Holding

Temporary Assistant Engineers who were substantively appointed to temporary posts before the amendment are members of the service and their seniority must be reckoned from the date of appointment; the 1969 and 1971 amendment rules are arbitrary, irrational and unconstitutional.

Summary

The case concerned Assistant Engineers in Uttar Pradesh who had been substantively appointed to temporary posts before the 1969 and 1971 amendments of the U.P. Service of Engineers Rules. They claimed that the amendments, which made seniority dependent on appointment to substantive vacancies, violated Articles 14 and 16 of the Constitution and deprived them of vested rights. The Supreme Court held that such engineers became members of the service under the 1936 Rules and their seniority must be reckoned from the date of their appointment, irrespective of the later amendments. The 1969 and 1971 amendment rules were found to be arbitrary, irrational and violative of the equality clause, and were therefore quashed. The Court directed the preparation of a fresh seniority list based on the original rules and affirmed the High Court’s order.

Issues considered

Whether the 1969 and 1971 amendment rules, which retrospectively altered seniority computation for temporary Assistant Engineers, violate Articles 14 and 16 of the Constitution.
Whether temporary Assistant Engineers appointed substantively to temporary posts before the amendment are entitled to seniority from the date of their appointment under the 1936 Rules.
Whether the Office Memorandum of 7 December 1961 can override or amend statutory service rules.
Whether retrospective amendment of service rules can take away vested rights of officers.
Validity of the seniority list prepared under the amended rules.

Legislation cited

Constitution of Indias. Art.14, s. Art.16, s. Art.309
U.P. Service of Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, 1969s. Rule 3(c), s. Rule 5, s. Rule 6
U.P. Service of Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, 1971s. Rule 23
U.P. Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936s. Rule 23, s. Rule 3(b), s. Rule 3(c), s. Rule 5, s. Rule 6

Subjects

senioritytemporary appointmentservice rulesretrospective amendmentconstitutional lawArticles 14 and 16public serviceU.P. Service of Engineersequal protectionvested rights

Judgment

P.O. AGGARWAL & ORS. A
v.
STATE OF U.P. & ORS.

JUNE 8, 1987

[A.P. SEN AND B.C. RAY, JJ.] B

Constitution of India-Arts. 14 and 16-Va/idity ofrr. 3(c), 5, 6
)- and 23 of the U.P. Service of Engineers (Buildings and Roads Branch),
1936 as amended by the Amendment Rules of 1969 and 1971-Assistant
.,., Engineers substantively appointed to temporary posts prior to the
amendment of the Rules are entitled to have their seniority reckoned C
from the date of their appointment irrespective of the posts, held by
them remaining temporary-Rights vested in them under the 1936 Rules
cannot be taken away by giving retrospective effect to the Amendment
\.- Rules of 1969 and 197 I.

Rule 3(c) of the U.P. Service of En&ineers (Buildings and Roads D
Branch) Class II Rules, 1936 def"med 'direct recruitment' or 'direct
appointment' as recruitment or appointment of Assistant Engineers
in the manner prescribed in r. S(i), (ii) and (iii) thereof, after consulta-
tion with the Public Service Commission. Rule 6 empowered the
Government to decide in each case the source from which a vacancy
shall be filled up provided that 25% of the vacancies were reserved for E
promotion of persons selected from subordinate service<;. Rule 3(b)
thereof defined a 'member of the service' as a government servant
appointed in a substantive capacity. Rule 23 stipulated that seniority in
the service shall be determined by the date of order of appointment to
the service.
F
By an Office Memorandum dated December 7, 1961, the State
Government laid down that direct recruitment to the posts of Assistant
Engineers would be made on the results of a competitive examination
conducted by the Commission, the successful candidates being appoin-
ted in the order of merit against vacant permanent posts and, those
following, against temporary posts. It was further laid down that while G
50% of the permanent vacancies in the Department wonld be filled by
~ direct recruitment, 25% of them would be filled by selection from
amongst the temporary Assistant Engineers recruited through .the
Commission and for this purpose the temporary Assistant Engineers
already working in the Department who were appointed on the advice
of the Commission prior to the introduction of the new scheme and who H
427
I

428 SUPREME COURT REPORTS [1987) 3.S.C.R.

A possessed the requisite qualifications were given relaxation in the age- )..,.
limit upto 40 years for appearing in the competitive examinations to be
conducted by the Commission. As a measure of further concession to
the existing temporary Assistant Engineers, it was provided that ini-
tially 50% of the permanent vacancies would be filled up by selectfo,n of
temporary Assistant Engineers and only 25% thereof would be filled up
B by direct recruitment. The competitive examinations were held com·
mencing from the year 1962. ),

On July 28, 1969, the State Government brought into force the
U .P. Service of Engineers (Buildings and Roads Branch) Class II

c
(Amendment) Rules, 1969 with retrospective effect from March, 1962
amending inter alia rr_. 3(b), 3(c), S and 6 of the 1936 Rules to bring
them in line with the scheme enunciated in the Office Memorandum
dated December 7, 1961.
-
On November 26, 1971, r. 23 was amended by the U.P. Service of
Engineers (Buildings and Roads Branch) Class II (Amendment) Rules,
D 1971 as under:

"Except as provided for hereunder seniority in the service will lie
y
determined by the date of order of appointment in a substantive
vacancy .... ''

E The competitive examinations for direct recruitment of Assistant •
Engineers in accordance with the new Scheme were held upto the year
1971 and were discontinued by the executive instruction contained in •,,j --

Office Memorandum dated June 23, 1972 as it was felt that the system
had done more harm than good to the service.

F The respondents, who were directly recruited Assistant Engineers
appointed, after consultation with the Commission, to temporary posts
in the cadre upto 1961 challenged the seniority list prepared in 1980 in
terms of the Office Memorandum dated December 7, 1961 and the
Amendment Rules, 1969 and 1971 as violative of Arts. 14 and 16 of the
Constitution and prayed for determination of their seniority on the
G basis of the length of their continuous service in terms of the decision of ,
this Court in Baleshwar Dass & Ors. v. State of U.P. & Ors., [1981) 1 \
S.C.R. 449. The High Court allowed the petitions and directed pre-
paration of a fresh seniority list by treating the appointments of respon·
dents as substantive appointments to the cadre. The appellants in these
appeals were those temporary Assistant Engineers working in the
H Department who were selected for appointment to permanent vacancies

_ _ _ _ _ _ _ _ _ _ _ _ _ _. .;~Ji I I_ Kil Lii W
P.D. AGGARWAL v. STATE OF U.P. 429

...4 on the results of the competitive examinations held by the Commissinn . A

Dismissing the appeal, this Court,

HELD: There is no controversy that all those Assistant Engineers
who were substantively appointed to temporary posts in consultation
B
with the Commission and had been renderilig their service for long
)-. years till 1961 have become members of the service in accordance with
the provisions of the Rules. Therefore, on the bl!Sis of r. 23 as it was
Ir before the amendment made in 1971, these Assistant Engineers are
entitled to have their seniority reckoned from the date of their being

- members of the service, no matter whether they are holding posts which
remain as temporary for years together. The direct recruits appointed
on the basis of the examination held under the amended Rules cannot
c
encroach upon their rights In the matter of determination of their
~
seniority. [442E-H]

2. This Court, in Baleshwar Dass & Ors. v. State of U.P. & Ors.,
D
(1981] 1 S.C.R. 449, while holding that Office Memorandum dated
December 7, 1961 was not arbitrary In so far as it fixed the proportion
y of permanent vacancies to be filled from various sources, observed that
this scheme of 1961 could not stand In isolation and had to be read as
subordinate to the 1936 Rules. Hence, the aforesaid Office Memo-
random does not affect the petitioners who have become members of.the
service and are entitled to have their seniority reckoned from the date of E

.....
~
their being members of the service in accordance with r. 23 of the 1936
Rules. [440G-H; 441A-B]

3. The effect of the amendments made in rr. 3(b), J(c), Sand 6 is
~ that Assistant Engineers who have become members of the Service
being appointed substantively in temporary posts will no longer be F
members of the service and will have to wait till they are selected and
appointed as Assistant Engineers under r. S(a)(ii) against quota fixed by
r. 6 for this purpose. This creates serious prejudice to them and it also
creates uncertainty as to when they will be selected and appointed
against the quota set up for such selection under r. S(a)(ii). The
amended r. 23 Jays down that seniority will be determined from the date G
)-- of order of appointment in substantive vacancy. These provisions have
been made retrospectively effective from March 1, 1962 to the existin&
officers i.e., the respondents appointed substantively against temporary
vacancies. Such retrospective amendments cannot take away the ves-
ted rights. [444H; A-BJ
H
430 SUPREME COURT REPORTS ( 1987] 3.S.C.R.

A T.R. Kapur v. State of Haryana & Ors., JT (1986) S.C. 1092; ~
E.P. Royappa v. State of Tamil Nadu, A.I.R. 1974 S.C. SSS and
Manek11 Gandhi v. Union of India, A.LR. 1978 S.C. S97; relied on.

4. The Assistant Engineers who have already become members of
the service on being appointed substantively against temporary posts
B have already acquired the benefit of 1936 Rules for having their
seniority computed from the date of their becoming members of the
service. The Amendment Rules, 1969 and 1971 take away this right of
these temporary Assistant Engineers by expressly providing that those
Assistant Engineers who are selected and appointed in permanent
vacancies against 50% quota provided by amended r. 6 will only be
C considered for the purpose of computation of seniority from the date of
their appointment against permanent vacancies. Therefore, the
-
temporary Assistant Engineers are not only deprived of their seniority
but they arc driven to a very peculiar position inasmuch as they have to
wait until they are selected and appointed against permanent vacancies
in the quota set up for this purpose by the amended r. 6. There are
D about 200 Assistant Engineers who have been appointed substantively
by the Government with the approval of the Public Service Commission
before the enforcement .of 1969 Rules. The direct recruits appointed on
the basis of the examination against permanent vacancies will get prece-
dence over Assistant Engineers appointed in the matter of determina-
tion of their soniority in the cadre of Assistant Engineers on the basis of
E changed Rules, particularly amended r. 23, which takes into account
only appointments in substantive vacancies. The 1969 and 1971 Amend-
ments in effect take away from the officers appointed to the temporary
posts after selection by the Public Service Commission, the substantive
character of their appointment. These amendments are not only dis-
advantageous to the future recruits against temporary vacancies hut
F they were made applicable retrospectively from March 1, 1962 even to
existing officers recruited against temporary vacancies through Public
Service Commission. The Government has power to make retrospective
amendments to the Rules but if the Rules purport to take away tbe
· vested rights and are arbitrary and not reasonable then such retrosper-
tive amendments are subject to judicial scrutiny. [446B-H; 447A-CJ
G
S.B. Patwardhan v. State of Maharashtra, [1977] 3 S.C.R. 77S, 1
referred to.

S. The Office Memorandum dated December 7, 1961 which
purports to amend the U.P. Service of Engineers (Buildings and Roads
H Branch) Class II Rules, 1936 cannot override, amend or supersede

__________ ,_,,,,~
P.D. AGGARWAL v. STATE OF U.P. 431

statutory rules as it is nothing but an administrative order or A
instruction. The temporary Assistant Engineers who have become
members of the service after being selected by the Public Service
Commission in accordance with the service rules are entitled to have
their seniority reckoned in accordance with the provisions of r. 23 as it
was then, from the date of their becoming members of the service, and
this cannot be taken away by giving retrospective effect to the Amend· B
}- ment Rules of 1969 and 1971 as it is arbitrary, irrational and not
reasonable. [448B·D]

Sant Ram Sharma v. State of Rajasthan & Anr., [1968) 1 S.C.R.
l ll, referred to.
c
6. The Amendment Rules of 1969 read with the Amendment
Rules of 1971 adversely affect the rights of the Assistant Engineers
appointed to substantive posts prior to the introduction of these
amended Rules and create fetters for the long years of service being
ever considered for reckoning of seniority in the cadre of Assistant
Engineers. For promotion from Assistant Engineer to the post of Execu- D
live Engineer seniority-cum-merit is the criterion. These temporary
Assistant Engineers, unless they are selected to the 50% quota in perma-
nent vacancies reserved for promotion from the Assistant Engineers
appointed to temporary posts, will never have their service reckoned
for determination of seniority in the cadre. The respondents were
appointed long before the appointment of appellants as Assistant E
Engineers in permanent vacancies. The appointment of respondents
has been made in consultation with the Public Service Commission and
according to the decision in Baleshwar Dass's case the respondent
having become members of the Service they are deemed to be appointed
substantively in temporary posts. Therefore, the amended Rules, more
particularly rr. 3(c), 5 and 6 of 1969 Rules as well as r. 23 of 1971 F
amended Rules are wholly arbitrary and discriminatory and are viola-
tive of Arts. 14 and 16 of the Constitution. [448E; F; 449A-B)

Mohammad Shujat Ali & Ors. v. Union of India & Ors., [1975) 1
S.C.R. 449, referred to.
G
~ 7. The argument that the Amendment Rules were framed to
attract meritorious and talented engineers in the U.P. Service of
Engineers (Buildings and Roads Branch) as there were very little
prospects of promotion for such Assistant Engineers to be promoted to
the higher posts owing to the large number of Assistant Engineers
appointed to temporary posts cannot be sustained, firstly, because it H
432 SUPREME COURT REPORTS [ 1987) 3.S.C.R.

seriously prejudices the rights of the Assistant Engineers appointed
A substantively to the temporary posts and working as Assistant
Engineers for a number of years and secondly, because this process
of direct recruitment against permanent vacancies was discontinued
after 1971 as it worked injustice and had led to patent discrimina-
tion. [449C-F)
B
8. When recruitments to a particular service are made from more
than one source, quota and rota may be introduced consistent with the
equality clause envisaged in Arts. 14 and 16 of the Constitution. In the
instant case all the Assistant Engineers whether appointed in a tern·
porary post of the cadre or in the permanent post of the cadre are
recruited directly from graduates in Civil Engineering. The only differ·
c ence is that due to exigencies of service a large number of Assistant
-
Engineers were recruited against temporary vacancies. Under the 1936
Rules the Assistant Engineers appointed against temporary vacancies
became members of the Service under the then r. 3 and they were
eligible for their seniority being reckoned from the date of their becom-
D ing members of the service. The impugned Rules of 1969 and 1971
purport to take away or to cruelly cut off the long years of valuable
service rendered by these Assistant Engineers only on the pretext of
appointment against permanent posts. These temporary Assistant
Engineers after introduction of the amended Rules have been relegated
to a very uncertain position as to when they will be selected against
permanent vacancies by the Commission in the 50% quota provided
E
under r. 6 of the amended Rules to become members of service and to
have their seniority reckoned. The fate of those Assistant Engineers
who are selected and appointed In temporary posts on the basis of the
results of the examination is also very uncertain inasmuch as they will
be considered for selection by the Commission against the quota for
F
temporary Assistant Engineers after the Assistant Engineers appointed
before them are all considered for selection in the said quota set up for
the temporary Assistant Engineers in permanent vacancies even though
they have been appointed throu1h the same process of e<amination.
Considering all these circumstances we are constrained to hold that the
impugned rr. 3(c), 5 and 6 of the 1969 Rules and r. 23 of the 1971 Rules
G are arbitrary, irrational and unreasonable infringing Arts. 14 and 16 of
the Constitution. [451G-H; 452A·Fl

Narender Chadha v. Union of India & Ors., [1986) l S.C.J. 307,
referred to.

H State of Jammu & Kashmir v. Triloki Ni;th Khosa, [1974) 1
S.C.R. 771, distinguished.
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.] 433

9. Purely ad hoc employees or employees on purely officiating A
basis or employees purely for a temporary period in the cadre of
Assistant Engineer, being not members of the service in accordance
with the service rules, are not entitled to have the benefit of their such
adventitious, purely ad hoc and temporary service being reckoned for
determination of seniority unless and until they become members of the
service in accordance with the provisions of service rules. Only those ad B
hoc appointees whose services have been regularised by the regularisa-
tion rules framed under proviso to Art. 309 of the Constitution after
being duly selected by the Selection Committee and becoming members
of the Service, will be entitled to seniority only from the date of order of
appointment after selection in accordance with those regulations as
provided in r. 7 of the Regulations. [453H; 454A·Cl c
Ashok Gulati and Ors. v. D.S. Jain & Ors., A.l.R. 1987 S.C. 424
and State of Gujarat v. C. G. Desai, (1974] 2 S.C.R. 255, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 622-
625 of 1982. D
y
From the Judgment and Order dated 14. 1.82 of the Allahabad
High Courtin W.P. Nos. 3387179, 3327, 2829i80and 747181.

Shobha Dixit, S. Markandeya, M.N. Shroff, Anil Kumar Gupta.
A.K. Sanghi, V.J. Francis, P.D. Sharma, A.K. Panela, Sunil Kumar E

-- ·-'- Jain and R.B. Mehrotra for the appearing parties.

The Judgment of the Court was delivered by

B.C. RAY, J. These appeals by special leave are against the
common judgment and order dated 14.1.1982 quashing the seniority F
list in the cadre of Assistant Engineers in the United Provinces (Build-
ings & Roads Branch) Class II prepared on 29.7.1980 and 18.12.1980
with 19.12.1980. A writ of mandamus was ·also issued to the State
Government for preparation of fresh seniority list in respect of
Assistant Engineers in the Civil Engineering Wing and Electrical and
Mechanical Wing respectively in accordance with the guidelines G
mentioned in the said judgment. The facts giving rise to these writ
petitions are in brief as follows:-

Previously Public Health Department as well as the Irrigation
Department of the Government of Uttar Pradesh were integrated into

_
Public Works Department comprising both these two branches. In

.. .__..
H
434 SUPREME COURT REPORTS [1987) 3.S.C.R.

A 1922 Irrigation branch was separated into a different independent
department. Similarly, in 1927 Public Health Department was separa-
ted. In 1936 U.P. Service of Engineers Class II Rules (Buildings and
Roads Branch) pertaining to P.W.D. were framed in exercise of pow-
ers conferred under the Government of India Act. Identical rules
also governed the Irrigation Department. Before entering into the
B controversy that has been raised in the instant appeal it is appropriate
to refer to the relevant provisions of the said rules. Rule 3(b) defines
'Member of the Service' as a Government servant appointed in sub-
stantive capacity, under the provisions of these rules or of rules in force

-
previous to the introduction in the cadres of the service. Clause (c)
defines 'Direct recruitment' or 'Direct appointment' as recruitment or
C appointment in the manner prescribed in rule 5(i), (ii) and (iii) of these
rules. In Rule 4 which is captioned as 'Strength of Cadre' it is
mentioned in clause (ii) of the said rule that the Government may
increase the cadre by creating permanent or temporary posts from
time to time as may be found necessary. Rule 5 lays down five sources
of recruitment:
D
(i) by direct appointment from amongst engineer students who '1
have passed out of Thomson Civil Engineering College,
Roorkee, and who have completed a course of training in
the Buildings and Roads Branch as engineer students after
consulting the Public Service Commission;
E
(ii) by the appointment after (sic) advertisement and after con- ).. . .._
sulting the Public Service Commission;

(iii) by the appointment of officers in the temporary service of
the United Provinces Public Works Department, Buildings
F and Roads Branch, after consulting the Public Service Com-
mission; provided that it will 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 ap-
pointed to a temporary post in the cadre of service after
consultation with the Commission.
G
(iv) by promotion of members of the United Provinces Subordi-
nate Engineering Service in the Public Works Department,
Buildings and Roads Branch, who have shown exceptional
merits;

H (v) by promotion of computers in the Public Works Depart-
P.D. AGGARWAL v. STATE OF U.P. (RAY. J.] 435

ment, Buildings and Roads Branch, who have shown excep- A
tional merit and who are technically qualified.

It has been specifically provided in Rule 6 that the Government
will decide in each case the source from which a vacancy shall be filled
up provided that 25% of the vacancies shall be reserved for selected
qualified members of the Subordinate Engineering Service and Com- B
puters. It thus provides that barring 25% of the vacancies to be filled
by promotion from Engineering Subordinate Services and Computers,
the remaining 75% of the vacancies are to be filled up by direct recruit-
ment as provided in sub-clause (ii) and (iii) of Rule 5.

- Rule 17 which is termed as 'Probation' specifically provides that C
all persons appointed to the service, who are not already in the perma-
nent employ of the Buildings and Roads 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 engineers in the Buildings ·and
Roads Branch of the United Provinces Government, may be permitted D
y to count the period of such training and service, respectively towards
this period of probation.

Rule 19 deals with confirmation of probationers. It mentions that
a probationer shall be confirmed in his appointment after he has comp-
leted the prescribed period of probation, has passed all the tests E
prescribed in the rules and the Government is satisfied that he is fit for
confirmation. It also provides therein that all confirmations under this
rule shall be notified in the United Provinces Gazette.

Rule 23 states that seniority in the service shall be determined
according to the date of order of appointment to it provided that if the F
order of appointment of two or more candidates bears the same date,
their seniority inter-se shall be determined according to the order in
which their appointment has been notified.

On December 7, 1961 an office memorandum No. 4162 EBR
t- XXIII-PWD-90 EBR 1954 was issued by the Government laying down G
· the principles for recruitment to the permanent and temporary posts.
It is stated therein that in future direct recruitment to both permanent
and temporary vacancies of Assistant Engineers (Civil, Electrical and
Mechanical) in the Public Works, Irrigation and Local Self Govern-
ment Engineering Departments, will be made on the results of com-
petitive examination to be conducted by the Public Service Commis- H
.,.·•
436 SUPREME COURT REPORTS [1987] 3.S.C.R.

A sion. Candidates possessing technical and other qualifications pres-
cribed in the rules for the Uttar Pradesh Service of Engineers in the
Departments concerned will be eligible to appear at the examination
for that particular service. It has been further provided therein that
successful candidates in order of merit will be appointed on probation
against vacant permanent posts and those following will be appointed
B against temporary posts. It also lays down the manner of filling up the
vacancies in the permanent cadre of the service of Assistant Engineers
in the Irrigation Department as well as in the PWD Department. In
PWD Department 50% of the vacancies in the permanent cadre will be
filled up through competitive examination, 25% by promotion from
amongst overseers and computers and 25% by selection from amongst
C temporary Assistant Engineers recruited through the Commission. It -
has been further provided that as a measure of concession to the exist-
ing temporary Assistant Engineers who were recruited as temporary
Assistant Engineers on the advice of the Public Service Commission
prior to the introduction of this scheme, the distribution of vacancies
in the permanent cadre of Assistant Engineers will be 25% by direct
D recruitment through competitive examination; 25% by promotion
from subordinate service and 50% by selection from amongst existing
temporary Assistant Engineers. It has also been provided that the
Government may in consultation with the Public Service Commission
increase or decrease the percentage fixed for recruitment by selection
and competitive examination in any particular year. In para 7 of the
E said memorandum it has been provided that temporary and officiating
Assistant Engineers possessing the requisite technical qualifications
will be eligible to appear in the competitive examinations and the
maximum age limit in the case of those working in the department with
the approval of the Commission, or after having been recruited by the
Commission will be 40 years.
F
Thereafter on 28. 7.1969 an amendment to the Rule was made by
the Government in exercise of power under proviso to Article 309 of
the Constitution. This is known as the United Provinces Service of
Engineers (Buildings and Roads Branch), Class II (Amendment)
Rules, 1969. These rules shall be deemed to have been in force since
G March, 1962. The relevant provisions of these Rules are quoted -1_
hereinbelow:-

Rule 3: In these rules unless there is anything repugnant in the subject
or context:-

H (a) The 'Service' means the U.P. Service of Engineers (Build-
j···
P.O. AGGARWAL v. STATE OF U.P. (RAY, J.) 437

ings and Roads Branch), Class II, A

(b) 'Member of the Service' means a government servant ap-
pointed in a substantive capacity, under the provisions of
these rules or of rules in force previous to the introduction of
these rules to a post in the cadre of the service.
B
f. (c) 'Direct recruitment' or 'Direct appointment' means recruit-
ment or appointment in the manner prescribed in rule (S)(a)
.,__ (i) and S(b)(l);

(d) 'Commission' means the Uttar Pradesh Public Service
Commission; C

(e) 'Department' means the Public Works Department, Uttar
Pradesh;

(f) 'Governor' means the Governor of Uttar Pradesh.
D
(g) 'Secretary' means the Secretary to Government Public
Works Department, Uttar Pradesh;

(h) 'Chief Engineer' means the Chief Engineer, Public Works
' Pradesh.
Department, Uttar
E
(i) 'Period of recruitment' means the period upto the end of
December in the calendar year succeeding year in which the
recruitment or selection is made;

(j) 'Citizen of India' means a person who is or is seemed to be
citizen of India under Part II of the Constitution of India; F

(k) 'Government means the Government of Uttar Pradesh.

Rule 5: Source ofrecruitment:-
Recruitment to the post of Assistant Engineer shall be made
,.. from the following sources- G
'
(a) in permanent vacancies-

(i) by direct recruitment on the result of a competitive exami-
nation conducted by the Commission;
H
438 SUPREME COURT REPORTS [1987] 3.S.C.R.

(ii) by selection from amongst the Officers appointed as
A
Assistant Engineer by direct recruitment through the Com-
mission and working in temporary or officiating vacancies in
the department;

(iii) by promotion of members of the Pub1ic Works Department,
B Subordinate Engineering Service and the Public Works ,-4.
Department ·computers' Service.

(b) in officiating or temporary vacancies-

{i) by direct recruitment on the result of a competitive examina-
tion conducted by the Commission;
c
(ii) by promotion of members of the Public Works Department, "-1
Subordinate Engineering Service, and Public Works Depart-
ment Computers Service.

D Rule 6: Number to be recruited from each source-The Governor
shall decide the number of appointments to be made at each 'f
selection in each kind of post from the sources specified in
rule 5:

Provided that recruitment in substantive vacancies occurring
E during a period of recruitment in the post of Assistant
Engineer, shall, so far as may be possible, be made from the -"-- -
source mentioned in rule S{a) in the following proportion:-

(a) Fifty per cent of the vacancies shall be filled by direct recruit- )-
ment on the results for a competitive examination under rule
F S(a)(i);

{b) Twenty five per cent of the vacancies shall be filled from the
source specified in rule 5(a)(ii).

(c) Twenty-five per cent of the vacancies shall be filled from the
G source specified in rule 5(a)(iii) which shall be shared by~
members of the Public Works Department Subordinate
Engineering Service and the Public Works Department
Computers' Service in approximate proportion of permanent
strength of their respective cadres at the time of selection:

H Provided further that with a view to giving facility to tempor-
P.O. AGGARWAL v. STATE OF U.P. (RAY. J.} 439

ary Assistant Engineers recruited in the Department in con- A
sultation with the Commission up to the date Commence-
ment of the first competitive examination in accordance with
these rules, the proportion of vacancies to be filled from the
three sources mentioned in the first proviso shall be 25 per
cent, 50 per cent and 25 per cent respectively subject to
review at the discretion of the Government in consultation B
with the Commission.

Explanation-The vacancies from the source mentioned in
rule 5(a)(ii) will, until further orders, be filled from amongst

- those temporary Assistant Engineers only who were recrui-
ted in the Department in consultation with the Commission
and were working in this capacity on the date of commence-
c
ment of first competitive examination:

Provided also that recruitment to temporary or officiating
vacancies in the posts of Assistant Engineers by promotion
from the source mentioned in rule 5(b )(ii) shall be made up D
to 25 per cent of the vacancies, occuITing during any one
period of recruitment in the same proportion as in clause (c)
of the first proviso and the remaining vacancies shall be filled
by direct recruitment under rule 5(b )(i).

NOTE-The distribution of vacancies in the permanent E
cadre in the above manner will be subject to the condition
- .Jo. that the Governor, in consultation with the Commission
may, for special reasons, increase or decrease the percentage
fixed for recruitment by selection and competitive examina-
tion in any particular period of recruitment.
F
On November 26, 1971 a further amendment to the U.P. Service
of Engineers (Buildings and Roads Branch), Class II Rules has been
brought in and these rules are called U.P. Service of Engineers (Build-
ings and Roads Branch) Class II (Amendment) Rules, 1971. Rule 23
which deals with seniority has been substituted. The relevant portion
~ of Rule 23 is quoted hereunder:- G

"Except as provided for hereunder seniority in the service
will be determined by the date of order of appointment in a
substantive vacancy ................................. "

On the basis of these amended rules of 1969 and 1971 examina- H
440 SUPREME COURT REPORTS [1987) 3.S.C.R.

A tions were held and the successful candidates in the said examinations
were appointed to the permanent posts and they were placed on pro-
bation. These appointees were called direct recruits in short 'D' cate-
gory. The petitioner Nos. 1, 2 and 4 who are appellants here in these
appeals are those direct recruits. The appellant Nos. 1 and 2 who were
working in the PWD as temporary Assistant Engineers after selection
B by the Commission were successful in 1962 competition for appoint-
ment against permanent posts. The Appellant No. 3 who was also
working as temporary Assistant Engineer in the PWD after selection
by the Public Service Commission in 1962 also competed in the exami-
nation held in 1964 for appointment against a permanent post. The
appellant No. 4 who was working in the Irrigation Department after
C selection by the Commission in 1962 was successful for appointment
against one of the permanent posts in PWD through 1964 competitive
-
examination. It may be mentioned in this connection that the first
competitive examination was held in 1962 on the basis of the memo-
randum dated December 7, 1961. The next--examina!ion was held in
1964. Similar examinations were held thereafter till 1971 in accordance
D with the amended Rules. The Shukla Committee in para 36 of its
report observed that "the System had done more harm than good to
the Service" and ultimately recommenoed that in future such direct
recruitment for permanent posts should be discontinued. No examina-
tions were held in 1963. After 1971 the recruitment by this method was
discontinued by executive instructions issued in 1972 vide Office
E Memorandum dated 23.6.1972 (Annexure C2 to the counter affidavit
of S.C. Gupta dated 23.1.81 in Writ Petition No. 3327 of 1980 Syed
Masood Tagi Zaidi v. State of U.P.) This was followed by another order _,.L_--
dated 8.6.1973 (Annexure C-3 ibid) stopping direct promotion against
permanent vacancies. These decisions were taken on the basis of the
recommendations of Shukla Committee's Report.
F
The respondents are the directly recruited Assistant Civil
Engineers in the Buildings and Roads Branch pursuant to the provi-
sions of Rule S(a)(ii) in the temporary posts of the cadre upto 1961
after consultation with the Public Service Commission. These tem-
porary Assistant Engineers who are working continuously since the
G date of their appointment in the cadre of Assistant Engineers have.
questioned the seniority list of Assistant Engineers made by the -t
Government in 1980 pursuant to the Office Memorandum dated
December 7, 1961 and U.P. Engineering Service (Amendment) Rules
of 1969 and 1971 on the grounds that they are arbitrary and discrimi-
natory being violative of Articles 14 and 16 of the Constitution. These
H amended rules have been challenged further on the ground that these
P.D. AGGARWAL v.· STATE OF U.P. [RAY. J.l 441

rules adversely affect their service conditions and as such prayed for A
quashing of the seniority list and for determination o.t their seniority
on the basis of the decision rendered by this Court in Baleshwar Dass
& Ors. v. State of U.P. & Ors., (1981] 1 SCR 449 on the basis of the
length of their continuous service since the date of their becoming
member of the service in accordance with the provisions of the 1936
B
~ rules. The High Court of Allahabad allowed these Writ Petitions and
quashed the 1980 seniority list directing to prepare a seniority list after
..,._, taking the appointments of officers to the service after selection by
Public Service Commission to be substantive appointments to the

- cadre.

Against this judgment and order the above appeals on special C
leave have been preferred to this Court. The only question that falls
for consideration is the determination of seniority of Assistant
Engineers in the cadre of the service within the meaning of Rule 3(b)
of U .P. Service of Engineers (Buildings and Roads Branch) Class II
(Amendment) Rules. It appears that a similar question about the yard- D
stick for determination of seniority between the Assistant Engineers
appointed substantively to temporary posts of the cadre and those
Assistant Engineers appointed against the permanent posts on proba-
tion and confirmed in the said post, came up for consideration before
this Court in Civil Appeal No. 1717 of 1981. In that appeal we have
already considered this aspect of the case and relying on the decision in E
Ba/esh-.yar Dass & Ors. v. State of U.P & Ors. and N.K. Chauhan &
Ors. v. State of Gujarat & Ors. etc., (1977] 1 SCR 1037 we have held
that since the cadre of the service of engineers consists of both tempor-
ary and permanent posts and as such there can be substantive appoint-
ments against temporary posts of the cadre in accordance with the
provisions of the Service Rules. When a temporary Assistant Engineer F
is selected and appointed by the Government with the approval of the
Public Service Commission after fulfilment of all the tests presented in
the said rules, he shall be deemed to be member of the service and as
such the entire length of service from the date of his becoming member
of !ht service has to be reckoned in computing the seniority of the
Assist<mt Engineers appointed substantively to temporary posts in the G
;.--service in accordance with the provisions of Rule 23 as it was prior to
its amendment by 1971 Rules. We have also held that on the plea of
not being confirmed, the long years of service rendered by an
Assistant Engineer though appointed to a temporary post substan-
tively cannot be arbitrarily cut off and excluded in determining
seniority. H
442 SUPREME COURT REPORTS (1987] 3.S.C.R.

A Before proceeding to consider the merits of the controversy
raised in this allPeal it is pertinent to deal with the preliminary objec-
tions raised on behalf of the appellants that the validity of rules of 1969
and 1971 was not challenged by T category officers or by the ad hoc
officers at any time prior to the filing of the present writ petitions out of
which the instant appeals on special leave have arisen and as such the
B writ petitions should be dismissed on the ground of undue delay and
!aches. This objection was elaborately dealt with by the High Court in
its judgment and it was held that there was no such undue delay and
]aches which can be considered to be a bar for considering the writ
petitions. It appears that the seniority list of 1971 that was prepared
following 1969 and 1971 rules was challenged by some 'D' category
C officers in Civil Writ Petition No. 3734 of 1969 (V. C. Aggarwal v. State
-
of U.P. & Ors.). That petition was allowed and the seniority list of
1971 was quashed. The Government was directed to prepare a fresh
seniority list in accordance with law after adjusting the recruitment for
the period 1962 to 1966 in accordance with the quota rule. Against that
judgment two special appeals were filed being Nos. 634 and 629 of
D 1972. These appeals were allowed in part. Against that judgment the
Government alone came to this Court in SLP(C) No. 951of1975. This
special leave petition was dismissed on 8.9.1975. Thereafter the
impugned list was published in 1980 and it was supplemented on the
18th and 19th December, 1980. In these circumstances we are unable
to hold that there has been undue delay and !aches on the part of
E temporary Assistant Engineers to challenge the aforesaid amended
rules and as such there is no merit in this contention. L--
In the instant appeal there is no controversy that all the tem-
porary Assistant Engineers who were appointed in consultation with
the Public Service Commission by the Government and had been
F rendering their services for long years since 1956 till 1961 when the said
notification has been made by the Government have become members
of the service in accordance with the provisions of the rules. Therefore
on the basis of the provisions of rule 23 as it was before the amendment
made in 1971 these temporary Assistant Engineers are legally entitled
to have their seniority reckoned from the date of their being member
G of the service no matter whether they are holding posts which ·remain -f
as temporary for years together. It is quite clear that there are about
200 Assistant Engineers who have been appointed substantively by the
Government with the approval of the Public Service Commission and
as such the direct recruits appointed on the basis of the examination
held under the 1969 rules cannot in any manner whatsoever encroach
H upon the rights of these substantively appointed Assistant Engineers
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.l 443

to temporary posts in the matter of determination of their seniority in
A
the said cadre of Assistant Engineers.

The Office Memorandum dated December 7, 1961 introduces
quotas for filling up vacancies in the cadre of Assistant Engineers in
the Public Works Department as well as Irrigation and Local Self
}.. Government Engineering Departments by providing direct recruit- B
ment through competitive examination to both permanent and
temporary vacancies of Assistant Engineers (Civil, Electrical and
,_,., Mechanical). It has been provided therein that the quota of 50% of the
vacancies in the cadre of Assistant Engineers in a year will be filled hy
direct recruits through competitive examination as well as it provides
25% of the permanent posts to be filled up by selection from amongst C
temporary Assistant Engineers recruited through the Commission. As
).-- a concession however, it has provided that the quota of direct recruits
through competitive examination will be 25% instead of 50% as there
are large number of temporary Assistant Engineers from whom the
selection can be made to the vacancies in the permanent posts of
Assistant Engineers by selection. This memorandum has subsequently D
y been incorporated in the amended rules of U. P. Service of Engineers
1969. In Rule 5 of the said Rules provision has been made for direct
recruitment both ·in permanent vacancies as well as in officiating or
temporary vacancies on the basis of competitive examination con-
ducted by the Public Service Commission and the criteria laid down is
that those who are more meritorious judged by the result of the exami- E
_ __. nation and occupy higher place will be recruited to the permanent
vacancies whereas others less meritorious judged by their performance
in the competitive examination will be recruited to the post of officiat-
ing or temporary vacancies of Assistant Engineers. It has also been
provided therein that the temporary Assistant Engineers already
recruited in the department in consultation with the Commission will F
be permitted to compete in the examination and if they can do well in
the competitive examination then they may be appointed in the perma-
nent posts of Assistant Engineers. This rule if considered properly will
clearly show that direct recruits against permanent vacancies on the
basis of the competitive examination will score a march over the
t- Assistant Engineers who have been appointed substantively in tern- G
porary posts of the cadre and have become members of the service.
They will be deprived of having their services reckoned from the date
of their substantive appointment to temporary posts for the purpose of
determination of seniority. In accordance with the provisions of Rule
23 of the amended rules of 1971 which has been substituted for the old
rules of 1936 seniority in the service has to be determined by the date H
444 SUPREME COURT REPORTS [1987] 3.S.C.R.

A of order of apfi!ointment in a substantive vacancy. As a result this rule
expressly debars Assistant Engineers who have been appointed long
before the appointment of the direct recruits under the amended rules
of 1969 to have their long years of service as Assistant Engineers after
being appointed substantively and after being members of the service
fulfilling all the tests prescribed within the meaning of rule 3 of the
B rules of 1936 and also under rule 3{b) as amended by the 1969 amend-
ment to be left out in fixation of seniority. In other words these tem-
porary Assistant Engineers will ever remain temporary though they
have been rendering identical service for long years and having same
educational qualification and long experience in the service.

c This memorandum dated 7.12.1961 was considered in Baleshwar
Dass's case by this Court and it was held that this G.O. was not
-
arbitrary insofar as it fixes the proportion of permanent vacancies to
be filled from various sources, and it has statutory force being under
Rule 6. It has also been observed that:

D "The office memorandum makes it clear that direct recruit-
ments will be made to both permanent and temporary
vacancies of Assistant Engineers. But thjs scheme of 1961
cannot stand in isolation and has to be read as subordinate
to the 1936 Rules. After all, the 1961 Memorandum cannot
override the Rules which are valid under Article 313, and
E so must be treated as filling the gaps, not flouting the
provisions."

Hence the said O.M. does not affect the petitioners who have become
members of the Service and are entitled to have their seniority re-
ckoned from the date of their being members of the Service according
F to Rule 23 of the 1936 Rules. The 1969 Rules and 1971 Rules have
however, affected the rights of the respondents who have become
members of the Service being substantively appointed in temporary
posts as Assistant Engineers inasmuch as there has been an amend-
ment effected in Rule 3{b) by providing that a member of the Service
meant a Goverment servant appointed in a substantive capacity to a
G post in the cadre of the Service. Rule 3(c) also amends the earlier ~
provisions by meaning direct recruitment as in the manner prescribed
in Rule 5(a)(i) and 5(b)(i). Similar amendments have been made in
Rule 5 and 6. The effect of these amendments is that Assistant Engi-
neers who have become members of the Service being appointed sub-
stantively in temporary posts will no longer be members of the service
H and wil1 have to wait till they are selected and appointed as Assistant
P.D. AGGARWAL v. STATE OF U.P. [RAY, J.] 445

Engineers under Rule 5(a)(ii) against quota fixed by Rule 6 for this A
purpose. This creates serious prejudice to them and it also creates
uncertainty as to when they will be selected and appointed against the
quota set up for such selection under Rule 5(a)(ii). The amended Rule
23 lays down that seniority will be determined from the date of order
of appointment in substantive vacancy. These amended provisions
have been made retrospectively effective from March 1, 1962 to the B
existing officers i.e. the respondents appointed substantively against
temporary vacancies. It has been urged that Government has the
power to amend rules retrospectively and such rules are quite valid.
Several decisions have been cited of this Court at the Bar. Undoub-

- tedly the Government has got the power under pro,1so to Article 309
of Constitution to make rules and amend the rules giving retrospective C
effect. Nevertheless, such retrospective amendments cannot take away
the vested rights and the amendments must be reasonable, not arbitrary
or discriminatory violating Articles 14 and 16 of the Constitution.

"It is well-settled that the power to frame rules to regulate the
conditions of service under the proviso to Art. 309 of the Constitution D
carries with it the power to amend or alter the rules with a retrospec-
tive effect: B.S. Vadhera v. Union of India, [ 1968] 3 SCR 575; Raj
Kumar v. Union of India, [1975] 3 SCR 963; K. Nagraj & Ors. v. State
of A.P. & Anr., [ 1985] I SCC 523 and State of J & K v. Triloki Nath
Khosla & Ors., [1974] 1 SCR 771. It is equally well-settled that any
rule which affects the right of a person to be considered for promotion E
is a condition of service although mere chances of promotion may not
be. It may further be stated that an authority competent to lay down
qualifications for promotion, is also competent to change the qualifica-
tions. The rules defining qualifications and suitability for promotion
are conditions of service and they can be changed retrospectively. This
rule is however subject to a well-recognised principle that the benefits F
required under the existing rules cannot be taken away by a,n amend-
ment with retrospective effect, that is to say, there is no power to make
such a rule under the proviso to Art. 309 which affects or impairs
vested rights. Therefore, unless it is specifically provided in the rules,
the employees who are already promoted before the amendment of
}- the rules, cannot be reverted and their promotions cannot be recalled. G
In other words, such rules laying down qualifications for promotion
made with retrospective effect must necessarily satisfy the tests of
Arts. 14 and 16( 1) of the Constitution."

The above observations have been made by this Court in the case
of T.R. Kapur v. State of Haryana & Ors., JT 1986 (SC) 1092 at 1101 H
446 SUPREME COURT REPORTS [1987] 3.S.C.R.

A (in which one of us was a party). It has been held by this Court in E.P. ~
Ravappa v. State of Tamil Nadu, AIR 1974 (SC) 555 at 583 and
Maneka Gandhi v. Union of India, AIR 1978 (SC) 597 at 624 that
there should not be arbitrariness in State action and the State action
must ensure fairness and equality of treatment. It is open to judicial
review whether any rule or provision of any Act has violated the
B principles of equality and non-arbitrariness and thereby invaded the
rights of citizens guaranteed under Arts. 14 and 16 of the Constitution.
As has been stated hereinbefore the Assistant Engmeers who have
already become members of the Service on being appointed substantively
against temporary posts have already acquired the benefit of 1936

c
rules for having their seniority computed from the date of their becom-
ing members of the Service. 1969 and 1971 Amended Rules take away
this right of these temporary Assistant Engineers by expressly provid-
-
ing that those Assistant Engineers who are selected and appointed in
permanent vacancies against 50% quota provided by Rule 6 of the
amended 1969 Rules will only be considered for the purpose of compu-
tation of seniority from the date of their appointment against perma-
D nent vacancies. Therefore the temporary Assistant Engineers are not
only deprived of the right that accrued to them in the matter of
determination of their seniority but they are driven to a very peculiar
position inasmuch as they are to wait until they are selected and
appointed against permanent vacancies in the quota set up for this
purpose by the amended Rule 6. The direct recruits on the basis of the
E competitive examination conducted by the Commission and appointed
against permanent vacancies on probation will supersede the rights
that accrued under the unamended rules to the temporary Assistant
Engineers having precedences in the matter of determination of their
seniority from the date of their appointment against permanent vacan-
cies. In other words, the Assistant Engineers appointed substantively
F against temporary posts several years before the direct recruits and
working in the posts of Assistant Engineers will be pushed down to the
direct recruits against permanent vacancies. It is also evident that
there are about 200 Assistant Engineers who have been appointed
substantively by the Government with the approval of the Public
Service Commission before the enforcement of 1969 rules. The direct
G recruits appointed on the basis of the examination against permanent -f
vacancies will get precedence over Assistant Engineers appointed in
the matter of determination of their seniority in the cadre of Assistant
Engineers on the basis of changed rules, particularly new Rule 23 ,
which takes into account only appointments in substantive vacancies.
Thus appointments made under Rule 5(b )(i) are to be treated as
H temporary i.e. 'T' category officers and their such services will not be
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.J 447

taken into consideration in determining seniority until they are A
selected and appointed to permanent posts under Rule 5(a)(ii). Note
I to Rule 23 made it clear that an appointment made substantively on
probation against a clear vacancy in a permanent post will be treated
as substantive appointment. Thus the 1969 and 1971 amendments in
effect take away from the officers appointed to the temporary posts in
the cadre through Public Service Commission, i.e. after selection by B
Public Service Commission, the substantive character of their appoint-
ment. These amendments are not only disadvantageous to the future
recruits against temporary vacancies but they were made applicable
retrospectively from 1.3.1962 even to existing officers recruited
against temporary vacancies through Public Service Commission. As
has been stated hereinbefore that the Government has power to make C
retrospective amendments to the Rules but if the Rules purport to take
away the vested rights and are arbitrary and not reasonable then such
retrospective amendments are subject to judicial scrutiny if they have
infringed Arts. 14 and 16 of the Constitution.

In the case of S.B. Patwardhan.v. State of Maharashtra, [1977] 3 D
SCR 775 at 778 Rule 8(iii) of 1960 Rules of Bombay Service of
Engineers Grade II which provided that direct recruits on probation in
any year will be in a bunch senior to promotees confirmed in that year
was declared ultra vires of Art. 14 of the Constitution as it purported to
take away from the promotees their right of seniority being deter-
mined from date of their promotion from subordinate service to the E
posts of Deputy Engineers before confirmation. It was held that:

"Though drawn from two different sources, the direct
recruits and promotees constitute in the instant case a
single integrated cadre. They discharge identical functions.
bear similar responsibilities and acquire an equal amount F
of experience in their respective assignments. Yet clause
(iii) of r. 8 provides that probationers recruited during any
year shall in a bunch be treated as senior to promotees
confirmed in that year. This formula gives to the direct
recruit even the benefit of his one year period of training
and another year's period of probation for the purposes of G
seniority and denies to promotees the benefit of their long
and valuable experience. If there was some intelligible
ground for this differentiation bearing nexus with efficiency
in public services, it might perhaps have been possible to
sustain such a classification. Instead of adopting an intelli-
gible differentia, r. 8(iii) leaves seniority to be determined H

f
448 SUPREME COURT REPORTS [1987] 3.S.C.R.

on the sole touchstone of confirmation. Confirmation is
A
one of the inglorious uncertainties of government service
depending neither on efficiency of the incumbent nor on
the availability of substantive vacancies."

The Office memorandum dated December 7, 1961 which purports
B to amend the United Provinces Service of Engineers (Buildings & Roads
Branch) Class II Rules, 1936 in our opinion cannot override, amend or
supersede statutory rules. This memorandum is nothing but an
administrative order or instruction and as such it cannot amend or
supersede the statutory rules by adding something therein as has been
observed by this Court in Sant Ram Sharma v. State of Rajasthan &
C Anr., [1968] I SCR 111. Moreover the benefits that have been confer-
red on the temporary Assistant Engineers who have become members
of the service after being selected by the Public Service Commission in
accordance with the service rules are entitled to have their seniority
reckoned in accordance with the provisions of rule 23 as it was then,
from the date of their becoming members of the service, and this cannot
D be taken away by giving retrospective effect to the rules of 1969 and
1971 as it is arbitrary, irrational and not reasonable.

We have already mentioned hereinbefore that the amended rules
of 1969 read with the amended rules of 1971 adversely affect the rights
of the Assistant Engineers appointed to substantive posts prior to the
E introduction of these amended rules and create fetters for the long
years of service being ever considered for reckoning of seniority in the JL. .._
cadre of Assistant Engineer. It is pertinent to refer in this connection
the decision of this Court in the case of Mohammad Shujat Ali & Ors.
etc. v. Union of India & Ors. etc., I 1975] I SCR 449 wherein it has been
observed that "it is true that a rule which confers a right of promotion
F or the right to be considered for promotion is a rule prescribing condi-
tion of service." For promotion from Assistant Engineer to the post of
Executive Engineer seniority-cum-merit is the criterion in accordance
with the service rules in question. These temporary Assistant
Engineers unless they are selected to the 50% quota in permanent
vacancies reserved for promotion from the Assistant Engineers
G appointed to temporary posts, will never have their service reckoned -.f
for determination of seniority in the cadre. It is pertinent to mention in
this connection that 'T' category and 'D' category engineers have got
some technical qualification i.e. both are graduates in Civil Engineer-
ing and both worked as Assistant Engineers in temporary vacancies.
The respondents were appointed Jong before the appointment of
H appellants as Assistant Engineers in permanent vacancies. The appoint-
P.D. AGGARWAL v. STATE OF U.P. {RAY. J.J 449

ment of respondents has been made in consultation with the Public A
Service Commission and according to the decision in Baleshwar Dass's
case the respondents having become members of the Service they are
deemed to be appointed substantively in temporary posts. Therefore
the amended rules more particularly rules 3(c), 3 and 6 of 1960 rules as
well as rule 23 of 1971 amended rules are wholly arbitrary and dis-
criminatory and so they are violative of Articles 14 and 16 of the B
Constitution. It has been tried to be urged in this connection on behalf
of the direct recruits that the method of selection to the cadre of
Assistant Engineers by providing quota for direct recruits in perma-
nent vacancies was introduced by the authorities concerned in order to
attract meritorious and talented engineers in the U .P. Service of
Engineers (Buildings & Roads Branch) as there were very little C
prospects of promotion for such Assistant Engineers to be promoted to
the higher posts owing to the large number of Assistant Engineers
appointed to temporary posts. It has thus been urged that these new
rules have been introduced in order to give an incentive to meritorious
and talented engineers t-0 get themselves recruited directly to perma-
nent posts in the cadre on the basis of the competitive examination in D
order to have a fair promotional prospect in the service. This submis-
sion cannot be sustained in view of the fact that firstly it seriously
prejudices the rights of the Assistant Engineers appointed substan-
tively to the temporary posts and working as Assistant Engineers for a
number of years and discriminates them from having their long years
of service after being appointed substantively in temporary posts and E
being members of the service though the 'D' category engineers ap-
pointed much later in permanent posts will steal a march over them by
having their seniority reckoned from the date of their appointment on
probation. Secondly, this process of direct recruitment against perma-
nent vacancies was discontinued after 1971 and these amended rules
were not thereafter taken recourse to in filling up the vacancies in the F
cadre of Assistant Civil Engineers as it worked injustice and had led to
patent discrimination violating Articles 14 and 16 of the Constitution.
This is perhaps the reason and rationale which impelled the Shukla
Committee to recommend the discontinuance of this practice of giving
promotion to direct recruits. Quota and rota are introduced where
recruitments to a cadre of Service are made from two or more G
,._sources. But in the instant case the quota has been introduced for the
first time after their recruitment for determining seniority in service
'T' category having become members of the Service already and also
there are no·different sources of recruitment as both 'D' and 'T' cate-
gory employees are recruited by examination conducted by Commis-
sion. Moreover no quota for filling up permanent vacancies has been H
450 SUPREME COURT REPORTS (1987] 3.S.C.R.

A provided at the initial stage of recruitment but a quota has been made )-
after recruitment at the stage of confirmation.

Jn this connection it is relevant to mention that the quota and
rota which was introduced by the 1971 amendment of Rule 23 cannot
be questioned to be arbitrary in as much as when recruitments to a
B particular service are made from more than one source quota and rota
may be introduced consistent with the equality clause envisaged in ~
Articles 14 and 16 of the constitution. This decision is new well settled
by several decisions of this Court, the last of these decisions is in the -a.
case of Narender Chadha & Ors. v. Union of India & Ors., (1980] I
SCJ 307. In the instant case the question is whether by the substitution
c of rule 23 by the amendment Act of 1971 the long years of service
already rendered by the temporary Assistant Engineers who have be-
come members of the cadre of the service of Assistant Engineers fulfil- ~
ling all the conditions can be arbitrarily and unreasonably excluded
while fixing seniority and 'T' category officers can be deprived of their
long years of services being rackoned for determination of seniority.
D
It has been urged on behalf of the appellants that the classifica- '{
tion made between temporary Assistant Engineers though working for
a considerable period of time but not appointed against permanent
vacancies and direct recruits appointed on the basis of the examination
against permanent vacancies on probation is based on merits. In sup-
E port of this submission the decision in State of Jammu & Kashmir v. "
Triloki Nath Khosa & Ors., (1974] l SCC 771 has been cited at the bar.
This decision in our considered opinion is not applicable to the instant *-· ~
case inasmuch as in that case recruitment to the cadre of Assistant
Engineers in Jam mu & Kashmir Engineering Service was made by
direct recruitment of degree holders in civil engineering as well as by ~
F transfer of degree or diploma holders having served as Supervisor for a
period of not less than five years. The recruitment rules also further
provided for promotion to the cadre of Executive Engineer on the basis
of merit, ability and previous service record of the candidates. In 1970
the fammu & Kashmir Engineering (Gazetted) Service Recruitment
Rules 1970 were made providing that recruitment to the post of Execu-
G tive Engineers was to be made only by promotion of Assistant
Engineers possessing degree in civil engineering. It was held by this-!" - -
Court that the classification made had reasonable nexus for classifica-
tion namely to achieve administrative efficiency in the engineering
service by introducing higher qualification for promotion to the post
of Executive Engineer. In the instant case, all the Assistant Engineers
H whether appointed in a temporary post of the cadre or in the p~rma-
P.D. AGGARWAL v. STATE OF ll.P. [RAY. J.[ 451

nent post of the cadre are recruited directly from Graduates in Civil
A
Engineering. The only difference is that due to exigencies of service a
large number of Assistant Engineers were recruited by the Govern-
ment in consultation with the Public Service Commission in accord-
ance wih Rule 5(a)(ii,) of 1936 Rules as it was prior to its amendment,
against temporary vacancies and those Engineers have been working
as Assistant Engineers since their appointment from 1956 onwards till B
the end o: 1961 when the impugned 1961 Memorandum was promul-
gated by the Government and thereafter the amended Rules of 1969
and 1971 were made. It was for the first time that the amendment in
the rules was made retrospective by introducing the process of select-

- ing Assistant Engineers to be appointed directly against permanent
posts on probation through examination to be conducted by the Public
Service Commission in 1962. Necessary amendments were also made
c
)- in the Rules 3(c), 5 and 6 of the 1969 Rules as well as Rule 23 of the
1971 Rules in order to provide better prospects of promotion to these
direct recruits by laying down that their seniority will be reckoned
from the date of their appointment on probation whereas in the case of
Assistant Engineers who were working for years together but D
y appointed against temporary posts, their seniority from the date of
their appointment after consultation with the Public: Service Commis-
sion cannot be counted for the purposes of determination of seniority
unless they are appointed against permanent posts and confirmed.
Therefore it cannot be said that higher education qualification has
been prescribed as in the case of State of Jammu & Kashmir v. Triloki E
Nath Khosa & Ors. for the purpose of appointing Assistant Engineers
directly against permanent post on promotion. In the instant case
undoubtedly, both ·r and 'D' category Assistant Engineers are
Graduates in Engineering and both are performing the same nature of
work. It is also significant to note in this connection that the appellants
were previously appointed as Assistant Engineers against temporary F
vacancies of the cadre but subsequently oo the basis of this examina-
tion they have been appointed directly on probation against perma-
nent vacancies. There is nothing to show that these Assistant
Engineers had shown any extraordinary or brilliant performance as
Assistant Engineers. It is also to be noted that the temporary Assistant
Engineers have acquired much experience in their work having been G
appointed much before the direct recruits against permanent vacan-
cies. As stated hereinbefore that under the 1936 Rules the Assistant
Engineers appointed against temporary vacancies became members of
the Service under the then Rule 3 and they were eligible for their
seniority being reckoned from the date of their becoming member of
the Service. In these circumstances it is evident that the impugned H
452 SUPREME COURT REPORTS [1987] 3.S.C.R.

Rules of 1969 and 1971 purport to take away or to cruelly cut off the
A
long years of valuable service rendered by these respondents i.e.
Assistant Engineers appointed in te.mporary vacancies of the cadre
only to the pretext of appointment against permanent post and confir-
mation. The effect of the 1969 and 1971 amendments was thus to take
away from the officers appointed to the temporary cadre through
B Public Service Commission i.e. after the selection by the Commission
the long years of service after becoming members of the Service. It is
also pertinent to mention here that though these temporary posts of
the cadre have been continuing for over years together yet these
temporary posts have not been made permanent before 1961 and
thereby depriving the Assistant Engineers from being appointed
against permanent vacancies even though they have become members
c of the service being appointed in a substantive capacity. These tem-
porary, Assistant Engineers after introduction of the amended rules
have been relegated to a very uncertain position as to when they will
be selected against permanent vacancies by the Commission in the
50% quota provided under Rule 6 of the amended Rules to become
D members of Service and to have their seniority reckoned. Moreover
the fate of those Assistant Engineers who are selected and appointed
in temporary posts on the basis of the results of the examination is also
very uncertain inasmuch as they will be considered for selection by the
Commission against the quota for temporary Assistant Engineers after
the Assistant Engineers appointed before them are all considered for
E selection in the said quota set up for the temporary Assistant
Engineers in permanent vacancies even though they have been
appointed through the same process of examination considering all
these circumstances we are constraint to hold that the impugned provi-
-"'-- --
sions of Rule 3(c), 5 and 6 of the 1969 Rules and Rule 23 of the 1971
Rules are arbitrary, irrational an unreasonable infringing Articles 14
F and 16 of the Constitution insofar as they affect the question of
determining the inter se seniority of temporary Assistant Engineers
appointed by the Government i.e. T-category officers under rule 5(2)
of the Rules as against that of D-category officers i.e. officers directly
recruited by the Government against permanent vacancies and placed
on probation.
G
An argument has been advanced on behalf of the direct recruits ~
i.e. the appellants that they having duly succeeded in the competitive
examination on the basis of the amended rules cannot be deprived of
their right to be promoted on the basis of the fixation of their seniority
in the cadre of Assistant Engineers as provided in the amended rule 23
H of 1971 rules. This argument in our considered opinion cannot hold
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.] 453
~
good in as much as the cadre of Assistant Engineers comprises of both
A
permanent and temporary posts. Rule 3(b) specifically Jays down that
an Assistant Engineer becomes member of the service as soon as he is
appointed in the substantive capacity even in a temporary post in the
cadre. It is inconceivable how a member of the service can be pre-
vented from having his service reckoned for determination of seniority
,.. in the service from the date he became member of the Service. The B
substituted rule 23 introduced in 1971 is on the face of it unreasonable
)-. and arbitrary in as much as it purports to deprive a member of the
service from having his seniority reckoned on the ipse di.xii of the rules

- that he has not been appointed in a substantive vacancy. Rules 3(c) 5
and 6 of 1969 Rules are arbitrary, irrational and not reasonable infrin-
ging Article 14 of the Constitution. While considering this we of
course agree with the finding arrived at by the High Court that so far as
c
~ the selections made on the basis of the competitive examination on the
basis of the amended rules of 1969 and 1971 read with G.O. dated
7 .12 .1961 more than two decades before, should not be disturbed in as
much as these selections were. not challenged during all these years and
these direct recruits have worked there since their appointment. We D
y also make it clear that our decision will not affect any confirmations or
substantive promotions made prior to the filing of the writ petitions.

It appears that an interim order was made by this Court on
5 .5. 1982 to the effect that "if any appointments pursuant to the fresh
rules which are framed, are made these will be subject to the results of E
- _. these appeals." It also appears that in Civil Appeal Nos. 2616-19 of
1981 this Court while disposing of those appeals by order dated
15.4.1981 directed that in regard to promotions already made in
~ accordance with the impugned seniority list there shall be status quo as
on the date on which the writ petitions were filed in the court. It was
also directed that such promotions and any future promotions made in F
accordance with the impugned seniority list will abide by the result of
these appeals. We make it clear that since we are dismissing these
appals all those ad hoc promotions given during the pendency of these
writ petitions as well as civil appeals will not confer any right on the
promotees.
~ G
We further hold that so far as the temporary Assistant Engineers
who have been appointed substantively to temporary posts and have
been working for years together after being only recruited and selected
by the Public Service Commission as required under the service rules
have become members of the service but so far as purely ad hoc emp·
loyees or employees on purely officiating basis or employees purely for H
454 SUPREME COURT REPORTS [1987) 3.S.C.R.

A a temporary period in the cadre of Assistant Engineer in Public Works
Department being not members of the service in accordance with the
service rules, are not entitled to have the benefit of their such
adventitious, purely ad hoc and temporary service being not appointed
sulistantively even to a temporary post will not be reckoned for
determination of seniority unless and until they become members of
B the service in accordance with the provisions of service rule:>. Only
those ad hoc appointees whose services have been refulariscd by the
regularisation rules framed under proviso to Article 309 of the
Constitution after being duly selected by the Selection Committee and
becoming member of the service, will be entitled to seniority only from
the date of order of appointment after selection in accordance with
C those regulations as provided in rule 7 gf the regulations.
-
We mention in this connection the observations of this Court in
the case of Ashok Gulati and Ors. v. R.S. Jain & Ors., AIR 1987 (SC)
424 (to which one of us was a party). It has been observed as follows:-

D "According to the accepted canons of service jurispru-
dence, seniority of a person appointed must be reckoned
from the date he becomes a member of the service ....
. . . . It is well settled that an ad hoc or fortuitous appoint-
ment on a temporary or stop-gap basis cannot be taken into
account for the purpose of seniority even if the appointee
E was qualified to hold the post on a regular basis, as such
temporary tenure hardly counts for seniority in any system
of service jurisprudence."

Similar observation was also made by this Court in the case of
State of Gujarat v. C. G. Desai, [1974) 2 SCR 255. Therefore we make
F it clear that the period of service rendered by the ad hoc appointees
before their service has been duly regularised· in accordance with the
regularisations rules, cannot be taken into account in reckoning their
seniority in service. Their seniority in service will be counted only from
the date when such ad hoc appointees after regularisation in accord-
ance with concerned rules have become members of the service.
G
We direct the authorities concerned to prepare a fresh seniority
list of all the members of the service in the cadre of Assistant Engineer
in the PWD Department on the basis of their length of service from the
date they have become members of the service fulfilling all the re-
quirements laid down in the service rules. We cannot hut observe in
H this connection that though the temporary Assistant Engineers have

-----------·----=~:-' ,_
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.J 455

been duly selected by the Public Service Commission after they are A
appointed as temporary Assistant Engineers yet in spite of several
directions given by this Court, the authorities concerned did not think
it fit and proper to prepare the seniority list in accordance with the
directions given by this Court and as a result no seniority list in the
cadre of Assistant Engineer has yet been prepared following the
B
';- directions made even by this Court as embodied in the decision in
Baleshwar Dass & Ors. v. State of U.P. & Ors. On the other hand
>- amendments have been made to the existing 1936 service rules which
per se seem to be arbitrary and this led to a spate of litigations. We do
hope and expect that considering all these, the Government will take
- effective steps for preparation of seniority list as early as possible in
order to create irrcentive for the members of the service by holding out c
"- prospects of future promotions in the interests of the service.

In the premises aforesaid we dismiss these appeals and affirm the
judgment and order of the High Court of Allahabad quashing the said
seniority list dated 29.7.1980 together with supplementary seniority
\.., lists dated 18.12.1980 and 19.12.1980 relating to Civil Engineering D
1' Wing. Rules 3(c), 5 and 6 of 1969 Rules as well as Rule 23 of 1971
Rules are also quashed. The condition in Office Memorandum dated
21. 1.1980, Annexure 2 of Writ Petition No. 2447 of 1980 providing
that for the selection for the post of Superintending Engineer the
officer must be a confirmed Executive Engineer is quashed. A writ ot
mandamus be issued directing the Government to prepare a fresh E
.-- -~seniority list of Engineers in the Civil Engineering and E.M. Wing
respectively in the light of the observations made hereinbefore. This
order, however, will not affect any confirmations or promotions (other
~ than ad hoc promotions) made before 29.11.1979. In the facts and
circumstances of the case, there will be no order as to costs.
F
H.L.C. Appeals dismissed.