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TMI Blog1980 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... basic breaches of the fundamental law, may well be made over to expert bodies, high-powered and final but presided over by top judicial personnel. Service Jurisprudence is a specialised branch best administered by Special tribunals, not routinely under Article 226. We do not pontificate but share thoughts. 2. We are concerned mainly with the competitive claims to seniority mainly as between three groups of engineers belonging to the U.P. Service of Engineers (Irrigation Branch) - Graduate engineers directly recruited by the Public Service Commission by competitive examination, graduate engineers once appointed in numbers but later absorbed after consultation with the Public Commission and diploma-holders later promoted as Assistant Engineers. Brushing aside the hoary history of the Service when the British were hardly concerned with the development of India's natural resources, we may start the story with the U.P. Public Works Department of which the Irrigation Wing was a part, the other branch being Buildings and Roads. Later on, separate departments for Buildings and Roads and for Irrigation were formed in 1946 as a developmental imperative of the State. Recruitment to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity first in December 1965. This list was attacked as bad in law and the High Court by its judgment of October 1967 in Civil Misc. Writ No. 4416 of 1966 ordered : The petition, therefore, succeeds and is allowed. The respondents are directed not to give effect or act in virtue of the seniority list announced on December 30, 1965. They are further directed to redetermine the seniority inter se of the petitioner and respondents 2 to 49 in accordance with Rule 23. 5. Purporting to act on this direction a fresh seniority list was drawn up by Government in May 1969, and this, in turn was challenged by many as violative of Article 14 and the High Court allowed some of the writ petitions and held : For the reasons set out above, Civil Misc. Writ Petition No. 2719 of 1969 is allowed. The orders of appointment in the substantive capacity of respondents Nos. 2 to 169 and the seniority list, dated 13-5-1969 (Annexure 'K' to the petition) are quashed. The State Government is directed to make fresh appointments and draw seniority list in accordance with law keeping in view the office Memorandum, dated 7-12-1961. 6. The broad perspective we must adopt is plain enough in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice? When, under the Rules, he becomes a member of the Service. For until he gains entry into the Service he cannot claim to be appointed to it. To hover around with prospects of entry is not the same as actual entry. Therefore, we have to examine when an engineer becomes a member of the Service under the Rules. Clause (b) of Rule 3 defines 'Member of the Service' to mean a government servant 'appointed in a substantive capacity under the provisions of these rules...to a post in the cadre of the Service.' What, then, is the cadre of the Service? What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre? Here, Rule 4 becomes relevant. Rule 4 prescribes the sanctioned strength of the cadre. It provides that the government may, subject to the provisions of Rule 40 of the Civil Services (Classification. Control and Appeal) Rules, 1930 'increase the cadre by creating permanent or temporary posts from time to time as may be found necessary.' So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout limit of time A temporary post means a post carrying a definite rate of pay sanctioned for a limited time FR 9(30) Fundamental Rule 22B speaks of holding a post in a substantive, temporary of officiating capacity. But this jargon is not the last word after the Constitution came to be enacted. 11. Be that as it may, the sources of recruitment are 4-fold. The Thomson College appointments were formally stopped by a G.O. of 1950. Another big change took place. Direct recruitment, routed through the Public Service Commission was introduced in 1961. The rules of procedure for direct recruitment and kindred matters are provided by an Office Memorandum of December 1961 which we will consider more closely as they bear upon the crucial controversy. 12. Rule 6 gives power to Government to fix quotas for the various sources and not less than 20% of the vacancies are reserved for selected qualified members of the Subordinate Engineering Service who are category 4 in Rule 5. Persons who are recruited in terms of Rules 5 and 6 are appointed subject to Rule 17 which stipulates a spell of probation in regard to all candidates who are not already in the permanent employment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of meanings, released from officially sanctified meanings. In short, while reading the Rules we must remember the Constitution. 14. Secondly, words themselves are but the skins of thought and once we get that, the root though which the language of the rules seeks to express, it is possible to interpret the words accordingly. Even so, we cannot run away from the Rules as they are, though moth-eaten by time and by tinkering amendments. 15. One of the principal groups in this forensic battle is the direct recruits selected by competitive tests by the Public Service Commission. So we must bestow some attention on their genesis and position in the total scheme. We reject the submission that the Official Memorandum incorporating these Rules, not being expressed to have been issued in the name of the Governor, is of no legal validity. We cannot 'bastardize' these Rules made and published under Government authority, acted upon for two decades and recruitments made by the Public Service Commission and universally accepted as binding 'Rules Regulating Selection for Recruitment of Assistant Engineers (U.P. Service of Engineers Class II) in the Various State Engineering S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Service level of the State Government which has led not merely to incessant litigations among engineers, uncertainty about their future but also discontent and disincentive vis-a-vis their work in the Irrigation Department. 19. We see nothing arbitrary in the 1961 Memorandum although in its application, we have to remember the prior rules and when the two are woven into each other or, rather, when the later 1961 Memorandum is dovetailed to the 1936 Rules the results that may follow will have to be ascertained with care and consistently with the ratio of the decisions of this Court in cognate situations. 20. What is significant to know is that Govt. decided in 1961 to resort to direct recruitment of Assistant Engineers through competitive examinations held by the Public Service Commission. It was, however, alive to the fact that massive appointments had already been made, in the years gone by, to the posts of Asst. Engineers from among graduates in engineering by direct selection and later approval by the Public Service Commission apart from Thomson College graduates in engineering. The Government was also aware of the promotional claims of those in the subordinate serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the permanent cadre of Assistant Engineers will be as follows : (a) 30 per cent by direct recruitment through competitive examination (25 per cent for the Public Works Department), (b) 20 per cent by promotion from subordinate service (25 per cent for the Public Works Department), (c) 50 per cent by selection from amongst existing temporary Assistant Engineers who were recruited as temporary Assistant Engineers through the Public Service Commission. The distribution of vacancies in the permanent cadre in the above manner will be subject to the condition that the Governor in consultation with the Public Service Commission, may, for special reasons, increase or decrease the percentage fixed for recruitment by selection and competitive examination in any particular year. The candidates selected on the results of competitive examination and appointed against permanent vacancies shall be placed on probation for a period of 3 years. However, in the case of such directly recruited candidates who have served as Assistant Engineers in a particular department in temporary capacity, continuous period of temporary service rendered as Assistant Engineer immediately before selecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categories and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts. While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16. 21. While assessing the effect of the totality of the two sets of rules placed before us, we have to make the broad approach set out above and not become prisoners of the 'official' meaning of abstruse expressions used in the rules which themselves have frequently changed with a view to rationalisation . The two committees (the Lal Committee and the Shuk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list consequent upon the High Court's decision of 1967. That, by itself, does not give us any conclusive answer to the present question which has been agitated before us. First of all, we must understand the two grievances brought to our notice by the appellant and the writ petitioners. Their contention is that whether their appointments were to temporary posts or not, the long service they have put in must weigh in reckoning seniority. Their further contention is that if the Public Service Commission has arranged the order of merit in a particular manner and if appointments have been made irregularly without reference to that order or priority, they have no objection to marginal re-adjustments while arranging the seniority of the various appointees by giving effect to the order in which the Public Service Commission has made its recommendations. It is also fairly apparent from the arguments, although not formally conceded by counsel, that officiation, from the date from which temporarily appointed Assistant Engineers have been formally approved by the Public Service Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a regular basis but hesitated to appoint them to permanent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time. The Plan was to take these degree-holders on a regular lasting basis but to make them permanent after study of the situation. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context of the evolving U.P. Service of Engineers 'thin partition do their bounds divide'. The recruitment of even temporary engineers under source (iii) of Rule 5 requires consultation with the Public Service Commission. Likewise Rule 14 requires for all the three types of direct recruits, temporary included, physical fitness tests. 14. No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment to the service under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us categories designated as A, B and C. What we focus on is the set of principles which must regulate the service available for computation of seniority. In Paragraph 22 of the State's counter affidavit the breakup of the vacancies available in the various years to the various categories has been set out. Their accuracy has not been shown to be wrong and we may, perhaps, proceed on the correctness of those figures. It is also made clear by the State that many officers belonging to the class of temporary Assistant Engineers were directly recruited before October 1958 and some of them were promoted as temporary Assistant Engineers from the Subordinate Engineers Service. These officers had been approved for temporary appointment by the Public Service Commission before 1958 . Likewise, for the other years, particulars have been furnished. The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up later on. The State's affidavit asserts : It is also correct that in the appointment order it was mentioned that seniority inter se and on the list of permanent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmanent posts and temporary posts of a quasi-permanent nature, there is not much to distinguish the quality of service as between the two. Patwardhan's case S.B. Patwardhan and Ors. etc. etc. v. State of Maharashtra and Ors., [1977]3SCR775 . and Chauhan's case N.K. Chauhan and Ors. v. State of Gujarat and Ors., [1977]1SCR1037 . have primarily or in passing clarified the equal value of officiating service. 30. In Patwardhan's case, Chandrachud, J. observed in the course of the discussion There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. Later, the learned Judge observed in the same strain : The fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IV cadre. The Court, in that case, also held that confirmation cannot be the sole touchstone of seniority as that will be indefensible : Conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th Edn. p. 1597. We may describe a capacity as substantive if it has independent existence or is of considerable amount or quantity . What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation. 32. Once we understand 'substantive capacity' in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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