Holding

All persons appointed in accordance with rule 3 or rule 19(2) of the 1959 Rules are deemed to have been appointed to the regular cadre of the Central Engineering Service, while those appointed otherwise are ex‑cadre and may be placed in a separate category.

Summary

The case concerned 51 engineers appointed by interview (UPSC) to the Ministry of Shipping & Transport (Roads Wing) who claimed they were regular cadre officers, while officers appointed by competitive examination argued that the interview appointees were ex‑cadre and should not enjoy seniority or promotion rights. The Delhi High Court held the interview appointments were ex‑cadre and valid only for temporary projects, prompting the Government to create two separate services – the Central Engineering Service (Roads) and the Central Engineering Pool – in 1976. The petitioners challenged this classification as violative of Articles 14 and 16 of the Constitution. The Supreme Court held that any appointment made under rule 3 or rule 19(2) of the 1959 Rules must be deemed regular cadre, while appointments not made under those provisions are ex‑cadre and may be classified separately. Accordingly, the Court ordered the Government to examine each case, confirm the classification, and review promotions made after 31‑May‑1974, while leaving earlier promotions undisturbed. The writ petitions and the appeal were disposed of in accordance with this order.

Issues considered

Whether engineers appointed by interview under the 1966 amendment are regular cadre officers or ex‑cadre posts.
Whether the classification of officers into a separate 'Pool' and 'Service' violates Articles 14 and 16 of the Constitution.
Whether the 1976 Rules creating two distinct services are valid and can be applied retrospectively.
Whether the 1966 amendment to the 1959 Rules has retrospective effect for appointments made before its date.

Legislation cited

Constitution of Indias. 14, s. 16, s. 309

Subjects

appointmentex‑cadresenioritypromotionservice rulesconstitutional lawArticle 14Article 16public serviceclassificationCentral Engineering ServiceUPSCinterview recruitment

Judgment

209

H. S. VERMA & ORS.
'
v.
SECRETARY, MINISTRY OF SHIPPING & TRANSPORT AND
ORS. ETC., ETC.
August 7, 1979
s·
, ' [Y. V. CHANDRACHUD, C. J., S. MURTAZA FAZAL ALI AND
E. S. VENKATARAMIAH, JJ.]
Con5titution of India 1950, Art. 14-Central Engineering Service Rules
1959-Two different modes of appointment of engineers-By exa1nination and ,
by interview-High Court holding 'interview' appointees, not part of the ser-
vice but to ex-cadre posts-Engineers placed in two categories-Central Engi-
neering Service (Roads), Group A for 'examina·tion' appointees. and Central
Engineering Pool, Group A for 'interl'iew' method appointees-Validity of.

The C~ntral Engineering Service (Roads) of the Ministry of Transport and
Communications, Department of Transport (Roads Wing)\ Class-I Recruitment
Rules 1959 provided that recruitment to the service shall ·be made by competi~
tive examination, by promotion and by transfer as provided for in Parts Ill, IV, D·
- V of the Rules. The Rules provided that no appointment shall be made to the
service or to any post borne oil the cadre of the service by any method,· not
specified in Rule 3. The Rules empowered the Government to determine the
methods of recruitment for filling any part_icular vacancy in the service.

An amendment introduced on August 2, 1966 to Rule 3 of the 1959 Rules
provided an additional method of recruitment viz. direct recruitment through E'
the UPSC in accordance with Part VI of the RUies. This Part provided that
in special circumstances recruitment by selection of candidates to the posts
mentioned in Appendix IV shall be made by the- Commission by open adver~
tisement, notwithstanding anything contained in the Rules.

Right from the inception selection of officers for Class-I posts ·was made by
an examination conducted -by the UPSC. After the introduction of r. 3(d) F'·
in the 1959 Rules in August 1966, 951 persons were recrui_ted by the UPSC by
\Vay of intcrvie\VS without~written examination. ·

. Some of the respondents who were officers selected by written examination
impugned the appointment of the 51 officers including the petitioners who were
working as Assistant Executive Engineers or Executive Engineers in the same
• wing on the ground that the appointment of these 51 officers was contrary to C:
the Recruitment Rules in that they were appointed in contravention of the
1959 Rules or in the alternative they contended that they should be treated to
have been appointed to ex-cadre posts and for this reason they were tiot eligible
for promotion to the posts of Executive Engineers, until the respondents were-
first appointed to those posts. Lastly the respondents contended that they were
entitled to be confirmed in preference to the petitioners. A similar writ peti-
tion \Vas filed by three Executive Engineers (among the present respondents) H
alleging that their recruitment by the method of examination was in accor-
dance with the Recruitment Rules but that the petitioners were appointed by
210 SUPREME COURT REPORTS (1980] ! S.C.R.

A mere interviews, at method not permissible under the Rules and therefore those
who were appointed by interview method could neither be confirn1cd nor pro·
moted unless they were brought into the cadre and appointed to the regular
cadre posts.

The l-ligh Court held that the Rules of 1966 had no retrospective operation
and that therefore an appointment made in contravention of' the rules could
B not be regularised by n1aking a rule under the proviso to Art. 309. It also
held that the petitioners \Ve_re appointed to temporary posts without any right
to become permanent, but since the temporary appointments were outside the
service and ngainst ex-cadre posts, Rule 3 of he 1959 Rules had no application
and for that reason their appointments could not be said to be illegaJ.

While the writ petitions were being argued orders were issued on August
c 28, 1973 by which persons who were appointed as Assistant Executive Engi-
neers by way of interview were deemed to have been inducted into the Engi-
neering Service as Assistant Executive 'Engineers with retrospective effect from
August 2, 1966 i.e. the date of induction of r. 3 (d) into the 1959 Rules.
Provisional seniority list was separately made for the different categories of
officers. This -order of August 28, 1973 was not however questioned before the
High Court.
D
In view of the decision of the High Court the Government withdre\\' and
cancelled the provisional inter se seniority list dated August 28, 1973 and at the
same time it issued a Notification to the effect that the officers appointed by the
interview method would be deemed to have been inducted into the Central Engi-
neering Service (Roads) C1ass-T Service as temporary officers in the grade with
effect from August 2, 1966.
E
On March 1, 1976 the Government issued a nonfication stating that it ,had
decided to set up two services called the Central Engineering Service (Roads)
Group 'A' comprising of officers appointed by the method of examination/
promotion and the other Central Engineering Pool, Group 'A' comprising of
officers appointed by the method of intervie\v. Rules in respect of both the
services were published and the inter-se seniority list of officers of the t\vo ser-
F vices were circulated to the concerned officers.
The Central Engineering Service Rules constituted a new service called
the Central Engineering Service (Roads) Group 1A' consisting of (a) persons
whO were holding posts in the various grades included in the Central Engineer·
ing Service (Roads) Class I immediately before the commencement of the
1959 Rules; (b) persons who were appointed to the old service on or after the
G date of commencement of the 1959 Rules, except those who have been •
appointed to the Pool Service; and (c) persons who may be appointed to the
new service after the commencement of the new Rules.
The Central Engineering Pool Group 'A' consisted of persons app<?inted to
the Roads Wing by competitive examination by the method of interview
through the UPSC before the commencement of the Pool Rules. A note
appended to r. 3 contained a clarification that the regular tenure service of the
H officers in the respective grade prior to their appointment to the Pool wo?ld
count for the purposes of qua1ifying service for promotion and confirmation
in the Pool in the different grades. Rule 5 authorised Government to
H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY 211

keep jn abeyance certain posts and operate them as "Isolated Posts" outside
,... ,./ the Pool. Promotions to higher posts in Pool were to be made on the recom~
mendations of the Departmental Promotion-_ Committee.
' In 1heir writ petitions the petitioners contended that though they were
appointed to the posts long before the respondents they were ranked n1uch
• below the latter in the list of seniority and that consequently they would be
• denied promotional opportunities to the higher posts, that their segregation
into a separate class called the Pool is totally unscientific and was in violation
of Articles 14 and 16 of the Constitution; and that the classification made
., " between the I)ool Officers and Service Officers is discriminatory and bore no
nexus with the object sought to be achieved by it.

HELD : · 1. Out of 40 posts of Superintending Engineers the Pool Officers
were occupying 27 posts whereas Service Officers held only 13 posts. There c
is a historical reason for this state of affairs. Recruitment on a very large
scale was made by the interview' n1ethod in 1962, 1964 nnd 1965 for execution
of certain urgent \vorks. 1\.fost of the petitioners hnd a longer standing though
not in a regular cadre, and naturally they \vere .occupying even the two posts
in the isolated category which ·were meant for officers belonging to the regular
cadre. [224D-E]

2'. The so called Pool created by the 1976 Rules consisted of stagnant ·water.
There is to be no fresh recruittnent to the Pool posts and, therefore, allocations
to the Pool would always be shared by a definite and predictable nun1ber of
officers. On the other hand, the other iving was a living and growing service
to which recruitment continued to be 1nade in subsequent years. Allocations
to that ¥.'ing would have to be in proportion to the tot3l nun1ber of officers
\vorking therein but in the very nature ·of things -there were budgetary cons- E
traints on the creation of additional posts. [224 F-G]

3. It cannot be said that persons holding shnilar posts and having similar
responsibilities to discharge could be classified into different categories for the
mere reason that so1ne of them were recruited directly by the interview method
and scme ·\\'ere recruited directly on the result of a competitive examination.
Were it permissible. to make such classification, ingenuity· may suggest the F
nature of curriculum in different years as the basis of classification. If subjec-
tion to different kinds of tests as a condition of eligibility produces qualitative
difference in the ability of persons rccn1ited to similar posts, it may perhaps
bccor!'.le necessary to limit the pron1otional opportunities, in regard to the rela-
tively higher posts to those whose abilities are remarkably higher. The Gover~
ment had nlade no grievance that the petitioners who \Vere appointed by the
intervie.w method were in any way inferior in ability, efficiency or educational G
, qualifications to those who \Vere appointed after a written competitive exami-
• nation. In the matter of experience too, the petitioners were in no '\Vay inferior
to the respondents. [224H-225C]

·4. Though classification \Vhich proceeds merely on the basis that certain
persons \\1ere recruited after going through one test and certain others after
going through another test would be unscientific, it cannot be said on the facts H
of the case that there could be no valid basis or justification for classifying the
various officers of the Roads Wing into separate categories. The appointments
212 rnPREME COURT REPORTS (1980] I S.C.R.

of some of the petitioners and some of the respondents were made in Violation
of the Rules which were in force at the relevant time. It is in respect of that
class of persons that the High Court held that they must be deemed to have
been appointed _to ex-cadre posts. Persons for whose appointments the neces-
sary legal sanction was wanting, were liable to be put out of employment b1:1t
in order to prevent any such harsh consequence, the High Court came to
record the finding that they must be held to have been appointed to ex-cadre
post. That finding must be taken to have been affirmed in these proceedings,
with the result that no action would lie hereafter for a declaration or any_
similar relief asking that their appointments were illegal. [225G-226B]

5. The fact remains that persons who were appointed contrary to ·the Rules,
but to ex-cadre posts, were taken initially for Purposes of certain projects. Their
precarious tenure was continued from time to time but that would not furnish
justification for treating them on the same footing as others whose appointments
were made strictly in· accordance with Rules and who were appointed to posts
borne on the cadre of the Central Engineering Service. A division of these
two classes of officeiS into separate categories would remove possible injustice
to those who were appointed to cadre posts in that, their. promotional oppor-
tunities would not be blocked or hindered by ex-cadre officers who were
recruited on a large scale to meet an urgent necessity. Such a classification
would also minimise the injustice which would otherwise have been caused to
those who were appointed to ex-cadre poots. [226 C-BJ

,ORIGINAL JURISDICTION : Writ Petition No. 159 of 1977
(Under Article 32 of the Constitution)
AND
CIVIL APPEAL NO. 1275 of 1975
Appeal by special leave from the Judgment and Order dated
28-9-1973 of the Delhi High Court in Civil Writ No. 536/70.
AND
.JI WRIT PETITION NOS. 1211 of 1977 and 3795 of 1978
(Under Article 32 of the Constitution)
. '
Dr. Y. S. Chitale, P. H. Parekh and C. B. Singh for the.Petitioners
in W.P. 159/77 and appellants in C.A. 1275/75.
M. K. Ra.mamurthi, Janardhan Sharma and litendra Sharma for
.G the Petitioners in W.P. 1211/77.
]. M. Khanna for the Petitioners in W.P. 3795/78 and RR 6, 12,
13 and 16 fa the Appeal.
••
U. R. Lalit, E. C. Agrawala and Miss A. Subhashini for R. I in
W.P. 159/77, 3795/78.
M. Mudgal for RR 12, 14 and !Sin W.P. 159/77.
H. B. Datar and B. P. Singh for RR 2-5 in CA 1275/75, RR 27-
H. S. VERMA v. SHIPPING & TRANSPORT MIKISTRY 213
(Chandrachud, C. J.)
A
30, 38-40, 42, 44, 47, 49-52 in W.P. 159/77 and R. 4 in W.P.
3795/78.
C. N. Murthy and R. Vasudevan for RR 19-21 and 24 in CA.
1275/75, RR 42, 44, 118 and 150 in WP No. 1211/77.
In pqson. (R. 53 in W. P. 159/77).
B
COUNSEL FOR THE PARTIES APPEARING PURSUANT TO
NOTICE:
., I o. P. Slwrl!Ul, J. M. Khamw, A. Subba Rao and B. P. Singh in
Writ Petition No. 159/77.
C. N. Murthy and R. Vasudevan in W.P. No. 1211/77 and RR at c
SI. Nos. 42-44 and 115-118 of pnblished Notice in W.P. No. 159/77.
Jitendra Shanna in W. P. No. 1211/77
The Judgment of the Court was delivered by
CHANDRACHUD, C. J .-This is a group of Writ Petitions and an
D
Appeal involving the questions, mainly,
(i) whether the petitioners and the appellants recruited directly
as Assistant Executive Engineers, Executive Engineers,
Superintending Engineers and, may be, as Chief Engineers
were appointed to regul.ar cadres in the Ministry of Ship-
ping and Transport (Roads Wing), Government . o{ E
India, or whether they were appointed to ex-cadre posts;
and
(ii) whether they can be put into a separate class for the pur-
pose of regulating their seniority 'alld promotional oppor-
tunities in relation to others who were appointed to F
similar posts on the basis of the result of the Combined
Engineering Services Examination.
The petitioners and the appellants (whom we will refer to as the 'peti-
tioners') were appointed after a viva voce test only, or to use the
languagJ of the current controversy, they were appointed after being
successfully interviewed by the Union Public Service Commission. The G
latter mode of expression helps to highlight that no "examination" as
such was involved in their selection and appointment as in the case
.of those others who now figure in the array of respondents.
Some of the respondents herein, who were then working as Assi.<;-
tant Executive Engineers in the Ministry of Shipping and Transport B
(Roads Wing), filed a Writ Petition (C.W. 536 of 1970) in the Delhi
High Court against 51 officers, including the present petitioners, who
214 SUPREME COURT REPORTS [ 1980] J S.C. R.

A were working either as Assistant Execµtive Engineers or as Executive
Engineers in the same Wing. Their con_tention was that the appoint; \...,,
ment of these 51 officers being contrary to the recruitmeQt rules was
illegal or alternatively, tbat tbey were appointed to ex-cadre posts and "
not to the 'Central Engineering Service'. .!} wa.s therefore claimed
B
thai none of those officers was eligible for promotion to the post of '
Executive Engineer until the respo11.dents were first appointed to tbose '
posts and that the respondents were entitled to be confirmed witb

c
immediate effect in preference to 1hose officers immediately on the
availability of permanent vacancies.
A similar Writ Petition (C.W. 537 of 1970) was filed in the Delhi
High Court by three Executive Engineers, who are amongst the pre-
I .,,..

-Cl

sent respondents, contending that whereas their appointment after ..
passing a COl]lpetitive examination beld by the U.P.S.C. was in accor-
dance with the recruitment rules, the present petitioners were appoint-
ed to ex-cadre posts after a mere interview, that such a method of '
,./-
--'..
recrnitment was not permissible under the rules, that the petitioners
D herein were appointed for the limited purpose of assisting in the execu-
tion of certain projects and that those who were appointed in accor-
d!ince with the rules were entitled to be treated as senior to those who
were not. It was for ihese reasons contended that Executive Engineers
who were appointed by the interview method can neither be confirmed
E nor promoted unless and until they were brought into the cadre and
appointed to the regular cadre posts.
The Rules which are alleged to have been breached by the appoint-
ment of the petitioners were made by the President under the proviso

F
to article 309 of the Constitution. They were notified on October
16, 1959 and were called 'the Centml Engineering Service (Roads)
of the Ministry of Transport and Communications, Department of
•
Transport (Roads Wing), Class I, Recruitment Rules, 1959'. The
Rules, evidently, did not prov1ide for appointment to the Central Engi-
neering Service after a mere interview of a candidate by the Union
Public Service Commission. But they were amended by a Notifica-
G tion dated August 2, 1966 issued by the President under the proviso
to article 309 of the Constitution. By the amendment, clause (d)
was added to rule 3 as a. result of which appointments could he made
to the Central Engineering Service by direct recrnitment through the
Commission in accordance with Part VI of the Rules. Part VI of
the amended Rules called 'Direct recruitment by selection through the
B Commission provided that in special circumstances, direct recruit-
ment by selection of suitable candid.ates, with such qualifications, with-
in such age limits, and satisfying such other conditions as are consi-
H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY 215
(Chandrachud, C. l.)
dered necessary at any time in the interest of the service, to the posts A
mentioned in Appendix IV, shall be made by the Commission by
open advertisemen! notwithstanding anything contained in the rules.
Certain other consequential ameudments were made to the 19S9 Rules
i
by the 1966 Am«Q.dJ!lent.
The question V{hich arose for decision of the Delhi High Court B
in the two writ petitions was whether the appointme11ts of the petitioners
j herein, who ~ere appointed prior to August 2, 1966 were illegal and
if not, whether they were apn0inted to cadre posts or ex-cadre posts.
On behalf of the Governme!J! of India a counter affid~vit was filed
i• the High Court by Shri Harbans Singh, Under Secretary in the
Ministry of Tran§Jlort (Roads Wing), denying that ~e petitioners c
were appointed to ex-cadre posts or that they were treated by the
Ministry as_ being outside the regular cadre of Engineering Service.
Counsel for the Union of India submitted in. the High Court that all
posts of junior CT\!Ss-I Assistant Engineers Consultant (as the Assis-
tant Executive Engineers were then called) created in the Ministry of
Transport, Roads Wing, were posts in the service properly so-called D
whether the appointments were made on a permanent basis or tempo-
rary basis. Counsel for some of the petitioners contended in the High
Court that the amendment made ig 1966 to the 1959 Rules ·was re·
trospective and therefore the appointment~ of the petitioners could
be considered to have been ma<le in accordance with the rules to !he
J'OSts borne on the cadre of th« Engineering Service.
1
The Delhi High Court was faced with a problem of priorities. If it
were to accept the Government of India's C()ritention that the peti-
tioners were appointed to cadre posts, their appointments might have
been required to be treated as illegal since appointments to posts borne
en the cadre could not be made by the il)terview method under the F
1959 Rules. AllY finding or indication to such effect would have
paved the way for a challenge to the very legality of the petitioners'
~ppointments and eventually to their exit from the Engineering De-
partment altogether. On the other hand, accepting th.!' respondents'
contention that all of them had to be confirmed and promoted in
preference to the petitioners would, :While legalising the petitioner's G
•
• appointments, virtually amount to denial of .Promotions to them in
higher posts.
By its judgment dated September 28, 1973 a Division Bench of
the Delhi Jligh Court h~ld !~t the Rules of .1966 had no retrospec-
tive operation. Relying upon a decision of this Court in R. N. Nan- H
jutuiBppa v. T. Thimmaiah and Anr.( 1) the High Court further held
(l) AIR 1972 SC 1767.
15-475 SCl/79
216 SUPREME COURT REPORTS [1980] 1 S.{;.R.

A that, in any case, an illegal appointment could not be regularised by
making a rule under tlie proviso to Article 309 of the Constitution.
But in order to save the petitioners' appointments from the challenge
of 1llegality, the High Court rejected the Government's contention
that they were appointed to cadre posts in the Central Engineering
B Service. It held that !,he petitioners were appoi,nted to temporary
posts without any right to become permanent, for the purposes of
projects like the International DevelopmeJ!t Association Loan Pro-
gramme, Emergency RO'ad and Bridge Works Programme and Lateral
Road Project and Strategic Roads Work. Since the temporary ap-
pointments of the petitioners were outside the service and against ex-
c cadre posts, rule 3 of the 1959 Rules was regarded as having no appli-
cation and therefore, the petitioners' agpointments could not in any
way be said to be illegal. The High Court relied upon a decision
of this Court in Champaklal Chimani(ll Shah v. The Union of
India(') and held that the Governme~t has to employ temporary
servants to satisfy the needs of urgent contingencies and such appoint-
D ments are perfectly )egitimate. So long as such temporary servunts
work against ex"cadre posts and are eveh promoted to higher ex-cadre
posts, no member of the Service, accon/ing to the High Court, could
have a justifiable grievance.
I
While the writ petitions were being argued in the High Court,
orders expressed in the name of the Prtsident were issued on August
E
28, 1973 by which persons appointed as1Assistant Executive Engineers
on thf> basis of interviews held by the U.P.S.C. were to be 'deemed
to have been inducted' into the Erigin~Jring Service as Assistant Exe-
cutive Engineers with effect from August 2, 1966. On the same date,
provisional joint-seniority lists were issued separately for different
F categories of Class· I Technic'!l Gazetted Officers in the Roads Wing
of the Ministry and representations from the concerned .officers were
,.
invited within a period of one month. The parties requested the High
Court to dispose of the writ petitions without taking into coru;ideration
the effect and legality of the Presidential order dated August 28, 1973
and the provisional seniority lists circulated on that date. Accord-
G ingly, the High Court did not pronounce upon the same.
In C.W. 536 of 1970 filed by 4 Assist;mt Executive Engineers who
were ,appoined by competitive examination, against 4 Executive Engi-
neers and 47 Assistant Executive Engineers who were appointed by
the interview method, the High Court passed the following order :
H "To summarise the position, it may be stated that res-
pondents 2 to 52 were not appointed to the Service or to
(l) AIR 1964 SC 1854.
H. S. VERMA V. SHIPPING & TRANSPORT MINfSTRY 217
(Chandrachud, C. l.)
A
..../' any posts borne on the cadre of the Service. Their appoint-
ments were to ex-cadre posts and outside the Service and
those appointments were valid. The orders by which respon-
dents 2 to 6 were promoted as Executive Engineers are not
' liable to be quashed as it could not be shown that the promo-
tions were made to the posts borne on the cadre of the Ser- B
vice or that a.s a result of those promotions the respondents
came to be appointed to the Service. Their initial appoint-
ments as well as promotions have been outside the servkc
and not to any posts borne on the cadre of the Serv:ce.
There is also no question of giving any directions for not
promoting any of the respondents to the posts of Executive c
Engineers so Jong as the promotions are not tQ posts borac
on the cadre of the Service. As respondents 2 to 52 were
not appointed to the Service or to any posts borne on the
cadre of the Service, the only relief to which the petitioners
are entitled is that the Union of India shall not, so long as
the said respondents arc not legally appointed to the Ser- D
vice or to. any posts borne on the cadre of the Service,
treat them as having been appointed to. the Service or pro-
mote them to •any posts that may be included in the cadre
of tht~ Service."
A
E
C.W. 537 of 1970 was filed by 3 Executive Engineers against 10
Executive Engineers, 2 of whom were promoted as Superintending
Engineers. All the three petitioners in that writ petition were appoint-
ed by competitive examination, two in 1957 and one in 1958, that is
to say, before the making of the 1959 Rules. Respondents 2 to 11
to that writ petition were appointed by the interview method. T!,e F
question whether the petitioners in that writ petition, having been
appointed prior to 1959 Rules, could be deemed to have been appoint-
ed to the regular cadre of the Central Engineering Service was not
considered by the High Court since the legality of their appointment
was not in issue. While dismissing the writ petition the High Court
, held: G.
• "As respondents 2 to 11 were not appointed to the service
and no posts have so far been declared to be post's borne on
the cadre of the Service it follows that they are holders of ex-
cadre posts outside the Service. The promotion of any one
of them to the higher post of Planning Officer or Snperintend- H
ing Engineer cannot legally be objected to by the petitioners.
Even if somehow the petitioners can be regarded to have been
218 SUPREME COURT REPORTS [1980] l S.C.R.

A appointed to the Service, as was asserted Oil their behalf,
still respondents 2 to 11 having been directly •elected as
Executive Engineers ai:ainst ex-cadre posts can in their turn
Mpire for promotion to higher ex-cadre posts. . . . . . . . . .
The appointments of respondents 2 to 11 to ex-cadre posts •
were in no way invalid."
lB
In both the writ petitions the High Court made a significant obser-
vatien, to which events leading to the present proceedings may perhaps
be traced, that if it was desired by the Government of Indra that per-
sons who were appointed against ex-cadre posts should also become
members of the regular Service, the service shall have fo be reconsti-
c tuted by providing, amongst other matters, for the initial constitution
of the Service, future recruitment and determination of inter u:
seniority.

On May 31, 1974 the Government of India in the Ministry of
Shipping and Transport (Roads Wing) issued a Memorandum saying
D that in view of the judgments pf the High Court in the two writ peti-
tions, the provisional inter se Seniority Lists dated August 28, 1973 o.f
WI Cass I Technical G~et!OO Officers appointed fo the various grades
in the Roads Wing were being withdrawn and cancelled.
On the same date, that is, on May 31, 1974 the President issued
E a Memorandum in each individual case cancelling the orders issued
under an earlier Memorandum dated August 28, 1973. By the latter
Memorandum orders were issued in each individual case that officert
appointed by the interview method will be deemed to have been induct-
ed into Central Engineering Service (Roads) Class I Service as tem-
porary officers in the particular grade with effect from August 2, 1966
F being the date on which the 1959 Rules were amended so as fo provide
for appointment by the interview method. The Memorandnm of Ma,y
31, 1974 contains a recital to the effect that it had become necessary
to issue it in view of the judgment of the Delhi High Court in Writ
Petition No. 536 of 1970 holding that the Assistant Executive Engineer~
could not be treated as having been appointed to any post borne on the
G cadre of the Central Engineering Service.
On March 1, 1976 the Govermnent of India issued a Notification
saying that having regard to the judgments of the High Conrt in Civil:
Writ Petitions 536 and 537 of 1970, the Government a.fter a most care-
ful consideration h:id decided to set up 2 Services for T~hnical Class
,_ H I Officers of the Roads Wing, one to be called the Central Engineeriugi
Service (Roads), Group A, comprising of officers appointed by illie
method of examination/promotion, and the other, to be called the
H. S. VERMA v. SHIPPING & TRANSPORT MINISTRY 219
( Chandrachud, C. l.)
Central Engineering Pool, Group A, comprising of officers appointed A
' by the method of interview. The recruitment Rules for the two Ser-
Yices were published in the issue of the Gazette of Indfa dated Febru-
ary 28, 1976. Two List's, one showing the nrunes of officers appoint-
ed to the two Services on the date of the commencement of the new
Rules and the other showing the inter se seniority of the officers of the
two Services, were circulated to the officers concerned with a request
B
to bring to the notice of the Government any factual errors or omissions
· and to submit representations, if so advised, against the proposed
Seniority Lists within one month.
We will notice the relevant rules before proceeding to consider the
validity of the petitioners' contentions. c
On October 16, 1959, the President in the exercie of powers con-
ferred by the proviso to article 309 of the Constitution made rules
cilled 'the Central Engineering service (Roads) of the Ministry of
Transport & Communications, Department of Transport (Roads Wing),
Class I, Recruitment Rules, 1959'. At the time of promulgation of
these Rules, Assistant' Executive Engineers used to be called Assistant D
Engineers Consultant and Executive Engineers as Divisional Engineers
Consultant. Part II of the Rules containing rules 3 to 5 dealt with
the method of recruitment fo the Central Engineering Service (Roads).
Rule 3 provided that recruitment to the Service shall be made by any
of the following three methods : (a) By competitive examination In
aceordance with Part III of the Rules; (b) by promotion in accordance E
with Part IV of the Rules; and (c) by transfer of an officer in Gov-
.ernment service in accordance with Part V of the Rules. Rule 4
(b) provided that no appointment shall be made to the Service or to
any post borne on the cadre of the Service by any method not speci-
fied in rule 3. By rule 4(c) Government was given the power to deter-
mine, subject to the provisions of sub-rule (3), the methods of recruit-
ment to be employed for the purpose of filling any particular vacancy
in the Service or such vacancies !'herein as may be required to be
filled during any particttlar period and the number of candidates to be
recruited by such method. Rule 4(d) provided for reservation in the
•• ratio of 2/3 : 1 /3 to Assistant Engineers Consultant and Assistant G]
Engineers, Grade I (Class II) respectively in the matter of promotion
to or for selection for the post of Divisional Engineer Consultant. Rule
4 ( d) contained an important qualification to the effect that if sufficient
number of suitable candidates were not available for promotion from
the grade of Assistant Engineer Consultant and Assist'llnt Engineer
Grade I to the grade of Divisional Engineer Consultant, the remaining H J
vacancies in the grade of Divisional Engineer Consultant were to be
filled by transfer in accordance with Part V of the Rules.
220 SUPREME COURT REPORTS [1980] l S.C.R.

A Part III of the Rules containing rules 6 to 18 dealt with recruitment
to the Service by competitive examination. Part IV containing rule
19 dealt with recruitment by promotion to the grade of Divisional
Engineer Consultant, Class I. Sub-rule (2) of rule 19 provided that
if sufficient number of officers were not available to fill the quota ot
either of the two categories mentioned in rule 19 (1) (i) the remain-
B ing vacancies in each category were to be filled either in accordance
with Part V of the Rules or through the Commission.

Part V of the Rules which dealt with recruitment by transfer of an
officer in Government service provided that the Government may, in
special cases and after consulting the Commission whern such consul-
c tation was nece8sary under the Union Public Service Commission
(Exemption from Consultation) Regulations, transfer or take on depu-
tation an officer in Government service in India to a post borne nn
the cadre of the Service.
On August 2, 1966 the Rules of 1959 were amended in exercise of
D powers conferred by the proviso to article 309 of the Constitution. The
first signifiC'ant amendment made iu 1966 was the addition of clailse ( d)
to rule 3 of the 1959. Rules. By that clause au additional method or
recruitment was provided, namely, 'By direct recruitment through the
Commission in accordance with Part VI' of the Rules. Consequential

E
amendment& were made to clauses (c) and (d) of rule 4 of the 1959
Rules. By rule 4 of the Amendment Rules, the concluding words "or
...
through the Commission" of rule 19(2) of the 1959 rules were omitted.
Lastly, a new part, Part VI, was added to the 1959 Rules under the
heading "Direct recruitment by selection through the Commission" -
The newly added Part VI provided that-
F In special circumstances, direct recruitment by selection
of suitable candidates, with such qualifications, within such
age limits, and satisfying such other conditions as are consi-
dered necessary at any time in the interest of the service, to
the posts mentioned in Appendix IV, shall be made by the
Commission by open advertisement notwithstanding anything
contained in these rules. ••
The Central Engineering Pool Group 'A' of the Ministry of Ship-
ping and Transport (Roads Wing) Rules, 1976 and the Central Engi-
neering Service (Roads) Group 'A' of the Ministry of Shipping and
Transport (Roads Wing) Rules, 1976 made under the proviso to arti-
l e cle 309 of the Constitution were notified on February 24, 1976. We
will refer to the former as the 'Pool Rules' and to the latter as the
'CBS Rules'.
H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY !21
( Chandrachud, C. J.)
Turning first to the Pool Rules, rule 2(a) defines "Pool" as the A
' "Central Engineering Pool, Group 'A', constituted under rule 3". Rule
2 ( e) provides that "Regular continuous Service" means service
rendered on a continuous basis after regular appointment to a grade
on the recommendations of the Departmental Promotion Committee,
or in consultation with the Commission, as the case may b6. B
I
:· Part II of the Pool Rules which deals with the constitution of the
Central Engineering Service Gronp 'A' provides that there shall be
constituted a pool, to be known as the "Central Engineering Pool Group
'A' ", consisting of persons appointed to the Roads Wing by the com"
petitive selections by the method of interview through the Commission c
before the commencement of the Pool rules. The note appended to
... rule 3 contains a clarification to the effect that the regular continuow;
service of the officers in the respective grade in the Ministry of Ship-
ping and Tmnsport (Roads Wing) prior to their appointment to the
Pool will count for the purposes. of qualifying service for promotion and
confirmation in the Pool in the grade of Assistant Executive Engineers, D
Executive Engineers, Superintending Engineers and, Chief Engineers
(Level I and Level II poS".s). By rule 5, the authorised strength of
the various grades of posts in the pool shall be such as may be deter-
mined and notified by the Govern_ment from time to time, provided that
;. the Government may, for reasons to be recorded in writing and in
E
consultation with the Commission, keep in abeyance such number of
posts in such grades as are included in the table below rule 4 and ope-
rate them as "isolated posts" outside the Pool. Appointments to
the "isolated posts" are to be made by selection or promotion,
as the case may be, on the recommendoation of a duly constituted De-
partmental Promotion Committee, from an integrated list of officers F
working in the next lower grade in the Pool and in the Central Engi-
neering Service (Roads), Group 'A'. The list is to be drawn up on
the basis of the length of their regular continuous service in their res-
pective grades. The qualifying service for promotion is the same as
faid down in Part III. By rule 6, recruitment to the grades of Execu-
• tive Engineer, Superintending Engineer and Chief Engineer (Level II G
and Level I) in the Pool shall be made by promotion in accordance
with Part III, provided that a vacancy in these grades, whenever it
' .-\ --{
occurs, shall first be filled by transfer of an officer of the Pool holding
a corresponding post in the "isolated category of posts" in oaccordance
with the proviso to rule 5.
H
Part III of the Pool Rnles deals with recruitment by promotion to
the grades of Executive Engineer, Superintending Engineer and Chief
222 SUPREME COURT REPORTS [1980] l S.C.R.

A Engineer. These promotions are required fu be made on the recom- ,
mendations of the Depa11mental Promotion Committee.
The CES Rules contain provisions governing appointments to the
Central Engineering Service as contrasted with appointments to the
posts in the Pool. By rule 3 of the CES Rules a new Service called
B the "Central Engineering Service (Roads), Group 'A'" is constituted
of (a) persons who were holding posts in the various grades included
in the Central Engineering Service (Roads) Class I immediately be-
fore the commencement of the 1959 Rules, (b) persons who were
appointed t() the old Service on or after the date of commencement of
the 1959 Rules, except those who have been appointed to the Pool.
c Service and ( c) persons who may be appointed to the new
Service after the commencement of the new Rules. Rule 3 (3) con-
1'ains a proviso regarding isolated posts which is similar to the proviso
to rule 5 of the Pool Rules. By rule 3 ( 4), recruitment to the Service
after the initial constitution thereof has to be made either by compe-
titive examination or by promotion or by selection or by transfer or
D deputation of an officer in Government service or by direct recru11ment
through the Commission. The proviso to this sub-rule says tha.t a
vacancy in the grades of Executive Engineer, Superintending Engineer
and Chief Engineer (Level II and Level I), whenever it occurs, shall
first be filled by the uppointment of an officer of the Service holding a
E corresponding post in the "isolated category of posts" in accordance
with th.e proviso to sub-rule (3).
The validity of these rules is assailed before us in these Writ Peti-
tions and the Appeal. The main grievance of the petitioners is that
though_ they were appointed to their posts long before the contesting
respondents, they will rank much below the latter in the list of seniority
F and will consequently be denied promotional opportunities to the higher
posts. It is contended on behalf of the petitioners th'at their segregation
into a separate class called the Poot is totally unscientific and is in
violation of the provisions of articles 14 und 16 of the Constitution.
The petitioners made no grievance against the creation of the category
G of 'isolated posts' but their contention is that the classification made
between the- Pool Officers •and the Service Officers is discriminatory
and bears no nexus with the object to be achieved by it. If the object of
the dassification is to ensure higher efficiency in the Central Engineer-
ing Service, it is contended that the petitioners, who have rendered
meritorious service for the past many years and for longer periO<Js than
H the contesting respondents, cannoi be put into a separate class thereby
denying to them an equal opportunity for promotion to higher posts
along with those junior officers who are put into the class of Ser:vice
H. S. VERMA V. SHJPPINC! ~ TRANSfORT MINISTRY 223
(Chandrachud, C . .I.)
Officers. Sl)ri Chitale, who led the argument on behalf of the peti- A
tiQn,~s, demQnstra.te4 to us by a comparative examination of the allo-
c.a~<)ll of poi;ts made by the Government to the two categories in the
' eJ(qcis(l qf IJ)e pe>wer conferred upon it by the 1976 Rules, thati where-
as, 15 posts of Superintending Engineers are available for 19 Executive
E,ngineers in the Service Class, in so far as the Pool Officers are con- B
. I cerned on,ly 17 posts in the grade of Superintending Engineer have been
allf)CatC<I for as. many as 69 Executive Engineers. Out of 15 post' of
Superiptending Engineers available for the Service category, 13 are
Wt in the Service class and 2 in the isolated category. Out of 17 posts
of Superintending Engineers available for Pool Officers, 8 are put in
the Pool and 9 in the isolated category. This broadly is the grievance c
of the petitioners.
As against this, Shri Lalit appearing on behalf of the Union of India
contends that the judgment rendered by the Delhi High Court in the
two writ petitions left no option to the Government save to classify the
petitioner8 in a separate category. Counsel says that in spite of the
D
contention of the Government that the petitioners were appointed to
cadre posts in the regular Service, the Delhi High Court held in the
writ petitions that petitioners were appointed to ex-cadre posts and
that if their appointments were to be treated as having been made to
<:adre posts, the appointments would be illegal, being in contraven-
lion of the rules then in force. The High Court having held that the E
petitioners were appointed to ex-cadre posts, there is a valid basis for
classifying the petitioners in a separate category qua others whose
appointments were made in accordance with the rules. It is denied
on behalf of the Government that any substantial prejudice is likely to
result to the petitioners on account of the classification made by the
1976 Rules. Jn fact, Shri Lalit urged as one of his strongest F
points that granting everything in favour of the petitioners,
the classification did not bring about such hostile discrimi-
nation against the petitioners that this Court should take
notice of it. It is argued that it is not the 1976 Rules which have
created two distinct classes but such classes existed independently of
• the rules, by reason of the fact that persons like the petitioners were G
appointed contrary to the rules while the contesting respondents were
appointed in conformity with the rules. There is no obligation on the

-:../
i Government, it is contended, to integrate two distinct and different
classei. of employees in order to bring about equality between them.
Shri H. B. Datar appearing for some of the contesting respondents H
~upported the arguments advanced on behalf of the Government of
India and contended that since the appointments of the petitioners who
224 SL'PREME COURT RE:PORTS (1980] 1 S.C.R.

A were appointed by the interview method were at any rate under a
cloud the Government was driven to classify them separately in order
lo protect their tenure which was essentially precarious and insecure.
The object of classifying the petitioners separately, far from being to •
subject ihem to hostile discrimination, is to confer upon them a status
which could easily and justifiably be denied to th<lm. The Govern-
B
ment, according to Shri Dadar, has been more than fair to the peti·
tioners firstly, by condoning the illegality which had .crept into their
appointments and, secondly, by allocating to them a sufficient number
of posts of promotion. No grievance could be made by the peti-
tioners that the Government is generous but not generous enough.
c We are not disposed to accept Shri Chitale's contention in its
entirety that any great prejudice has been occasioned to the petitioners
as a resulci of the classification made by the 1976 Rules. Out of 40
posts of Superintending Engineers, the Pool Officers are occupying 27
whereas the Service Officers hold 13 only. The' break-np is as follows.
Out of these 40, 19 are placed in the isolated category. These 19
D posts and 8 posts of Superintending Engineers in the Pool are occu-
pied by the Pool Officers. There is a historic reason for this sfate of
affairs. Recruitment on a very large scale was made by the interview
method in 1962, 1964 and 1965 for the execution of the International
Development Association programme, Emergency road and bridge
E works progra1nme, Lateral Road Project and Strategic Road works
in Gujarat and Rajasthan. Most of the petitioners have a
longer standing, though not in the regular cadre, and naturally
they are occupying even the t'wo posts, in the isolated eo~tegory which
are meant for officers belonging to the regular cadre.
It is also necessary to remember, while asse,ssing the strength of the
F petitioners' grievance of hostile discrimination thatl the so called Pool
created by the 1976 Rules consists of stagnant water. There is going
to be no fresh recruitment to the Pool post's and therefore, allocations
to the Pool will always be shared by a definite and predictabie num-
ber of officers. On the other hand, the other wing is a living and
G
growing service to which recruitment will continue to be made in years
to come. Allocations to that wing will of course have to be in pro-
•
portion to the total number of officers working therein but in the very
nature of things there are budgetary constraints on the creation of addi-
tional posts. \,.:: ~
Even though this is so, we are unable to accept the contention
that pe.-sons holding similar posts and having similar responsibilities
H to discharge can be classified into different categories for the mere
reason that some of them were recruited directly by the interview
method and some were recruited directly on the result of a com-
H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY 225
(Chandrachud, C. J.)
petitive examination. Were it permissible to make such classifications,
ingenuity may suggest the nature of curriculum in different years as
the basis of classification. If subjection to different kinds of tests
' as a condition of eligibility produces qualitative difference in the
ability of persons recruited to similar posts, it may perhaps become
necessary to limit the promotional opportunities, in regard to the
relatively higher posts, to those whose abilities are remarkably higher.
But, it is nobody's case and the Government has made no grjevance
that the petitioners who were appointed by the interview method are
in any way inferior in ability, efficiency or educational qualifications
to those who were appointed after a written competitive examina-
tion. In the matter of experience too, the petitioners are in no way c
inferior to the contesting respondents.
Both the sides urged, though for different reasons, that at least
some of the Executive Engineers can be justifiably treated differently.
On behalf of the Government Shri Lalit urged that 10 out of 69
Executive Engineers from the 1962 batch were parties to the Delhi
B:igh Court judgment in Writ Petition 536 of 1970 (out of which
Civil Appeal 1275 of 1975 arises). The Delhi High Court having
held that their appointments are to ex-cadre posts, no grievance, it
is urged, can be made by them at any rate, if they are treated diffe-
rently. On the other hand, Shri Chitale contended that the appoint-
ment of those Executive Engineers was in accordance with rule
E
19(2) of the 1959 Rules since they were appointed because no one
was available from the Department for being promoted as Executive
Engineer.
We do not want to add to the confusion in which these matters,
like most of the service matters abound, by putting our seal of appro-
val on a sub-classification amongst Executive Engineers depending F.
on whether their appointments were within or without the scope of
rule 19(2). It is in the interest of all concerned !o evolve a uniform
pattern which will, in so far as is reasonably possible, cause injustice
to none.
Though cla•sification which proceeds merely on the basis that G
• certain persons were recruited after going through one test and cer-
tain others after going through another test would be unscientific, it
cannot be said on the facts of the instant case that there can be
) no valid basis or justification for classifying the various officers of the
Roads Wing into separate categories. As we have stated earlier, the
appointments of some of the petitioners and some of the respondents ff
were made in violation of the rules which were in force at the rele-
vant time. It is in respect of that class of person that the Delhi High
226 SUPREME COURT REPORTS [1980] l S.C-R.

Court was driven to hold that they must be deemed to have been
appointed to ex-cadre posts. Persons for whose appointments the
necessary legal sanction was wanting, were liable to be put out of
employment but in ()rder to prevent any such harsh consequence, the •
Delhi High Court came to record the finding that they must be held

• to have been appointed to ex-cadre posts. That finding must be taken
to have been affirmed in these proceedings, with the result that no
action· will lie hereafter for a declaration or any similar relief ask-
ing that their appointments are illegal.
But, the fact remains that persons who were appointed contrary
to the rules but to ex-cadre posts were taken initially for purposes
c of certain projects to which we have already referred. Their pre-
carious tenure was continued from time to time but that will not furnish
justification for treating them on the same footing as others whose
appointments were made strictly in accordance with the rules and
who were appointed to posts borne on the cadre of the Central Engi-
"D neering Service. A division of these two classes of officers into sepa-
rate categories will rell!ove possible injustice to those who were ap-
pointed to cadre posts in that, their promotional opportunities will not
be blocked or hindered by ex-cadre officers who were recruited on a
large scale to meet an urgent necessity. Such a classification will also
minimise the injustice which would otherwise have been caused to
E those who were appointed to ex-cadre posts.

Taking all relevant aspects of the matter into consideration we
propose to pass the following order which, it must be stated, was dis-
cussed by us quite at some length with all thei learned counsel appear-
ing in the case. In .fairness to them we must say that the order
~ which we propose to pass does not proceed from their consent though
they have helped to shape it.
( 1) All persons appointed in accordance with any of
the modes of appointment prescribed by rule 3 or
rule 19(2) of the 1959 Rules must be taken to have
G been appointed to the regular cadre of the Central •
Engineering Service. It will not be permissible to
classify them separately as 'pool' officers or other-
wise.

(2) Those whose appointments are not in accord-
H ance with any of the modes of appointment pres-
cribed by rule 3 or rule 19(2) of the 1959 Rules,
shall be taken to have been appointed to ex-cadre
H. S. VERMA v. SHIPPING & TRANSPORT MINISTRY 227
( Chandrachud, C. l.)
posts. Such persons may be classified into a sepa- A
rate category from those referred to in clause ( 1)
above.
(3) The Central Government will scrutinise the cases of
all persons involved in the present proceedings, who
have been placed in the 'pool'. The Government B
shall, upon such scrutiny, decide whether the appoint-
ment in each particular case was made in conform-
ity with rule 3 or rule 19(2) of the 1959 Rules. All
persons concerned may, if they so desire, submit
their representations to the authorities concerned
before 1st October, 1979. On consideration of the c
representations and upon examination of the rele-
vant material, the Central Government shall make
a declaration before 1st January, 1980 whether any
and which appointment was in aecoidance with rule
3 or rule 19(2) of the 1959 Rules and which was
D
against the same. The classification of the officers
concerned under clauses (1) and (2) iibove will
depend upon and be governed by the declaration to
be made by the Government.
( 4) Cases of all persons, who according to the declara-
tion to be made by the Government are wrongly E
placed in the 'pool', shall be reviewed by the Govern-
ment or by the appropriate authority as the case
may be. However, all promotions made prior to
31-5-197 4 will remain undisturbed. Promotions
made after that date shall be reviewed by the appro-
priate authority, as expeditiously as possible, in the F
light of the declarations made by the Government so
as to give to such officers the promotions which are
due. to them.
This OJder takes note of the grievance of those Jlersons also
who have been placed in the 'pool' but who contend that they have G
been wrongl,y i)!Cludell therein, since tib.eir appointments wen~ in
accordance with the 1959 Rules as they stOOd at the time of their
recruitment.

The Writ Petitions and the Appeal shall stand disposed of in
terms of this order. There will be no order as to costs. B

N.V.'.K:..