Petition Civil Nos
7900 02 of 1982
WITH Writ Petition Nos 837  853 of 1982
Under Article 32 of the Constitution of India WITH Civil Appeals Nos
3137 38 of 1993
1021 From the Judgment and Order dated 26784  27784 of the Rajasthan High Court in DB
Civil Special Appeal Nos 182  184 of 1984
WITH CMP Nos
19643 45 of 1988  CMP No
8272 of 1986
RK Garg Aruneshwar Gupta RK Kamal and SK Gupta for the Petitioners in WP Nos 7900 790282 SLPS
126828483085
and for the Respondent No 4 in CANo
164978
T Sridharan for the Petitioner in WPs
Nos 837  853 of 1982
MK Ramamurthi and Parijat Sinha for the Appellants in CA
No 164978 and for the Respondent No 4 in WPs
7900 8282
R F Nariman and PH Parekh for the intervenor in WPs
Nos 7900 0282
VR Reddy Additional Solicitor General VC Mahajan Ms
B Sunita Rao VK Verma and Ms A Subhashini for the Respondent in UOI CVS Rao NP for the Respondent in SLP Nos
126828483085
CV Rappai for the Respondent No 14 in WP
7900 0282
The Judgment of the Court was delivered by PUNCHHI J
These are a handful of writ petitions and special leave petitions which on grant of leave hereby and having become appeals can conveniently be disposed of by a common judgment
The fulcrum of the controversy herein and the shadow in which it works is a three judge Bench decision of this Court in Katyani Dayal  Ors
vs Union of India  Ors
 decided on March 26 1980
Before adverting to the facts and circumstances in which this cause has been presented to this Court it would be fruitful to give a broad outline of Katyani Dayal s case in the immediately succeeding paragraphs
Connected with Katyani Dayal s case were writ petitions filed in a represen 1022 tative capacity purporting to represent all temporary Assistant Engineers on a later point of time known as temporary Assistant Officers appointed by the Railway Board pursuant to the authority given by the President of India on the recommendations of the Union Public Service Commission selection based on interview alone
There was a separate classification of such temporary Assistant
Officers when compared with India Railway Service Engineers Class 1
Direct recruits to the Indian Railway Service of Engineers Class 1 were subjected to competitive written and personality tests and in the nature of things only the very best could emerge out successfully
On the other hand temporary Assistant Officers hereafter referred as Officers  at places were neither subjected to written nor to a personality test but as said before were selected on the basis of interview
Besides the minimum educational qualification which was the same for both the services three years experience as a Civil Engineer was
additionally required for the aspirants to the Indian Railway Service of Engineers Class 1 hereafter referred to as the Engineers  at places
While the President was the appointing authority of the Engineers the Railway Board was the appointing authority of the Officers
Both the members of these services on selection were due for different courses of training earmarked separately
There were a host of other factors which distinguished the quality and character of the personnel of the two parallel services as elaborately detailed in Katyani Dayal s case supra
Between the years 1955 and 1964 as many as 553 officers temporary Assistant Engineers were appointed by the Railway Board through the Union Public Service Commission
Though in the letters of appointment the officers temporary Assistant Engineers and others concerned were told that six of them would be absorbed into the Indian Railway Service of Engineers Class 1 every year this figure in the subsequent years was increased from time to time when in 1975 the figure as increased stood at 25 per year
The net result was that after absorption 107 Officers were residually left unabsorbed in the year 1976 by the time of the filing of the connected writ petitions in Katyani Dayal s case and they too were finally absorbed in 1979 by What was described as a blanket order
Before hand on September 17 1965 the Railway Board had taken a decision to the effect that the Officers so absorbed into the Indian Service of Engineers would be given weightage in seniority on the basis of half the total years of continuous service in working posts in Railways prior to their permanent absorption into Class 1 subject to a maximum weightage of five years
The then writ petitioners describing themselves as members of the Federation of Temporary Officers Association Indian Railways joining with them their President Vice President and Secretary of the aforesaid Federation as writ petitioners approached this Court 1023 in a representative capacity to seek relief in their seniority status
The principal claim of the writ petitioners was that Officers were appointed to temporary posts on the cadre of Engineers and that their seniority had to be reckoned on the basis of their length of continuous service though they conceded that in any given year the candidates appointed as Engineers on the basis of the results of the competitive examinations were placed above those appointed on the basis of selection by the Union Public Service Commission
The challenge was to the authority of the Railway Board to create such an unclassified parallel service something outside the preview of the Indian Railway Establishment Board
Notwithstanding the procedure of selection so adopted the writ petitioners contended that they were recruited in Class I service and supported their claim on diverse grounds so as to obtain the result that all Assistant Engineers formed one class under the Indian Railway Establishment Board
Challenge was made to the classification of personnel into those that were recruited on the basis of the competitive examinations and those that were recruited by selection but both by Union Public Service Commission terming it as arbitrary and not permissible under the equality clause in the Constitution
Grievance was voiced that the right of absorption of a handful of temporary Engineers Officers every year into the Service of Engineers was arbitrary and inequituous resulting in grave injustice rendering decades of service of the Officers to a mere waste
Unfortunately the then writ petitioners did not sue the respondents across in a representative capacity
In the fitness of things it would have been appropriate for the then writ petitioners to either involve all parties who could possibly have an interest or a likely affectation in the litigation or to sue them in a representative capacity if not individually
However some people did get impleaded as parties in that case to project their
point of view and due to the nature of dispute those predominantly were members of the Indian Railways Service of Engineers Class 1
This Court while dismissing the writ petitions held that the classification of temporary Assistant Officers separately from the Indian Railway Service Engineers of Class I was neither discriminatory nor violative of Articles 14 and 16 of the Constitution for the reason that it had nexus to the object sought to be achieved which mainly was efficiency of service and that both the services had started separately and never became one
This Court further viewed that the object of recruitment being different the methods of recruitment dissimilar the appointing authority being not the same the training imparted to the two unlike the tenure of temporary Assistant Officers being precarious and their maximum aspiration being only to be absorbed into the Indian Railway Service of Engineers Class 1024 were distinctive features and therefore no question of their entitlement to equal rights arose until and unless the temporary Assistant Officers got absorbed into the Indian Railway Service of Engineers Class 1
This court also ruled that the
seniority of theabsorbed temporary Assistant Officers would ordinarily reckon from the date of their absorption into the Indian Railway Service of Engineers Class I as stipulated in their letters of appointments With regard to the time factor this Court also took into account the long wait involved in the process but all the same approved of the measures of the Railway Board in lessening the Iona wait by giving them weightage of half of the length of service as temporary Assistant Officers subject to the maximum of five years
And lastly this court rejected the claim of the temporary Assistant Officers asking for equal status for equal pay and equal work leaving a ray of hope that such goal might be achieved in the not too distant future
The instant batch of matters is virtually on the same lines as of Katyani Dayal s case claiming the same relief and this time by the Temporary Assistant Officers through a body styled as the Federation of Directly Appointed Officers Suppressed of Indian Railways and a few others in a representative capacity across which stand arrayed the Union of India and the Railway Board as respondents
When this matter came up for hearing on 15 March 1990 before a three judge Bench in which one of us Punchhi J was a member it was It that the affected parties should be impleaded in their representative capacity so as to make the decision of this Court binding on every member of both the classes of employees
The requisite direction was thus made and carried out
Pursuant thereto some private respondents on record represent the entire body of similarly placed Engineers Thus both sides have sued and are being sued in their representative capacity
Mr RK Garg learned counsel for the petitioners has spear headed the claim of the temporary Assistant Officers on the basis of the so called developing concept of Article 14 in the years gone by especially in the field of the right to equality in matters relating to employment on appointment in service
He asserts that the development of law has gone a long way so as to shed the views expressed in Katyani Dayal s case justifying demolition of the demarcation between the two services made as it was in Katyani Dayal s case examining the question afresh in the light of Raghunandan Prasad Singh vs Secretary Home Police Department Government of Bihar  Ors 1988 Supp
SCC 519 Dr OZ Hussain vs Union of India 1990 Supp
SCC 688 at 691  Direct Recruit Class II Engineering of officers Association vs State of Maharashtra  Others  and 1025 other cases
It was contended that Katyani Dayal s case upholding the creation of temporary posts outside the service was on the basis which has since been eroded and equal pay for equal work with equality in all other conditions of service including avenues of confirmation absorption promotion pension and security have become inflexible postulates of service jurisprudence
On the other hand learned counsel for the respondents has opposed such method contending that what is being asked is a virtual review of Katyani Dayal s case which is not permissible by means of successive writ petitions
Addedly it is urged that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal s case if not the strict principles of res judicata
Lastly it was urged that when the matter has been settled in this particular service its unsettling by means of a petition under Article 32 of the Constitution is impermissible
We were taken through Katyani Dayal s case extensively
What we find is that the distinction and the classification of the temporary Assistant Officers and members of the Indian Railway Service of Engineers Class I fell clearly to be identified and marked
The only method of fusion was by means of a phased absorption as noticed in paragraph 9 of the Report detailed above
The scheme having met with approval of this Court cannot by mere passage of time be taken to have become vulnerable by subsequent exponence and dimension of Article 14 of the Constitution
This Court in Katyani Dayal s case specifically said that relief of equality was being denied to the then petitioners because of the history origin and structure of the Services
No opinion was expressed however as to the validity of the given weightage of half the length of service to Temporary Assistant Officers
subject to a maximum of five years because of its being questioned elsewhere
We are unable to make any headway or act in judicial indiscipline towards widening the scope of these matters in the face of the Constitution Bench decision of Direct Recruit s case supra
Amongst the conclusions summed up by the Constitution Bench conclusion J and K seal the fate of these matters
These are J The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error
It is not in the interest of service to unsettle a settled position
KThat a dispute raised by an application under Article 32 of the 1026 Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final
 The distinction between the two services was well marked in Katyani Dayal s case supra and the important question of equality was once for all settled
To find fault with it at this juncture again on the touch stone of equality dimension would be to unsettle a settled position
That venture is neither in the interest of justice nor in the interest of service
When there has been complete absorption of the personnel of one service into the other and the seniority of the absorbers is to be reckoned from their date of absorption as stipulated in their appointment matters and as held by this Court with weightage of half the length of service subject to a maximum of five years it would otherwise be imprudent now at this point of time to dig up old issues
The rule of weightage also appears to us to be reasonable and this is a pattern which has been noticed and approved in many a Service
Similarly when the dispute raised between the Officers in a representative capacity and Engineers not so represented in Katyani Dayal s case supra still it was a dispute raised before this Court which has been decided finally
A dispute now sought to be raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineers across also in a representative capacity must be held to be barred by principles of res judicata as also in the rule of constructive res judicata
The cases aforementioned relied upon by learned counsel for the petitionersappellants do not remove this hurdle however broadly may Article 14 and 16 be viewed and expanded
It is thus unnecessary to elaborate those cases and discover their ratio
The are argument of learned counsel for the appellant that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one and not providing for promotional avenues reasonably falls to the ground in view of the bar of re agitation erected by Direct Recruit s case supra
Equally when absorption had been made possible and its pace quickened with weightage it is difficult to find fault with the scheme at this point of time to look for a substitution at our end as that would unsettle a settled position established more than a decade ago
We also do not see any compelling reasons to deviate from the principles enunciated in the judgment
At this point of time the bars erected by Direct Recruit s case supra appear to us to have further thickened goading us to refrain from the exercise of any undoing
We thus leave the matter as it is
It needs mentioning that the appeals being decided instantly are against the judgments and orders of the High Court rejecting writ petitions of the petitioners 1027 before it on the basis of Katyani Dayal s case supra
No details of these cases are necessary to dispose of these appeals for the reasons stated above
As a result these petitions and appeals tail but without any order as to costs
In view of the dismissal of the main matters no orders are necessary on all the CMPs
GN Matters dismissed


Summary:
The appellant had applied for recruitment as Examiner of Personnel in the Department of Civil Aviation but was unsuccessful
He challenged the qualifications detailed in the advertisement as being discriminatory and tailor made with a view to exclude him
He contended that while he would have qualified under the 1969 Rules framed under the proviso to Article 309 the rules were amended in 1978 and 1989 with a view to deprive him of his chance
He submitted that the court should regulate the prescription of higher qualifications and strict standards for navigators and pilots in view of the frequent air accidents
Dismissing the appeal this Court HELD 1 In exercise of rule making power under Proviso to article 309 the President or authorised person is entitled to prescribe the method of recruitment educational and technical qualifications or conditions of service for appointment to an office or post under the State
These rules being statutory cannot be impeached as being tailor made to suit specific individuals
777 B Bs
Vadera vs Union of India  Ors   General manager Southern Railway vs Rangachari  at 596 State of Mysore vs PNarasing Rao 19681 1 SCR 407 at 411 State of J  K vs Triloki Nath Khosa AIR 1974SCI and Sate of Orissa vs
NNSwamy   para 18 followed
2 No motives can he attributed to the Legislature in making the law
777 C 773 3 The prescribed qualifications and the suitability of the applicant would be tested by the UPSC
777 C 4 It is for the rule making authority or for the Legislature to regulate the method of recruitment prescribe qualifications etc
It is not for this court to trench into and prescribe qualifications in particular where the matters are of a technical nature 777 F