# H. S. VERMA & ORS v. SECRETARY, MINISTRY OF SHIPPING & TRANSPORT AND ORS. ETC., ETC

- **Citation:** [1980] 1 S.C.R. 209
- **Court:** Supreme Court of India
- **Decided:** 1979-08-07
- **Bench:** Y. V. Chandrachud, S. Murtaza Fazal Ali, E. S. Venkataramiah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-s-verma-ors-v-secretary-ministry-of-shipping-transport-and-ors-etc-etc-7737
- **Pages:** 19

## Headnote

Con5titution of India 1950, Art. 14-Central Engineering Service
Rules
1959-Two different modes of appointment of engineers-By exa1nination and ,
by interview-High Court holding 'interview' appointees, not part of the service but to ex-cadre posts-Engineers placed in two categories-Central Engineering Service (Roads), Group A for 'examina·tion' appointees. and Central
Engineering Pool, Group A for 'interl'iew' method appointees-Validity of.
s·
The C~ntral Engineering Service (Roads) of the Ministry of Transport and
Communications, Department of Transport (Roads Wing)\ Class-I Recruitment
Rules 1959 provided that recruitment to the service shall ·be made by competi~
tive examination, by promotion and by transfer as provided for in Parts Ill, IV,
D·
- V of the Rules.
The Rules provided that no appointment shall be made to the
service or to any post borne oil the cadre of the service by any method,· not
specified in Rule 3. The Rules empowered the Government to determine the
methods of recruitment for filling any part_icular vacancy in the service.
An amendment introduced on August 2, 1966 to Rule 3 of the 1959 Rules
provided an additional method of recruitment viz. direct recruitment through
E'
the UPSC in accordance with Part VI of the RUies.
This Part provided that
in special circumstances recruitment by selection of candidates to the
posts
mentioned in Appendix IV shall be made by the- Commission by open adver~
tisement, notwithstanding anything contained in the Rules.
Right from the inception selection of officers for Class-I posts ·was made by
an examination conducted -by the UPSC. After the introduction of r. 3(d)
F'·
in the 1959 Rules in August 1966, 951 persons were recrui_ted by the UPSC by
\Vay of intcrvie\VS without~written examination.
·
. Some of the respondents who were officers selected by written examination
impugned the appointment of the 51 officers including the petitioners who were
working as Assistant Executive Engineers or Executive Engineers in the same
wing on the ground that the appointment of these 51 officers was contrary to
C:
the Recruitment Rules in that they were appointed in contravention of the
1959 Rules or in the alternative they contended that they should be treated to
have been appointed to ex-cadre posts and for this reason they were tiot eligible
for promotion to the posts of Executive Engineers, until the respondents werefirst appointed to those posts. Lastly the respondents contended that they were
entitled to be confirmed in preference to the petitioners. A similar writ petition \Vas filed by three Executive Engineers (among the present respondents)
H
alleging that their recruitment by the method of examination was in accordance with the Recruitment Rules but that the petitioners were appointed by
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SUPREME COURT REPORTS
(1980] ! S.C.R.
mere interviews, at method not permissible under the Rules and therefore those
who were appointed by interview method could neither be confirn1cd nor pro·
moted unless they were brought into the cadre and appointed to the
regular
cadre posts.
The l-ligh Court held that the Rules of 1966 had no retrospective operation
and that therefore an appointment made in contravention of' the rules
could
not be regularised by n1aking a rule under the proviso to Art. 309.
It also
held that the petitioners \Ve_re appointed to temporary posts without any right
to become permanent, but since the temporary appointments were outside the
service and ngainst ex-cadre posts, Rule 3 of he 1959 Rules had no application
and for that reason their appointments could not be said to be illegaJ.
While the writ petitions were being argued orders were issued on August
28, 1973 by which persons who were appointed as Assistant Executive Engineers by way of interview were deemed to have been inducted into the Engineering Service as Assistant Executive 'Engineers with retrospective effect from
August 2, 1966 i.e. the date of induction of r. 3 (d)
into the
1959
Rules.
Provi

## Text

_Characters 0–39,712 of 52,746. This is a partial read: ask again with offset=39712 for what follows._

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209
H. S. VERMA & ORS.
v.
SECRETARY, MINISTRY OF SHIPPING & TRANSPORT AND
ORS. ETC., ETC.
August 7, 1979
[Y. V. CHANDRACHUD, C. J., S. MURTAZA FAZAL ALI AND
E. S. VENKATARAMIAH, JJ.]
Con5titution of India 1950, Art. 14-Central Engineering Service
Rules
1959-Two different modes of appointment of engineers-By exa1nination and ,
by interview-High Court holding 'interview' appointees, not part of the service but to ex-cadre posts-Engineers placed in two categories-Central Engineering Service (Roads), Group A for 'examina·tion' appointees. and Central
Engineering Pool, Group A for 'interl'iew' method appointees-Validity of.
s·
The C~ntral Engineering Service (Roads) of the Ministry of Transport and
Communications, Department of Transport (Roads Wing)\ Class-I Recruitment
Rules 1959 provided that recruitment to the service shall ·be made by competi~
tive examination, by promotion and by transfer as provided for in Parts Ill, IV,
D·
- V of the Rules.
The Rules provided that no appointment shall be made to the
service or to any post borne oil the cadre of the service by any method,· not
specified in Rule 3. The Rules empowered the Government to determine the
methods of recruitment for filling any part_icular vacancy in the service.
An amendment introduced on August 2, 1966 to Rule 3 of the 1959 Rules
provided an additional method of recruitment viz. direct recruitment through
E'
the UPSC in accordance with Part VI of the RUies.
This Part provided that
in special circumstances recruitment by selection of candidates to the
posts
mentioned in Appendix IV shall be made by the- Commission by open adver~
tisement, notwithstanding anything contained in the Rules.
Right from the inception selection of officers for Class-I posts ·was made by
an examination conducted -by the UPSC. After the introduction of r. 3(d)
F'·
in the 1959 Rules in August 1966, 951 persons were recrui_ted by the UPSC by
\Vay of intcrvie\VS without~written examination.
·
. Some of the respondents who were officers selected by written examination
impugned the appointment of the 51 officers including the petitioners who were
working as Assistant Executive Engineers or Executive Engineers in the same
wing on the ground that the appointment of these 51 officers was contrary to
C:
the Recruitment Rules in that they were appointed in contravention of the
1959 Rules or in the alternative they contended that they should be treated to
have been appointed to ex-cadre posts and for this reason they were tiot eligible
for promotion to the posts of Executive Engineers, until the respondents werefirst appointed to those posts. Lastly the respondents contended that they were
entitled to be confirmed in preference to the petitioners. A similar writ petition \Vas filed by three Executive Engineers (among the present respondents)
H
alleging that their recruitment by the method of examination was in accordance with the Recruitment Rules but that the petitioners were appointed by
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SUPREME COURT REPORTS
(1980] ! S.C.R.
mere interviews, at method not permissible under the Rules and therefore those
who were appointed by interview method could neither be confirn1cd nor pro·
moted unless they were brought into the cadre and appointed to the
regular
cadre posts.
The l-ligh Court held that the Rules of 1966 had no retrospective operation
and that therefore an appointment made in contravention of' the rules
could
not be regularised by n1aking a rule under the proviso to Art. 309.
It also
held that the petitioners \Ve_re appointed to temporary posts without any right
to become permanent, but since the temporary appointments were outside the
service and ngainst ex-cadre posts, Rule 3 of he 1959 Rules had no application
and for that reason their appointments could not be said to be illegaJ.
While the writ petitions were being argued orders were issued on August
28, 1973 by which persons who were appointed as Assistant Executive Engineers by way of interview were deemed to have been inducted into the Engineering Service as Assistant Executive 'Engineers with retrospective effect from
August 2, 1966 i.e. the date of induction of r. 3 (d)
into the
1959
Rules.
Provisional seniority list was separately made for the different categories of
officers. This -order of August 28, 1973 was not however questioned before the
High Court.
In view of the decision of the High Court the Government withdre\\'
and
cancelled the provisional inter se seniority list dated August 28, 1973 and at the
same time it issued a Notification to the effect that the officers appointed by the
interview method would be deemed to have been inducted into the Central Engineering Service (Roads) C1ass-T Service as temporary officers in the grade with
effect from August 2, 1966.
On March 1, 1976 the Government issued a nonfication stating that it ,had
decided to set up two services called the Central Engineering Service (Roads)
Group 'A' comprising of officers appointed by the method of examination/
promotion and the other Central Engineering Pool, Group 'A' comprising of
officers appointed by the method of intervie\v. Rules in respect of both the
services were published and the inter-se seniority list of officers of the t\vo services were circulated to the concerned officers.
The Central Engineering Service Rules constituted a new service
called
the Central Engineering Service (Roads) Group
1A' consisting of (a) persons
whO were holding posts in the various grades included in the Central Engineer·
ing Service (Roads) Class I immediately before the commencement of the
1959 Rules; (b) persons who were appointed to the old service on or after the
date of commencement of the 1959 Rules,
except those
who have
been
appointed to the Pool Service; and (c) persons who may be appointed to the
new service after the commencement of the new Rules.
The Central Engineering Pool Group 'A' consisted of persons app<?inted to
the Roads Wing by competitive examination by
the
method
of interview
through the UPSC before the commencement of the
Pool
Rules.
A
note
appended to r. 3 contained a clarification that the regular tenure service of the
officers in the respective grade prior to their appointment to the Pool
wo?ld
count for the purposes of qua1ifying service for promotion and confirmation
in the Pool in the different grades.
Rule 5
authorised
Government
to
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H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY
211
keep jn abeyance certain posts and operate them as "Isolated Posts" outside
the Pool. Promotions to higher posts in Pool were to be made on the recom~
mendations of the Departmental Promotion-_ Committee.
In 1heir writ petitions the petitioners contended that
though
they were
appointed to the posts long before the respondents they
were
ranked n1uch
below the latter in the list of seniority and that consequently they would be
denied promotional opportunities to the higher posts, that their segregation
into a separate class called the Pool is totally unscientific and was in violation
of Articles 14 and 16 of the Constitution; and
that the classification
made
between the I)ool Officers and Service Officers is discriminatory and bore no
nexus with the object sought to be achieved by it.
HELD : · 1. Out of 40 posts of Superintending Engineers the Pool Officers
were occupying 27 posts whereas Service Officers held only 13 posts. There
is a historical reason for this state of affairs.
Recruitment on a
very large
scale was made by the interview' n1ethod in 1962, 1964 nnd 1965 for execution
of certain urgent \vorks.
1\.fost of the petitioners hnd a longer standing though
not in a regular cadre, and naturally they \vere .occupying even the two posts
in the isolated category which ·were meant for officers belonging to the regular
cadre. [224D-E]
2'. The so called Pool created by the 1976 Rules consisted of stagnant ·water.
There is to be no fresh recruittnent to the Pool posts and, therefore, allocations
to the Pool would always be shared by a definite and predictable nun1ber of
officers.
On the other hand, the other iving was a living and growing service
to which recruitment continued to be 1nade in subsequent years.
Allocations
to that ¥.'ing would have to be in proportion to the tot3l nun1ber of officers
\vorking therein but in the very nature ·of things -there were budgetary constraints on the creation of additional posts.
[224 F-G]
3. It cannot be said that persons holding shnilar posts and having similar
responsibilities to discharge could be classified into different categories for the
mere reason that so1ne of them were recruited directly by the interview method
and scme ·\\'ere recruited directly on the result of a competitive examination.
Were it permissible. to make such classification, ingenuity· may
suggest
the
nature of curriculum in different years as the basis of classification.
If subjection to different kinds of tests as a condition of eligibility produces qualitative
difference in the ability of persons rccn1ited to similar posts, it may perhaps
bccor!'.le necessary to limit the pron1otional opportunities, in regard to the relatively higher posts to those whose abilities are remarkably higher. The Gover~
ment had nlade no grievance that the petitioners who \Vere appointed by the
intervie.w method were in any way inferior in ability, efficiency or educational
qualifications to those who \Vere appointed after a written competitive examination. In the matter of experience too, the petitioners were in no '\Vay inferior
to the respondents. [224H-225C]
· 4. Though classification \Vhich proceeds merely on the basis
that certain
persons \\1ere recruited after going through one test and certain others
after
going through another test would be unscientific, it cannot be said on the facts
of the case that there could be no valid basis or justification for classifying the
various officers of the Roads Wing into separate categories. The appointments
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rnPREME COURT REPORTS
(1980] I S.C.R.
of some of the petitioners and some of the respondents were made in Violation
of the Rules which were in force at the relevant time. It is in respect of that
class of persons that the High Court held that they must be deemed to have
been appointed _to ex-cadre posts.
Persons for whose appointments the necessary legal sanction was wanting, were liable to be put out of employment b1:1t
in order to prevent any such harsh consequence, the High Court came to
record the finding that they must be held to have been appointed to ex-cadre
post.
That finding must be taken to have been affirmed in these proceedings,
with the result that no action would lie hereafter for a declaration or any_
similar relief asking that their appointments were illegal. [225G-226B]
5. The fact remains that persons who were appointed contrary to ·the Rules,
but to ex-cadre posts, were taken initially for Purposes of certain projects. Their
precarious tenure was continued from time to time but that would not furnish
justification for treating them on the same footing as others whose appointments
were made strictly in· accordance with Rules and who were appointed to posts
borne on the cadre of the Central Engineering Service.
A division of these
two classes of officeiS into separate categories would remove possible injustice
to those who were appointed to cadre posts in that, their. promotional opportunities would not be blocked or hindered by ex-cadre officers
who were
recruited on a large scale to meet an urgent necessity. Such a classification
would also minimise the injustice which would otherwise have been caused to
those who were appointed to ex-cadre poots.
[226 C-BJ
,ORIGINAL JURISDICTION : Writ Petition No. 159 of 1977
(Under Article 32 of the Constitution)
AND
CIVIL APPEAL NO. 1275 of 1975
Appeal by special leave from the Judgment and Order
dated
28-9-1973 of the Delhi High Court in Civil Writ No. 536/70.
AND
.JI
WRIT PETITION NOS. 1211 of 1977 and 3795 of 1978
(Under Article 32 of the Constitution)
.
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Dr. Y. S. Chitale, P. H. Parekh and C. B. Singh for the.Petitioners
in W.P. 159/77 and appellants in C.A. 1275/75.
M. K. Ra.mamurthi, Janardhan Sharma and litendra Sharma for
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the Petitioners in W.P. 1211/77.
]. M. Khanna for the Petitioners in W.P. 3795/78 and RR 6, 12,
13 and 16 fa the Appeal.
U. R. Lalit, E. C. Agrawala and Miss A. Subhashini for R. I in
W.P. 159/77, 3795/78.
M. Mudgal for RR 12, 14 and !Sin W.P. 159/77.
H. B. Datar and B. P. Singh for RR 2-5 in CA 1275/75, RR 27-
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H. S. VERMA v. SHIPPING & TRANSPORT MIKISTRY
213
(Chandrachud, C. J.)
30, 38-40, 42, 44, 47, 49-52 in W.P. 159/77 and R. 4 in W.P.
3795/78.
C. N. Murthy and R. Vasudevan for RR 19-21 and 24 in CA.
1275/75, RR 42, 44, 118 and 150 in WP No. 1211/77.
In pqson. (R. 53 in W. P. 159/77).
COUNSEL FOR THE PARTIES APPEARING PURSUANT TO
NOTICE:
o. P. Slwrl!Ul, J. M. Khamw, A. Subba Rao and B. P. Singh in
Writ Petition No. 159/77.
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C. N. Murthy and R. Vasudevan in W.P. No. 1211/77 and RR at c
SI. Nos. 42-44 and 115-118 of pnblished Notice in W.P. No. 159/77.
Jitendra Shanna in W. P. No. 1211/77
The Judgment of the Court was delivered by
CHANDRACHUD, C. J .-This is a group of Writ Petitions and an
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Appeal involving the questions, mainly,
(i) whether the petitioners and the appellants recruited directly
as Assistant Executive Engineers, Executive Engineers,
Superintending Engineers and, may be, as Chief Engineers
were appointed to regul.ar cadres in the Ministry of Shipping and Transport (Roads Wing), Government . o{
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India, or whether they were appointed to ex-cadre posts;
and
(ii) whether they can be put into a separate class for the purpose of regulating their seniority 'alld promotional opportunities in relation to others who
were appointed
to
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similar posts on the basis of the result of the Combined
Engineering Services Examination.
The petitioners and the appellants (whom we will refer to as the 'petitioners') were appointed after a viva voce test only, or to use the
languagJ of the current controversy, they were appointed after being
successfully interviewed by the Union Public Service Commission. The
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latter mode of expression helps to highlight that no "examination" as
such was involved in their selection and appointment as in the case
. of those others who now figure in the array of respondents.
Some of the respondents herein, who were then working as Assi.<;-
tant Executive Engineers in the Ministry of Shipping and Transport
B
(Roads Wing), filed a Writ Petition (C.W. 536 of 1970) in the Delhi
High Court against 51 officers, including the present petitioners, who
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SUPREME COURT REPORTS
[ 1980] J S.C. R.
were working either as Assistant Execμtive Engineers or as Executive
Engineers in the same Wing. Their con_tention was that the appoint;
ment of these 51 officers being contrary to the recruitmeQt rules was
illegal or alternatively, tbat tbey were appointed to ex-cadre posts and
not to the 'Central Engineering Service'.
.!} wa.s therefore claimed
B
thai none of those officers was eligible for promotion to the post of
Executive Engineer until the respo11.dents were first appointed to tbose
posts and that the respondents were entitled to be confirmed witb
immediate effect in preference to 1hose officers immediately on the
availability of permanent vacancies.
A similar Writ Petition (C.W. 537 of 1970) was filed in the Delhi
c
High Court by three Executive Engineers, who are amongst the present respondents, contending that whereas their appointment after
passing a COl]lpetitive examination beld by the U.P.S.C. was in accordance with the recruitment rules, the present petitioners were appointed to ex-cadre posts after a mere interview, that such a method of
recrnitment was not permissible under the rules, that the petitioners
herein were appointed for the limited purpose of assisting in the execution of certain projects and that those who were appointed in accord!ince with the rules were entitled to be treated as senior to those who
were not.
It was for ihese reasons contended that Executive Engineers
who were appointed by the interview method can neither be confirmed
nor promoted unless and until they were brought into the cadre and
appointed to the regular cadre posts.
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The Rules which are alleged to have been breached by the appointment of the petitioners were made by the President under the proviso
to article 309 of the Constitution.
They were notified on October
16, 1959 and were called 'the Centml Engineering Service (Roads)
of the Ministry of Transport and Communications, Department of
Transport (Roads Wing), Class I, Recruitment Rules, 1959'. The
Rules, evidently, did not prov1ide for appointment to the Central Engineering Service after a mere interview of a candidate by the Union
Public Service Commission.
But they were amended by a Notification dated August 2, 1966 issued by the President under the proviso
to article 309 of the Constitution.
By the amendment, clause (d)
was added to rule 3 as a. result of which appointments could he made
to the Central Engineering Service by direct recrnitment through the
Commission in accordance with Part VI of the Rules.
Part VI of
the amended Rules called 'Direct recruitment by selection through the
Commission provided that in special circumstances, direct recruitment by selection of suitable candid.ates, with such qualifications, within such age limits, and satisfying such other conditions as are consi-
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H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY
215
(Chandrachud, C. l.)
dered necessary at any time in the interest of the service, to the posts
mentioned in Appendix IV, shall be made by the Commission by
open advertisemen! notwithstanding anything contained in the rules.
Certain other consequential ameudments were made to the 19S9 Rules
by the 1966 Am«Q.dJ!lent.
The question V{hich arose for decision of the Delhi High Court
in the two writ petitions was whether the appointme11ts of the petitioners
herein, who ~ere appointed prior to August 2, 1966 were illegal and
if not, whether they were apn0inted to cadre posts or ex-cadre posts.
On behalf of the Governme!J! of India a counter affid~vit was filed
i• the High Court by Shri Harbans Singh, Under Secretary in the
Ministry of Tran§Jlort (Roads Wing), denying that ~e petitioners
were appointed to ex-cadre posts or that they were treated by the
Ministry as_ being outside the regular cadre of Engineering Service.
Counsel for the Union of India submitted in. the High Court that all
posts of junior CT\!Ss-I Assistant Engineers Consultant (as the Assistant Executive Engineers were then called) created in the Ministry of
Transport, Roads Wing, were posts in the service properly so-called
whether the appointments were made on a permanent basis or temporary basis. Counsel for some of the petitioners contended in the High
Court that the amendment made ig 1966 to the 1959 Rules ·was re·
trospective and therefore the appointment~ of the petitioners could
be considered to have been ma<le in accordance with the rules to !he
J'OSts borne on the cadre of th« Engineering Service. 1
The Delhi High Court was faced with a problem of priorities. If it
were to accept the Government of India's C()ritention that the petitioners were appointed to cadre posts, their appointments might have
been required to be treated as illegal since appointments to posts borne
en the cadre could not be made by the il)terview method under the
1959 Rules.
AllY finding or indication to such effect would have
paved the way for a challenge to the very legality of the petitioners'
~ppointments and eventually to their exit from the Engineering Department altogether.
On the other hand, accepting th.!' respondents'
contention that all of them had to be confirmed and promoted
in
preference to the petitioners would, :While legalising the petitioner's
appointments, virtually amount to denial of .Promotions to them in
higher posts.
By its judgment dated September 28, 1973 a Division Bench of
the Delhi Jligh Court h~ld !~t the Rules of .1966 had no retrospective operation.
Relying upon a decision of this Court in R. N. NanjutuiBppa v. T. Thimmaiah and Anr.(1) the High Court further held
(l) AIR 1972 SC 1767.
15-475 SCl/79
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SUPREME COURT REPORTS
[1980] 1 S.{;.R.
that, in any case, an illegal appointment could not be regularised by
making a rule under tlie proviso to Article 309 of the Constitution.
But in order to save the petitioners' appointments from the challenge
of 1llegality, the High Court rejected the Government's contention
that they were appointed to cadre posts in the Central Engineering
Service.
It held that !,he petitioners were appoi,nted to temporary
posts without any right to become permanent, for the purposes
of
projects like the International DevelopmeJ!t Association Loan Programme, Emergency RO'ad and Bridge Works Programme and Lateral
Road Project and Strategic Roads Work.
Since the temporary appointments of the petitioners were outside the service and against excadre posts, rule 3 of the 1959 Rules was regarded as having no application and therefore, the petitioners' agpointments could not in any
way be said to be illegal.
The High Court relied upon a decision
of this Court in Champaklal Chimani(ll Shah v. The Union of
India(') and held that the Governme~t has to employ temporary
servants to satisfy the needs of urgent contingencies and such appointments are perfectly )egitimate. So long as such temporary servunts
work against ex"cadre posts and are eveh promoted to higher ex-cadre
posts, no member of the Service, accon/ing to the High Court, could
have a justifiable grievance.
I
While the writ petitions were being argued in the High Court,
orders expressed in the name of the Prtsident were issued on August
28, 1973 by which persons appointed as1Assistant Executive Engineers
on thf> basis of interviews held by the U.P.S.C. were to be 'deemed
to have been inducted' into the Erigin~Jring Service as Assistant Executive Engineers with effect from August 2, 1966.
On the same date,
provisional joint-seniority lists were issued
separately for different
categories of Class· I Technic'!l Gazetted Officers in the Roads Wing
of the Ministry and representations from the concerned .officers were
invited within a period of one month. The parties requested the High
Court to dispose of the writ petitions without taking into coru;ideration
the effect and legality of the Presidential order dated August 28, 1973
and the provisional seniority lists circulated on that date.
Accordingly, the High Court did not pronounce upon the same.
In C.W. 536 of 1970 filed by 4 Assist;mt Executive Engineers who
were ,appoined by competitive examination, against 4 Executive Engineers and 47 Assistant Executive Engineers who were appointed by
the interview method, the High Court passed the following order :
H
"To summarise the position, it may be stated that respondents 2 to 52 were not appointed to the Service or to
(l) AIR 1964 SC 1854.
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H. S. VERMA V. SHIPPING & TRANSPORT MINfSTRY
217
(Chandrachud, C. l.)
any posts borne on the cadre of the Service. Their appointments were to ex-cadre posts and outside the Service and
those appointments were valid. The orders by which respondents 2 to 6 were promoted as Executive Engineers are not
liable to be quashed as it could not be shown that the promotions were made to the posts borne on the cadre of the Service or that a.s a result of those promotions the respondents
came to be appointed to the Service. Their initial appointments as well as promotions have been outside the servkc
and not to any posts borne on the cadre of the Serv:ce.
There is also no question of giving any directions for not
promoting any of the respondents to the posts of Executive
Engineers so Jong as the promotions are not tQ posts borac
on the cadre of the Service. As respondents 2 to 52 were
not appointed to the Service or to any posts borne on the
cadre of the Service, the only relief to which the petitioners
are entitled is that the Union of India shall not, so long as
the said respondents arc not legally appointed to the Service or to. any posts borne on the cadre of the Service,
treat them as having been appointed to. the Service or promote them to •any posts that may be included in the cadre
of tht~ Service."
C.W. 537 of 1970 was filed by 3 Executive Engineers against 10
Executive Engineers, 2 of whom were promoted as Superintending
Engineers. All the three petitioners in that writ petition were appointed by competitive examination, two in 1957 and one in 1958, that is
to say, before the making of the 1959 Rules.
Respondents 2 to 11
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to that writ petition were appointed by the interview method.
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question whether the petitioners in that writ petition, having been
appointed prior to 1959 Rules, could be deemed to have been appointed to the regular cadre of the Central Engineering Service was
not
considered by the High Court since the legality of their appointment
was not in issue.
While dismissing the writ petition the High Court
held:
G.
"As respondents 2 to 11 were not appointed to the service
and no posts have so far been declared to be post's borne on
the cadre of the Service it follows that they are holders of excadre posts outside the Service.
The promotion of any one
of them to the higher post of Planning Officer or SnperintendH
ing Engineer cannot legally be objected to by the petitioners.
Even if somehow the petitioners can be regarded to have been
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SUPREME COURT REPORTS
[1980] l S.C.R.
appointed to the Service, as was asserted Oil their behalf,
still respondents 2 to 11 having been directly •elected as
Executive Engineers ai:ainst ex-cadre posts can in their turn
Mpire for promotion to higher ex-cadre posts. . . . . . . . . .
The appointments of respondents 2 to 11 to ex-cadre posts
were in no way invalid."
In both the writ petitions the High Court made a significant observatien, to which events leading to the present proceedings may perhaps
be traced, that if it was desired by the Government of Indra that persons who were appointed against ex-cadre posts should also become
members of the regular Service, the service shall have fo be reconstituted by providing, amongst other matters, for the initial constitution
of the Service, future recruitment and determination of inter u:
seniority.
On May 31, 1974 the Government of India in the Ministry of
Shipping and Transport (Roads Wing) issued a Memorandum saying
that in view of the judgments pf the High Court in the two writ petitions, the provisional inter se Seniority Lists dated August 28, 1973 o.f
WI Cass I Technical G~et!OO Officers appointed fo the various grades
in the Roads Wing were being withdrawn and cancelled.
On the same date, that is, on May 31, 1974 the President issued
a Memorandum in each individual case cancelling the orders issued
under an earlier Memorandum dated August 28, 1973. By the latter
Memorandum orders were issued in each individual case that officert
appointed by the interview method will be deemed to have been inducted into Central Engineering Service (Roads) Class I Service as temporary officers in the particular grade with effect from August 2, 1966
being the date on which the 1959 Rules were amended so as fo provide
for appointment by the interview method.
The Memorandnm of Ma,y
31, 1974 contains a recital to the effect that it had become necessary
to issue it in view of the judgment of the Delhi High Court in Writ
Petition No. 536 of 1970 holding that the Assistant Executive Engineer~
could not be treated as having been appointed to any post borne on the
cadre of the Central Engineering Service.
On March 1, 1976 the Govermnent of India issued a Notification
saying that having regard to the judgments of the High Conrt in Civil:
Writ Petitions 536 and 537 of 1970, the Government a.fter a most careful consideration h:id decided to set up 2 Services for T~hnical Class
I Officers of the Roads Wing, one to be called the Central Engineeriugi
Service (Roads), Group A, comprising of officers appointed by illie
method of examination/promotion, and the other, to be called the
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H. S. VERMA v. SHIPPING & TRANSPORT MINISTRY
219
( Chandrachud, C. l.)
Central Engineering Pool, Group A, comprising of officers appointed
by the method of interview.
The recruitment Rules for the two SerYices were published in the issue of the Gazette of Indfa dated February 28, 1976. Two List's, one showing the nrunes of officers appointed to the two Services on the date of the commencement of the new
Rules and the other showing the inter se seniority of the officers of the
two Services, were circulated to the officers concerned with a request
to bring to the notice of the Government any factual errors or omissions
· and to submit representations, if so advised,
against the proposed
Seniority Lists within one month.
We will notice the relevant rules before proceeding to consider the
validity of the petitioners' contentions.
On October 16, 1959, the President in the exercie of powers conferred by the proviso to article 309 of the Constitution made rules
cilled 'the Central Engineering service (Roads) of the Ministry of
Transport & Communications, Department of Transport (Roads Wing),
Class I, Recruitment Rules, 1959'. At the time of promulgation of
these Rules, Assistant' Executive Engineers used to be called Assistant
Engineers Consultant and Executive Engineers as Divisional Engineers
Consultant.
Part II of the Rules containing rules 3 to 5 dealt with
the method of recruitment fo the Central Engineering Service (Roads).
Rule 3 provided that recruitment to the Service shall be made by any
of the following three methods : (a) By competitive examination In
aceordance with Part III of the Rules; (b) by promotion in accordance
with Part IV of the Rules; and (c) by transfer of an officer in Gov-
.ernment service in accordance with Part V of the Rules.
Rule 4
(b) provided that no appointment shall be made to the Service or to
any post borne on the cadre of the Service by any method not specified in rule 3. By rule 4(c) Government was given the power to determine, subject to the provisions of sub-rule (3), the methods of recruitment to be employed for the purpose of filling any particular vacancy
in the Service or such vacancies !'herein as may be required to be
filled during any particttlar period and the number of candidates to be
recruited by such method.
Rule 4(d) provided for reservation in the
ratio of 2/3 : 1 /3 to Assistant Engineers Consultant and
Assistant
Engineers, Grade I (Class II) respectively in the matter of promotion
to or for selection for the post of Divisional Engineer Consultant. Rule
4 ( d) contained an important qualification to the effect that if sufficient
number of suitable candidates were not available for promotion from
the grade of Assistant Engineer Consultant and Assist'llnt
Engineer
Grade I to the grade of Divisional Engineer Consultant, the remaining
vacancies in the grade of Divisional Engineer Consultant were to be
filled by transfer in accordance with Part V of the Rules.
A
B
c
D
E
G]
H J
A
B
c
D
E
F
l e
220
SUPREME COURT REPORTS
[1980] l S.C.R.
Part III of the Rules containing rules 6 to 18 dealt with recruitment
to the Service by competitive examination. Part IV containing rule
19 dealt with recruitment by promotion to the grade of Divisional
Engineer Consultant, Class I. Sub-rule (2) of rule 19 provided that
if sufficient number of officers were not available to fill the quota ot
either of the two categories mentioned in rule 19 (1) (i) the remaining vacancies in each category were to be filled either in accordance
with Part V of the Rules or through the Commission.
Part V of the Rules which dealt with recruitment by transfer of an
officer in Government service provided that the Government may, in
special cases and after consulting the Commission whern such consultation was nece8sary under the Union Public
Service Commission
(Exemption from Consultation) Regulations, transfer or take on deputation an officer in Government service in India to a post borne nn
the cadre of the Service.
On August 2, 1966 the Rules of 1959 were amended in exercise of
powers conferred by the proviso to article 309 of the Constitution. The
first signifiC'ant amendment made iu 1966 was the addition of clailse ( d)
to rule 3 of the 1959. Rules.
By that clause au additional method or
recruitment was provided, namely, 'By direct recruitment through the
Commission in accordance with Part VI' of the Rules.
Consequential
amendment& were made to clauses (c) and (d) of rule 4 of the 1959
Rules.
By rule 4 of the Amendment Rules, the concluding words "or
through the Commission" of rule 19(2) of the 1959 rules were omitted.
Lastly, a new part, Part VI, was added to the 1959 Rules under the
heading "Direct recruitment by selection through the Commission" -
The newly added Part VI provided thatIn special circumstances, direct recruitment by
selection
of suitable candidates, with such qualifications, within such
age limits, and satisfying such other conditions as are considered necessary at any time in the interest of the service, to
the posts mentioned in Appendix IV, shall be made by the
Commission by open advertisement notwithstanding anything
contained in these rules.
The Central Engineering Pool Group 'A' of the Ministry of Shipping and Transport (Roads Wing) Rules, 1976 and the Central Engineering Service (Roads) Group 'A' of the Ministry of Shipping and
Transport (Roads Wing) Rules, 1976 made under the proviso to article 309 of the Constitution were notified on February 24, 1976.
We
will refer to the former as the 'Pool Rules' and to the latter as the
'CBS Rules'.
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H. S. VERMA V. SHIPPING & TRANSPORT MINISTRY
!21
( Chandrachud, C. J.)
Turning first to the Pool Rules, rule 2(a) defines
"Pool" as the
"Central Engineering Pool, Group 'A', constituted under rule 3". Rule
2 ( e) provides that "Regular
continuous
Service"
means
service
rendered on a continuous basis after regular appointment to a grade
on the recommendations of the Departmental Promotion Committee,
or in consultation with the Commission, as the case may b6.
Part II of the Pool Rules which deals with the constitution of the
Central Engineering Service Gronp 'A' provides that there shall
be
constituted a pool, to be known as the "Central Engineering Pool Group
'A' ", consisting of persons appointed to the Roads Wing by the com"
petitive selections by the method of interview through the Commission
before the commencement of the Pool rules.
The note appended to
rule 3 contains a clarification to the effect that the regular continuow;
service of the officers in the respective grade in the Ministry of Shipping and Tmnsport (Roads Wing) prior to their appointment to the
Pool will count for the purposes. of qualifying service for promotion and
confirmation in the Pool in the grade of Assistant Executive Engineers,
Executive Engineers, Superintending Engineers and, Chief Engineers
(Level I and Level II poS".s).
By rule 5, the authorised strength of
the various grades of posts in the pool shall be such as may be determined and notified by the Govern_ment from time to time, provided that
the Government may, for reasons to be recorded in writing and in
consultation with the Commission, keep in abeyance such number of
posts in such grades as are included in the table below rule 4 and operate them as "isolated posts" outside the Pool. Appointments
to
the "isolated posts" are to be made by selection
or promotion,
as the case may be, on the recommendoation of a duly constituted Departmental Promotion Committee, from an integrated list of officers
working in the next lower grade in the Pool and in the Central Engineering Service (Roads), Group 'A'. The list is to be drawn up on
the basis of the length of their regular continuous service in their respective grades.
The qualifying service for promotion is the same as
faid down in Part III.
By rule 6, recruitment to the grades of Executive Engineer, Superintending Engineer and Chief Engineer (Level II
and Level I) in the Pool shall be made by promotion in accordance
with Part III, provided that a vacancy in these grades, whenever it
occurs, shall first be filled by transfer of an officer of the Pool holding
a corresponding post in the "isolated category of posts" in oaccordance
with the proviso to rule 5.
Part III of the Pool Rnles deals with recruitment by promotion to
the grades of Executive Engineer, Superintending Engineer and Chief
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
222
SUPREME COURT REPORTS
[1980] l S.C.R.
Engineer.
These promotions are required fu be made on the recommendations of the Depa11mental Promotion Committee.
The CES Rules contain provisions governing appointments to the
Central Engineering Service as contrasted with appointments to the
posts in the Pool.
By rule 3 of the CES Rules a new Service called
the "Central Engineering Service (Roads), Group 'A'" is constituted
of (a) persons who were holding posts in the various grades included
in the Central Engineering Service (Roads) Class I immediately before the commencement of the 1959 Rules, (b) persons who were
appointed t() the old Service on or after the date of commencement of
the 1959 Rules, except those who have been appointed to the Pool.
Service
and
( c) persons
who may
be
appointed to the new
Service after the commencement of the new Rules.
Rule 3 (3) con1'ains a proviso regarding isolated posts which is similar to the proviso
to rule 5 of the Pool Rules.
By rule 3 ( 4), recruitment to the Service
after the initial constitution thereof has to be made either by competitive examination or by promotion or by selection or by transfer or
deputation of an officer in Government service or by direct recru11ment
through the Commission.
The proviso to this sub-rule says tha.t
a
vacancy in the grades of Executive Engineer, Superintending Engineer
and Chief Engineer (Level II and Level I), whenever it occurs, shall
first be filled by the uppointment of an officer of the Service holding a
corresponding post in the "isolated category of posts" in accordance
with th.e proviso to sub-rule (3).
The validity of these rules is assailed before us in these Writ Petitions and the Appeal. The main grievance of the petitioners is that
though_ they were appointed to their posts long before the contesting
respondents, they will rank much below the latter in the list of seniority
and will consequently be denied promotional opportunities to the higher
posts. It is contended on behalf of the petitioners th'at their segregation
into a separate class called the Poot is totally unscientific and is
in
violation of the provisions of articles 14 und 16 of the Constitution.
The petitioners made no grievance against the creation of the category
of 'isolated posts' but their contention is that the classification made
between the- Pool Officers •and the Service Officers is discriminatory
and bears no nexus with the object to be achieved by it. If the object of
the dassification is to ensure higher efficiency in the Central Engineering Service, it is contended that the petitioners, who have rendered
meritorious service for the past many years and for longer periO<Js than
the contesting respondents, cannoi be put into a separate class thereby
denying to them an equal opportunity for promotion to higher posts
along with those junior officers who are put into the class of Ser:vice
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H. S. VERMA V. SHJPPINC! ~ TRANSfORT MINISTRY
223
(Chandrachud, C .