b) of
Rule 3 defines 'Member of the Serv.ioe' to mean a government
servan1t 'appointed in a substantive capacl'ty under the provisions of F
these rules ............... to a post in ~he cadre of the Service.' What,
then, is the cadre of the Service? What do we mean by appoint-
ment in a substantive capacity to a post in the cadre? Can there
be a temporary post included in the cadre? Here, r. 4 becomes
relevant. Rule 4 prescribes the sanctioned strength of the cadre.
It provides thait the government may, subject to the pnovisions of· G
r. 40 of the Civil Services (Classification. Control and Appeal) Rules,
1930 'increase the cadre by creating pernument or temporary posts
from time to time as may be fuood necessary.' So a cadre post
can be permanent or temporary and if an engineer were appointed
substantively to a temporary or permanent post he becomes a
member of the Service. The touchstone thep.. is the substantive H
capacity of the appointment. Here we get into service jargon with
slippery semantics and flavoured offidalese.
456 SUPREME COURT REPORTS [19811 1 S.C.R.

A Now, we must go to the plural .sources of recruitment, the
ar\rangement of the ratio among the sourceSI and the requirements
for them ,to get into the Service. Rules 5 and 6 relate to this branch
of enquiry. The sources of recruitment are set out thus:
Sources of Recruitment:
(i) by direct appointment from amongst engineer students
who have passed out of the Thomson Civil Engineering College.
Roorikee, and who have completed a course of training in the
Irrigation Branch as engineer students, after consulting a
permanent Board of Selection;
(ii) by direct appointment after advertisem<:nt and after
c consulting a permanent Boarq of Selection;
(iii) by the appointment of officers in the temporary service
of the United Provinces. iDJ Public Works Department, Irriga-
tion Branch, after consulting a permanent Board of Selection;
(iv) by promotion of members of the United Provinces
D Subordinate Engineering Service or of Upper Subordinates in
the Public Works Department, Inrigation Branch, who have in
the opinion of Governmernt shown exceptional merit.
We have stated earlier that these Rules were framed long befdre
the Constitution of India and have suffered many amendments one
of which is the substitution of the Public Service Commission for a
E permanent Board of Selection. A Proviso has been added to r. 5
and that runs thus :
"Provided that it will not be necessary to consult the Com-
mission in the case of appointmeint of a temporary officer to
a permanent vacancy if Ire bas already been appointed to a _} ·
F temporar,y post in the cadre of service after consultation with the
Commission. The amendments shall have effect from the ?ate
of notification."
This Proviso shows .that temporary officers (whatever that expression
means) could be appointed to permanent vacancies. without consulta-
tion with the Commission, if they had already been appointed to
temporary posts after cotrnsultation with the Commission. Thus,
we get the idea of temporary posts and permanent posfs, provisional
appointments and substantive appointments. Indeed, the bewildering
variety was brought out during arguments by reference to the ·Funda-
mental Rules. A permanent posts means
H "a post carrying a definite rate of pay sanctioned without
limit of time"
[FR 9(22)]
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J'.) 457

A temporary post means
"a post carrying a definite rate of pay sanctioned for a
limited time"
[FR 9(30)]
Fundamental Rule 22B speaks of holding a post in a substantive,
temporary of officiating capacity. But this jargon is not the last B
word after the Constitution came to be enacted.
Be that as it may, the sources of recruitment are 4-fold. 'The
Thomson College appointments were formally i;topped by a G. 0. ·of
1950. Another big change took place. Direct recruitment, routed
through the Public Servilce Commission was introduced in 1961. c
The rules of procedure for directi recruitment and kindred matters
are provided by an Office Memorandum of December 1961 which
we will consider more closely as they bear upon the crucial controversy.
Rule 6 gives power to Government to fix quotas for the various
sources and not lesis than 20% of the vacancies are reserved for D,
selected qualified members of the Subordinate Engin~ring Service
who are category 4 in r. 5. Persons who are recruited in terms of
tr. 5 and 6 are appointed smbject to r. 17 which stipulate~ a spell of
probation in regard to all candidates who are not already in the
permanent employment of the Irrigation Branch. We quote the rule:
17. All persorns appointed t0 the service who are not already E
in the permanent employ of the Irrigation Branch of the
United Provinces Government shall be placed on probation for
four years provided that such of them as have undergone
training as engineer students, or have served as temporary
engineern in the Irrigation Branch of the United Provinces
Government, may be permi~ted to count ~he period of such F
training and service re<spectively towards this period of probation:

Provided also that the Government ma:y extend the period
of probation in any caJ1e. The Govt. may at any time during
the period of probation dispense with the service of an officer,
after giving him one moth's notice. G

The probationer is confirmed in his appointment on his satis-
factory completion of probation after passing the necessary tests.
Rule 19 relates to confirmation in the appointment of a probationer
and reads thus :
19(i) A probationer shall be confirmed in his appointment H
when-
(a) he has completed the prescribed period of probation,
·458 SUPREME COURT REPORTS [19811 1 S.C.R.

(b) he has passed all the tests preiscribed in the last
preceding rule, and
(c) the Government are satisfied that he is fit for
confirmation.
(ii) All cO!nfirmatibns under this rule shall be notified in
the United Provinces Gazette.
B
Two vital factors must guide us in this interpretative exercise.
If a dated rule of colonial times is to be applied to-day. that
m~ng which sustains it as constitutionally valid must be preferred
to another which may be appealing, going by officialese or literal
sense. We have to regard it as a case of 'new wine in old bottle'.
c We must re-interpret the rules to comport with Arts. l"- and 16 by
constitutiomilly acceptable construction, not rigid oonnotatibn given
to expressions in1 the vintage vocabulary of British Indian days. We
streiss this aspect because the argument urged is one of unconstitu-
tionality of the Seniority List and ~ the Rules which deprive many
engineers appointed in the normal course and serving for long
D
years arbitrarily ain.d unrea.son~bly of the credit of such service
merely because the literal rigour of old Rules requires it. We must
strive to salvage the Rules, if need be, by assigning a fresh sense,
language permitting, which Will fit the Rules into the "fu!Ildamental
rights" mould. We are thus thrown into the meaning of meanings,
released from officially sanctified meanings. In short, while read-
E
itng the Rules we must remember the Constitution.
Secondly, words themselves are but the \Skins of thought and
once we get that, the root though which the language of the rules
seeks to express, it is possible to interpret the words accordingly.
Even so, we cannot run away from the Rules as they are, though
.F moth-eaten by time and by tinkering amendments.
·0ne of the principal groups in this forensic battle is the direct
recruits selected by competitive tests by the Public Service Commis-
sion. So we must bestow some attention on their genesis and
positilon in the total scheme. We reject the submission that the
·G Official Memorandum incorporating these Rules, not being expressed
to have been issued in the name o:f tire Governor, is of no legal
validity. We cannot 'baistardize' these Rules made and published
under Government authority, acted upon for two decades and ·
recruitments made by the Public Service Commission and universally
accepted as binding 'Rules Regulating Selection for Recruitment of
H Assistant Engineers (U. P. Service of Enginee:rs Clas1s. II) in the
Various State Engineering Services in Uttar Pradesh'. We will set
out some parts of these Rules of December ·7, 1961.
BALESHWAR D!SS v. U.P. STATE (Krz~hna Iyer, J.) 459

We may, at this point, crystallise the effect oil the Rules read A
so far, so that it may serve as a spring board for further discussion.
The battle between the parties or groups very much turns on what
is the intent and effect of Rules 23, 3, 4, 5, 6, 17 and 18 and their
impact on r.23 read in the new context of the 1961 .Rules, We
nave to grapple with the crucial question of sellliority which, when
we hark back to r.23. in turn, revolveis round the "date of the order B
·of appointment". The effect of probation and confirmation is also
another consideration. But r.23 sets out the guidelrnes and the
entire endeavour of both sides has been to supply an answer which
gives one group a superior posit:Jbn ais against another in the
oompetitiidn for seniority which apparetntly has promotional value
when posts of Executive Engineers fall vacant.
c
We must confess that because of the absence of a coherent
policy of recruitment and conditions of service and on account of
frequent changes through execulivel instructions, apart from the
mystique of officialese, it has become difficult for us to rationalise
the rules and decode the principles underlying regular appointments D
relevant to seniority. Even in court, as the argument proceeded.
judges and advocates had to wrestle with the rules to extract a
coherent system out of them. The High Court, on both the occa-
sions, when challenges were made, quashed the seniority lists and
directed fresh lists to be prepared. But in the absence of clear
E
judicial guidelines the exercise by the Executive would lead to further
confusion and cavil and that is why we express our dismay at the•
whole situation where from stage to stage, chaos, not cosmos, ha'
been the result. ~
Reference was made to an investigation by the Lal Committee
and the Shukla Committee which went into the question of rationali- F
sation of the scheme of recruitment. classification, seniority and
promotion; but as late as 1980 we are in no better position than
when the moth-eaten rules and instructions were made decades ago.
M.ay be, the Reports of the Lal Committee and Shukla Committee
to whieh reference was made need not, as is the fate of most
G
Reports, gather dust but give light where the will to seek light exists.
This is a isad commentary on the functional failure at the Service
level of the State Government which has led not merely to incessant
litigations among engi:neers, uncertainty about their' future but also
discontent and disincentive vis-a-vis their work in the Irrigation
Department. · H
We see nothing arbiltrary in the 1961 Memorandum although
in its application, we have to remember the prior rules and when the
460 SUPREME COURT REPORTS [1981J 1 S.C.R.

A two are woven into each other or, rather, when the later 1961
Memorandum is devetailed to the 1936 Rules the results that may
follow will have to be ascertained with care and consistently with
the ratio of the decisions of this Court in cognate situations.
What is significant to know i1s that Govt. decided in 1961 to
B resort to direct recruitment of Assistant Engineers through competi-
tive examinations held by the Public Service Commission. It was,
however, alive to the fact that massive appointment's had already
been made, in the years gone by, to the posts of Asst. Engilnieers
from among graduates in engineening by direct selection and later ~
approval by the Public Service Commission apart from Thomson .(
c College graduates in engineering. The Government was also aware
of the promotional claims of those i:n the subordinate services. '
Moreovel-, there were vacancies permanent and temporary and there
were appointees, permanent and temporary. The equities of the
situation bad to be taken note of because Government could not,
without being guilty of cruel snobbery relegate all those, except
D direct recruits, from among degree-holders by competitive examina- -:.
tions through the Public Service Commission, to a secondary status. :r
In this holistic view it was that the Office Memorandum, dated
December 7, 1961 was promulgated. We extract it because its
import and impact are decisive to an extent of the fate of the cases
before us:
E
The principles regulating selection for recruitment 'o perma-
nent and temporary posts of Assistant Engineers in the various
State Engineering Services have been under the consideration of
Government for some time past and after thorough consideration J/
the Governor is pleased to order that in future direct recruit-
F ment to both permanent and temporary vacancies ·of Assistant
Engineers (Civil, Electrical and Mechanical) in the Public Works.
Irrigation and Local Self-Government Engineering Departments
will be made on the results of competitive examinations to be
oonducted iby the Public Service Commission. Candidates
possessing technical and other qualifications prescribed in the
G
rules for the Uttar Pradesh Service of Engineers in the Depart-
ments concerned will be eligible to appear at the examination
for that particular service.
2. Successful candidates in order of merit will subject to
the relevant rules regarding physical fitness and othei: matters.
H be appointed directly on probation against vacant permanent
posts and those following will be appointed against temporary
posts.

\
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J.) 461,

3. All vacanc.ies in the permanent cadre in the Irrigation and A
Local Self-Government Engineering Departments in a particular
year wiII be pooled and filled as follows :
(a) 50 per cent by direct recruitment through competitive
examination.
(b) 20 per cent by promotion from subordinate services. B
(c) 30 per cent by selection from amongst temporary
Assistant Engineers recruited through the Public Service Com-
mission.
xx xx xx
However, as measure of concession to the exi$1ing temporary
c
Assistant Engineers who' were recruited as temporary Assistant
Engineers on the advice of the Public Service Commission prior to
the introduction of this scheme for the time being distribution of
vacancies in the permanent cadre of Assistant Engineers will be as
follows.: D
(a) 30 per cent by direct recruitment through competitive
examination (25 per cent for the Public Works Department),
(b) 20 per cent by promoti.on from. subordinate service
(25 per cent" for the Public Works Department),
(c) 50 per cent by selection from amongst existing tempo- E
rary Assistant Engineers who were recruited as temporary
Assistant Engineers through the Public Service Commission.
The distribution of vacancies in the permanent cadre in the
above manner will be subject to the condition that the Governor
_in consultation with the Public Service Commission, may, for spe-
cial reasons, increase or decrease the percentage fixed for recruit- F
mfnt by selection and competitive examination in any particular
year.
The candidates selected on the results of competitive examina-
tion and appointed against permanent vacancies shall be placed
on probation for a period of 3 years. However, in the. case of such G.
direcf ly recruited candidates who have served as Assistant Engineers
in a particular department in temporary capacity, continuous
period of temporary service rendered as Assistant Engineer imme-
diatty before selection for permanent post of Assistant Engineer
may be allowed to count towards this period of probation.
he candidates will not be required ·to possess one year's .H
prac ·cal experience, prescribed in the existing rules for recruit-
of Assistant Engineers as a pre-requisite qualification for
9-647 S. lndia/80
462 · SUPREME COURT .REPORTS l1981J 1 S.C.R.

A· recruitment of Assistant Engineer in the various departments. The
period of practical experience will be covered by the period of
probation.
During the probationary period candidates will be required to
pass the Departmental Examination prescribed by the various
B departments. Probationers may be confirmed subject to passing
these examinations and their work continuing to be satisfactory.

Temporary and officiating Assistant Engineers possessing the
requisite technic~l qualifications will be eligible to appear in the
competitive examination. The maximum age limit in the case of. ,---J. _
c those working in the department with the approval of the Commis- r
sion or after having been recruited by the Commission will be
40 years.
Plan and the syllabus of the competitive examination will be
as shown in Appendix 'A' enclosed with these orders.
D There is more of this maze of rules and notifications but we desist
from bringing them on record since they have not much bearing on
the ultimate result. We must emphasise that while temporary and
permanent posts have great relevancy in regard to the career of gov-
ernment servants, keeping posts temporary for long, sometimes by
annual renewals for several years, and denying the claims of the
E incumbents on the score that their posts are temporary makes no
sense and strikes us as arbitrary, especially when both temporary and
permanent appointees are functionally identified. If, in the normal
course, a post is temporary in the real sense and tjie appointee knows
that his tenure cannot exceed the post in longevity, there cannot be
F anything unfair or capricious in clothing him with no rights. Not so,
if the post is, for certain departmental or like purposes, declared tempo-
rary, but it is within the ken of both the government and the appointee
that the temporary posts are virtually long-lived. It is irrational to
reject the claim of the 'temporary' appointee on the nominal score of
the terminology of the post. We must also express emphatically that
G the principle which has received the sanction of this Court's pronounce-
ments is that officiating service in a post is for all practical purposes
of seniority as good as service on a regular basis. It may be permis-
sible, within limits, for government to ignore officiating service and
count only regular service when claims of seniority come before it,
provided the rules in that regard are clear and categories and do not
H admit of any ambiguity and cruelly arbitrary cut-off of long years of
service does .not take place or there is functionally and qualitatively,
substantial difference in the service rendered in the two types of posts.
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J.) 4 63

While Jes regula'ting conditions of service are within the executive A
power o the State or its legislative power under proviso to Article 309,
even so, such rules have to be reasonable, fair and not grossly unjust
if they e to survive the test of Articles 14 and 16.
Wh le assessing the effect of the totality of the two sets of .rules
placed b fore us, we have to make the broad approach set out above B
and not become prisoners of the 'official' meaning of abstruse expres-
sions us d in the rules which themselves have frequently changed with
a view to "rationalisation". The two committees (the Lal Committee
and the Shukla Committee) examined the entire matter but we have
no idea, from the Government's affidavits, as to how far the rules .
have been intelligently moulded by these reports. c
Right in the beginning, we have indicated that r. 23 is of spinal
significance, and for purposes of seniority, one has to go by the order
of appointment to the Service in a substantive capacity. It is difficult
to overlook r. 23 or slur over the expression 'substantive capacity'. But
we cannot attribute fixed connotations to expressions like 'substantive D
capacity', 'service', 'Cadre' and the like because we find that probation
even for temporary appointees is provided for in the rules which means
that even temporary appointments can be substantive. For, there can-
not be probation for a government servant who is not to be absorbed
substantively in the Service on completion thereof. With this back-
ground, if we approach the scheme unfolded by the Office Memorandum E
of December 1961 superimposed on the 1936 Rules, we get three cate-
gories of Assistant Engineers and a fixation of the proportion among
them. Firstly, there are to be direct recruits through open competition
held· by the Public Service Commission. 50% of the posts will go to
them although it is stated that the vacancies are to be "in that perma-
nent cadre". Secondly, the subordinate services will get 20% by promo- F
tion and thirdly, 30% will belong to the temporary Assistant Engineers
recruited through the Public Service Commission in the past. The office
Memorandum makes it clear that direct recruitments will be made to
"both permanem and temporary vacancies of Assistant Engineers".
But this schenie of 1961 cannot stand in isolation and has to be read
as subordinate to the 1936 Rules. After all, the 1961 Memorandum G
.cannot override the Rules which are valid under Art. 313, and so
must be treated as filling the gaps, not flouting the provisions. So,
read, what is the eventual conclusion?
The State, in its counter-affidavit, has urged that all parties must
be deemed to have accepted the decision of the High Court in its judg- H
ment of October 30, quashing the seniority list of December 30, 1965.
We are inclined to proceed on that footing because, after that decision

..
464 SUPREME COURT REPORTS [19g1J 1 S.C.R.

A was rendered, Government accepted it and went through the exercise
of preparing a fresh seniority list and all the engineers concerned ac·
quiesced in the decision and never raised any objection to the fresh
preparation of a seniority list consequent upon the High Court's decisio1,1:
of 1967. That, by itself, does not give us any conclusive answer to
the present question which has been agitated before us. First of al!,
B we must understand the two grievances brought to our notice by the
appellant and the writ petitioners. Their contention is that whether
their appointments were to temporary posts or not, the long service
they have put in must weigh in reckoning seniority. Their further
contention is that if the Public Service Commission has arranged'
c the order of merit in a particular manner and if appointments have
been made irregularly without reference to that order or priority, they
have no objection to marginal re-adjustments while arranging the
seniority of the various appointees by giving effect to the order in
which the Public Service Commission has made its recommendations.
It is also fairly apparent from the arguments, although not formally
D conceded by counsel, that officiation, from the date. from which tempo-
rarily appointed Assistant Engineers have been formally approved by
the Public Service Commission on reference by the State Government,
must be given credit or at least from the date of Government's accep~·
tance of the Commission's recommendation. There was nothing more
by way of impediment in their appointments being treated
E as regular. They were Assistant Engineers duly qualified.
Their appointments might have been temporary, but tempo·
rary posts and temporary appointments are within the Rules. The
Public Service Commission has since been consulted and has concurred
and Government has accepted it. Every indicium of regular appoint-
ment'is thus present. There is nothing relied on by the rivals to dis-
F lodge the reckoning of service for purposes of seniority from then on,
except the sole contention that the temporary Assistant Engineers are
not members of the Service because their appointment is not in a
substantive capacity and not a permanent post.

G We are free to confess that the rules, stricking divergent notes, like
ill-tuned cymbals, have vexed us a while. The' touchstone of valid
interpretation being the Constitution and harmonisation of rules wit~
fundamental rights being the proper path we have tried to sensitize
the provisions to do equal justice under the law refusing to petrify
r. 23 or the other relevant rules we have referred to Rule 4 of the 1936
H Rules clearly contemplates a cadre, as covering "permanent or tempo-
rary posts". So, a cadre takes in temporary posts. Once we cease
to be allergic to 'temporary posts' as a component of a cadre we reach
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J.) 465

the next step that a cadre is, as it were, a layer in the Service. Rule 4 A
itself, while dealing with the strength of the cadre, speaks of a holder
of a post in a cadre as a member of the Service may be the holder
<>f a temporary or a permanent post.
We have two, perhaps three, types of direct recruits. The first is
the vanishing species of Roorkee University 'engineer students'. They B
were directly appointed but on a temporary footing. Massive appoint-
ments were made of other degree-holders· as Assistant Engineers on a
temporary footing to meet the massive developmental requirements. No
one can imagine that the guaranteed posts to the brilliant Roorkee
boys was temporary only or that the large number of graduates were
being lured into employment for long-term engineering requirements c
on a fleeting footing for a few months! Surely, Government wanted
to recruit them on a regular basis but hesitated to appoint them to per•
manent posts as such because budgetary provisions, creation of perma-
nent posts by assessment of the total requirements and the like were not
instant jobs but needed more time. The Plan was to take these degree-
holders on a regular lasting basis but to make them permanent after D
study of the situation. Permanency carries with it other rights than
mere seniority and promotion. Pen:n.anent posts and temporary posts
are, in ordinary officialese, sharply different but in the historical context
.of the evolving U.P. Service of Engineers 'thin partition do their bounds
divide'. The recruitment of even temporary engineers under source
E
(iii) of r. 5 requires consultation with the Public Service Commission.
Likewise r. 14 requires for all the three types of direct recruits, tempo-
rary included: physical fitness tests.
14. No person shall be appointed as- a member of the service
unless he is in good mental and bodily health and free 'from any
physical defect lik'ely to interfere with the efficient performance of
his duties as a member of the service. Before a candidate is finally
approved for appointment to the service under the provisions of
rules 5(i), 5(ii) or 5(iii) he shall be required to pass an examination
by a Medical Board at his own expenses and shall pay a fee of
Rs. 16 for such examination.
G
Probation, tests and confirmation are laid down under rr. 17 to 19 for
"all persons appointed to the service". We delve into these details
to drive home the propinquity in status of permanent and temporary
engineers in the special conspectus of facts here.
We see no reason to hold that when engineers are appointed to
temporary posts but after fulfilment of all the tests for regular appoint- ll
ments, including consultation with the Public Service Commission, they
are not appointments in a substantive capacity. In Service terminology,
4~6 SUPREME COURT REPORTS (19811 1 S.C.R.

A · perhaps, eye-brows may be raised when we say so, but then, we must
remember that the State itself in its counter-affidavit has construed +
r. 17 of the Rules as providing "that all persons appointed to the Ser-
vice who are not already in the permanent employment of the Irriga-
tion Department shall be placed on probation for four years" (since
reduced to two years). This means that persons who are not perma-
B nently appointed but only temporarily appointed are also placed on
probation and officers are not put on probation unless they are on
their way to membership in the Service on completion of probation.
That is to say, although they are temporary appointees, if their proba-
tion is completed and other formalities fulfilled, they become members
Service. It follows that merely because the person is a tempo-
c ofrarytheappointee it cannot be said that he is not substantively appointed
if he fulfils the necessary conditions for regular appointment such as
probation and consultation with the Public Service Commission etc.
From this stand of the State Government it follows that the temporary
appointees, whose appointments have received the approval of the Public
D Service Commission and who have run out the two years of probation,
must be deemed to be appointed in a substantive capacity. The only
advantage for permanent appointees, i.e. Assistant Engineers who have
been appointed to vacancies in the permanent cadre is what belongs
to permanent public servants under various rules in different areas of
official life.
E We are not interested in the arithmatics given in the affidavits and
counter-affidavits regarding the permanent vacancies in the various
categories designated as A, B and C. What we focus on is the set of
principles which must regulate the service available for computation
of seniority. In paragraph 22 of the State's counter affidavit the break-
up of the vacancies available in the various years to the various cate-
F
gories has been set out. Their accuracy has not been shown to by,,.-1'"
. wrong and we may, perhaps, proceed on the correctness of those figures,- \
It is also made clear by the State that many officers belonging to the \ ;-
class of temporary Assistant Engineers were directly recruited before 'C . .
October 1958 and some of them were promoted as tempora1y Assistant \'. ;!
G Engineers from the Subordinate Engineers Service. "These officers had >--
been approved for temporary appointment by the Public Service Com· _
mission before 1958". Likewise, for the other years, particulars have
been furnished. The Government has also clearly undertaken that the
competitive seniority as between direct recruits and the temporary ap-
pointees who have been regularised may have to be taken up later on.
H The State's affidavit asserts :
"It is also correct that in the appointment order it was men-
tioned that seniority inter se and on the list of permanent Assistant
BALESHWAR DASS v. U.P. STATE (Krishna Iyer, J.) 467

Engineer of the officers will be determined later on." A

We do not consider it right or necessary to fix the seniority vis-a·
vis the date of appointment of the various parties, as' that is the admi·
nistrative function of Government. Nor do we think we should inter-
fere with the order of the High 'court setting aside the seniority list
of 1969. A fresh list has anyway to be prepared but the more meaning- B
ful judicial exercise is to lay down the correct principles and guide-
lines, · free from discriminatory infirmities and fairly in keeping with
the extant Service Rules. The Rules are, we make it clear, those made
in 1936 under the Government of India Act, 1919 and continued by
force of Art. 313 of the Constitution. Changes wrought by orders and
instructions such as the 1961 Memorandum cannot over-ride the Rules c
themselves but will operate subject to them in case of inconsistency.
Even an Administration of Inaction Unlimited must remember that a
systematic set of Service Rules is vital not only in fulfilment of its
constitutional obligation under the proviso to Art. 309 but also to keep
the mqrale and to promote contentment among the Civil Services by D
eliminating the 'inglorious uncertainties' about career prospects which
cut at the root of planned Jiving. So we hope that, what with two
expert commi~ee reports slumbering in rthe Secretariat cells, Govern-
ment will frame rules, tuned to the finer notes of Art. 16 and other
mandates and in consonance with the realities obtaining in this and sister
service8, after hearing affected sides as a stroke of £airplay and without E
being file-logged for long. We hold that r. 23 is the relevant mariner's
compass when a question of seniority arises. Deducing therefrom we
.get the· further guideline that the order of appointment in a substantive
"-) ... capacity is the significant starting point for reckoning seniority.

·-. Substantive capacity is a flexible expression which cannot be frozen F
' \ · by current officialese, ;nor by the conditions that obtained in the remote
· · past when the rule was framed. On the contrary, its meaning must
· be consistent with Art. 16 and must avoid the pitfalls of arbitrariness
and irrational injustice. So viewed, we hold that the appointment need
not necessarily be to a permanent post. It is sufficient even if it is to
~""' '} temporary post of long duration. In a Department which had perma- G
·1ent posts and temporary posts of a quasi-permanent nature, there is
l!lOt• much to distinguish. the quality of service as between the two.
•f'atwardhan's case( 1) and Chauhan's case(2) have primarily or in passing
l:larified the equal value of officiating service.
, ' .. (I) S. B. Patwardhan & Ors. etc. etc. v. State of Maharashtra & Ors., [1977]
H
3 o~GR'.775w 793-794-795, 796.
(2) N. K. Chauhan & Ors. v. State of Gujarat & Ors., [1977] 1 SCR 1037
at p.'·)057.

)
468 SUPREME COURT REPORTS [1981l 1 S.C.R.

A In Patwardhan' s case, Chandrachud, J. observed in the course of
the discussion "There is no universal rule, either that a cadre cannot
~onsist of both permanent and temporary employees or that it must
consist of both." Later, the learned Judge observed in the same strain:
The fact that the permanent strength of the cadre was deter-
mined on the basis of permanent posts at any given time, as for
B
example when the Bombay Government passed resolutions on
March 22, 1937 and April 13, 1945 cannot detract, from the posi·
lion that even temporary posts of Deputy Engineers were treated as
additions, though temporary, to Class IV cadre.
The Court, in that case, also held that confirmation cannot be the rnle
c touchstone of seniority as that will be indefensible :
Confirmation is one of the inglorious uncertainties of govern·
. ment ·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
D
of the judiciary who was confirmed as District Judge years after
he was 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 -io conforn1 to any set rules and whether an
E employee should be confirmed or not depends on the sweet will
and pleasure of the government.
In Chauhan's case this Court observed :
"Seniority, normally, is measured by length of continuous -.,..
officiating service-the actual is easily accepted as the legal."
F Of course, an appointee to a permanent post acquires certain rights
which one who fills a temporary post cannot claim. Nevertheless,
when the post is not purely temporary or ad hoc or of short duration
·or of ·an adventitious nature, the holder of such temporary post cannot
be degraded to the position of one who by accident of circumstance
· or for a fugitive tenure occupies the temporary post for a fleeting term.
G We must make this distinction not only to be truthful to the facts of
Service life but also to do justice to those who have otherwise rendered
•
long and satisfactory work in the Irrigation Department. In sh:irt.
while we do make a distinction between permanent and . temporary·
posts, when we come to· the dimension of mere seniority, we whittle
down the difference considerably. A post of short duration, say of
H a few months, is different from another which is terminologically tempo~
rary but is kept on for ten or more years under the head 'temporary'
for budgetary or other technical reasons. Those who are .appointed
BALESHWAR DASS v. u. P. STATE (Krishna Iyer, J.) 469

and hold temporary posts of the latter category are also members of A.
the Service provi:.ed they have been a·ppointed substantively to that
temporary post.
..,r.
What, in :1. :ontext, is a substantive capacity vis-a-vis an appoint-
ment to a post? In our view, the emphasis imparted by the adjective
"substantive" is that a thing is substantive if it is "an essential part B·
or constituent or relating to what is essenial".('} We may describe a
capacity as substantive if it has "independent existence" or is of :·consi-
. __," derable amount or quantity". What is independent in a substantial
measure may reasonably be described as substantive. Therefore, when
' a post is vacant, however designated in officialese, the capacity iri. which
~ the person holds the post has to be ascertained by the State. Substan· C.
tive capacity refers to the capacity in which a person holds the post
and not necessarily to the nature or character of the post. To appro-
ximate to the official diction used in this connection, we may well say
that a person is said to hold a post in a substantive capacity when he
holds it for an indefinite ~riod especially of long duration in contra 0 ·
·:">l distinction to a person who holds it for a definite or temporary period
or holds it on probation subject to confirmation.
Once we understand 'substantive capacity' in the above sense, we
may be able to rationalise the situation. If the appointment is to a
post and the capacity in which the appointment is made is of indefinite
duration, if the Public Service Co=ission has been consulted and has E
approved, if the tests prescribed have been taken and passed, if proba-
• tion has been prescribed and has been approved, one may well say
that the post was held by ~he incumbent in a subst3ntive capacity.
Government will ascertain from this angle whether. the capacity in
which posts have been held was substantive or temporary. If it is uot, F'
the further point to notice is as to whether the appointment~ are regular
and not in violation of any rule,· whether the Public Service Commis·
~ion's approval has .been obtai~ed and whether probation. medical fitnes<J
etc., are complete. Once these formalities are complete, the incumbents
I can be taken as holding posts in substantive· capacities and the entire
G
~
... • officiating service can be considered for seniority. For other purposes
they may remain temporary. It may well be that another interpretation
may make r. 23 vnlnerable. If a public servant serves for a decade with
distinction in a post known to be not a casual vacancy but a regular
post, exp,rimentally or otherwise kept as temporary under the time-
honoured classification, can it be that his long officiation turns to ashe's H
like a Dead Sea fruit because of a label and his counterpart equal in all
I"~ (I) Black's Legal Dictionary, ~th Etln. p. 1597.
·~ -.....-:--- .- --
·•·

470 SUPREME COURT REPORTS r1981J ·1 S.C.R.

A functional 'respects but with ten: years less of service steals a march
over him because his recruitment is to a permanent vacancy? We can-
not anathematize officiation unless there are reasonable differentiations
and limitations.

We take the view that the G.0. of December 1961, in so far as it
B fixes the proportion of permanent vacancies to be filled from the various
sources, has statutory force being under r. 6. So much so, the various
groups can claim permanency only in terms of that proportion, although
not being bolder of a permanent post neither debars membership of
the Service nor earning the benefit of officiating service for purposes of
seniority.
c
The normal rule consiste_nt with equity is that officiating service,
even before confirmation in service ·has relevancy to seniority if even-
tually no infirmities in the way of confirmation exist. We see nothing
in the scheme of the Rules contrary to that principle. Therefore, the
point from which service has to be counted is the commencement of
D the officiating service of the Assistant Engineers who might not · have
secured permanent appointments in the beginning and in that sense
may still be temporary, but who, for all other purposes, have been
regularised and are fit to be absorbed into permanent posts as and when
they are vacant.

We, therefore, direct that a seniority list be prepared in the light of
the principles laid down by us. It is not for the court to find out
how many among the temporary Assistant Engineers are eligible for
permanency; how many have cleared all the requirements regarding
regular appointments even in temporary vacancies-in short, how many
must be deemed to have been appointed in a substantive vacancy though
F
temporary. That will be worked but by the State in the light of what
we have laid down. We do not agree with the High Court in the~
partly misleading reasoning it has adopted, but do concur in the conclu-
sion that the seniority list deserves to be set aside. We do .so in
partial allowance of the appeals and dismiss the writ petitions. Parties
G will be 'heard' by Government through written or oral r~presentations
as it chooses, when it prepares a seniority list but the principles we
have put down shall govern. The parties will bear their costs through-
out.

H
Appeals partly allowed.
Petitions dismissed.