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

- **Citation:** [1987] 3 S.C.R. 427
- **Court:** Supreme Court of India
- **Decided:** 1987-06-08
- **Case number:** Civil Appeal Nos. 622625 of 1982
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-o-aggarwal-ors-v-state-of-u-p-ors-9748
- **Pages:** 29

## Headnote

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
A
B
.,.,
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 consultation 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.
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 appoinF
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
~ ~
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 initially 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.
),
c
On July 28, 1969, the State Government brought into force the
U .P. Service of Engineers (Buildings and Roads Branch) Class II
(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
determined by the date of order of appointment in a substantive
vacancy .... ''
y
I
-
E
The competitive examinations for direct recruitment of Assistant
•
Engineers in accordance with the new Scheme were held upto the year
,,j
--
1971 and were discontinued by the executive instruction contained in
•
F
G
Office Memorandum dated June 23, 1972 as it was felt that the system
had done more harm than good to the service.
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,

## Text

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P.O. AGGARWAL & ORS.
v.
STATE OF U.P. & ORS.
JUNE 8, 1987
[A.P. SEN AND B.C. RAY, JJ.]
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
A
B
.,.,
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 consultation 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.
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 appoinF
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
~ ~
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 initially 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.
),
c
On July 28, 1969, the State Government brought into force the
U .P. Service of Engineers (Buildings and Roads Branch) Class II
(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
determined by the date of order of appointment in a substantive
vacancy .... ''
y
I
-
E
The competitive examinations for direct recruitment of Assistant
•
Engineers in accordance with the new Scheme were held upto the year
,,j
--
1971 and were discontinued by the executive instruction contained in
•
F
G
Office Memorandum dated June 23, 1972 as it was felt that the system
had done more harm than good to the service.
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
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 preparation 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
T-~ -
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 c
on the basis of the examination held under the amended Rules cannot
~
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
y
December 7, 1961 was not arbitrary In so far as it fixed the proportion
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 Memorandom does not affect the petitioners who have become members of.the
E
service and are entitled to have their seniority reckoned from the date of
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 F
being appointed substantively in temporary posts will no longer be
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 G
amended r. 23 Jays down that seniority will be determined from the date
)-- 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 vested rights. [444H; A-BJ
H
- ·1--
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 precedence over Assistant Engineers appointed in the matter of determination 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 Amendments 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 disadvantageous 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
G
· vested rights and are arbitrary and not reasonable then such retrospertive amendments are subject to judicial scrutiny. [446B-H; 447 A-CJ
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 ExecuD
live Engineer seniority-cum-merit is the criterion. These temporary
Assistant Engineers, unless they are selected to the 50% quota in permanent 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 violative 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.
~
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
G
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 discrimination. [449C-F)
B
c
D
E
F
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·
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 becoming 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
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
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.
-
y
-- ·-'-
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.]
433
9. Purely ad hoc employees or employees on purely officiating
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
hoc appointees whose services have been regularised by the regularisation 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
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. 622625 of 1982.
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
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
A
B
c
D
E
F
list in the cadre of Assistant Engineers in the United Provinces (Buildings & 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 separated. In 1936 U.P. Service of Engineers Class II Rules (Buildings and
Roads Branch) pertaining to P.W.D. were framed in exercise of powers 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 substantive 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
E
(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;
-
(ii) by the appointment after (sic) advertisement and after consulting 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 Commission; 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 appointed to a temporary post in the cadre of service after
consultation with the Commission.
G
(iv) by promotion of members of the United Provinces Subordinate 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-
-------------- ---- -- --
--
-
y
·• .,.
P.D. AGGARWAL v. STATE OF U.P. (RAY. J.]
435
ment, Buildings and Roads Branch, who have shown excepA
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 ComB
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 recruitment 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 permanent 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
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 completed 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 Government Engineering Departments, will be made on the results of competitive examination to be conducted by the Public Service CommisH
436
SUPREME COURT REPORTS
[1987] 3.S.C.R.
A sion. Candidates possessing technical and other qualifications prescribed 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 existing 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,
(b) 'Member of the Service' means a government servant appointed 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.
f.
(c) 'Direct recruitment' or 'Direct appointment' means recruitment or appointment in the manner prescribed in rule (S)(a)
.,__
(i) and S(b)(l);
(d) 'Commission' means the Uttar Pradesh Public Service
A
B
Commission;
C
( e) 'Department' means the Public Works Department, Uttar
Pradesh;
(f) 'Governor' means the Governor of Uttar Pradesh.
(g) 'Secretary' means the Secretary to Government Public
Works Department, Uttar Pradesh;
(h) 'Chief Engineer' means the Chief Engineer, Public Works
'
Department, Uttar Pradesh.
(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;
D
E
(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-
'
(a) in permanent vacancies-
(i) by direct recruitment on the result of a competitive examination conducted by the Commission;
--
G
H
438
A
SUPREME COURT REPORTS
[1987] 3.S.C.R.
(ii) by selection from amongst the Officers appointed as
Assistant Engineer by direct recruitment through the Commission 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.
c
(b) in officiating or temporary vacancies-
{i) by direct recruitment on the result of a competitive examination conducted by the Commission;
(ii) by promotion of members of the Public Works Department,
"-1
Subordinate Engineering Service, and Public Works Department 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);
G
H
{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
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:
Provided further that with a view to giving facility to tempor-
-
-
.Jo.
P.O. AGGARWAL v. STATE OF U.P. (RAY. J.}
439
ary Assistant Engineers recruited in the Department in consultation with the Commission up to the date Commencement 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
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 recruited in the Department in consultation with the Commission
and were working in this capacity on the date of commencement of first competitive examination:
A
B
c
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
that the Governor, in consultation with the Commission
may, for special reasons, increase or decrease the percentage
fixed for recruitment by selection and competitive examination in any particular period of recruitment.
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 (Buildings and Roads Branch) Class II (Amendment) Rules, 1971. Rule 23
which deals with seniority has been substituted. The relevant portion
F
~ 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 examinaH
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 probation. These appointees were called direct recruits in short 'D' category. 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 appointment 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 examination 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 memorandum 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 examinations 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
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.
_,.L_--
F
The respondents are the directly recruited Assistant Civil
Engineers in the Buildings and Roads Branch pursuant to the provisions of Rule S(a)(ii) in the temporary posts of the cadre upto 1961
after consultation with the Public Service Commission. These temporary 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 discriminatory 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
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
~ 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.
A
B
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 yardD
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 probation 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 temporary and permanent posts and as such there can be substantive appointments 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 substantively cannot be arbitrarily cut off and excluded in determining
seniority.
H
---
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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 objections 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.
In the instant appeal there is no controversy that all the temporary 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
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L--
P.D. AGGARWAL v. STATE OF U.P. [RAY. J.l
443
to temporary posts in the matter of determination of their seniority in
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
A
}.. Government Engineering Departments by providing direct recruitB
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.