ISDICTION Writ Petition Nos
147 to 151 of 1976
Under Article 32 of the Constitution WITH SPECIAL LEAVE PETITION CIVIL No7905 OF 1979 From the Judgment and Order dated 29 8 1978 of the Allahabad High Court in SA No 88770
MC Bhandare Mrs section Bhandare and T Sreedharan for the Petitioners
LN Sinha Attorney General Mr MK Banerjee Addl
Solicitor General RB Datar AK Ganguli RN Sachthey and Miss A Subhashini for RR 1 and 2
FS Nariman Anil B Dawan PH Parekh CB Singh and R Karanjwala for RR 1  19
SC Gupta and Ramesh Chand for RR 14
Madan Bhatia and D Goburdhan for RR 20
YS Chitale VM Tarkunde and AN Karkhanis for RR 28 and 31
SD Gupta in person for impleading RR in WP 14776
Girdharee Singh and SK Jain for the Intervener
147 The Judgment of the Court was delivered by CHINNAPPA REDDY J
Several hundred Railway Engineers who should have been busy elsewhere building bridges laying or doubling tracks and so on have found themselves in the corridors of this Court in pursuit of the leaves of career
Quite a contingent was present in Court anxiously watching the proceedings and listening with expect attention to every word that fell from counsel and judge
One could not help wondering whether this multitiered multi varne  Service system was itself not productive of a career neurosis destructive of the very efficiency which is sought to achieve
In this case as in most other service matters that reach this Court the question which arise for consideration relate to classification confirmation seniority promotion etc questions which appear to agitate the minds of the members of all services
Administrators seeking to find solutions to some of the problems very soon discover that their solutions are no more than illusions and have created other problems
First one party and then another party all seek the protection of the Court
The Court is no expert administrator
Lacking expertise lacking the administrator s access to information there are obvious limitations to what the Court may be
The Court may at best attempt to solve some basic legal issues
That the Court strives to do without disturbing the administrative equilibrium
The service with which we are concerned in this Case is the Indian Railway Service of Engineers Class I
While the petitioners claim that they were appointed to this service after selection by the Union Public Service Commission the respondents allege that the petitioners were appointed as temporary Engineers only constituting a special class and service by themselves and were not appointed to the Indian Railway Service of Engineers Class I at all
It appears that from the time of the first Five Year Plan onwards several important assignments such as the construction of major bridges new lines doubling of electrification of existing lines etc were taken up by the Civil Engineering Department of the Indian Railways
It became necessary to create a number of temporary posts of Class I Indian Railway Service of Engineers and Class II Engineers to carry out these works
In 1955 it was estimated that about 200 additional Engineers would be necessary within the next two years to deal with the planning surveying estimating and construction of the multitude of the proposed development works
It was not thought possible to 148 meet the additional personnel requirements from existing sources which were direct recruitment to Class I on the basis of the results of a competitive examination and promotion to Class II from Class III
Though the conversion of some of the temporary posts into permanent ones might meet part of the requirement it was thought recruitment through normal channel to such posts would necessarily have to be spread over a period of years so as to avoid bunching of officers within particular age group 
It was therefore decided to recruit in the first instance fifty temporary Engineers immediately
Their scale of pay was to be the same as that of the Indian Railway Service of Engineers
The age limit was to be 25 to 35 years so as to attract Engineers with practical experience
The appointments were to be normally made on the minimum of the time scale but persons with previous experience could be fitted into the scale at a higher stage
As the posts were to be temporary it was decided that an incentive should be given to attract suitable candidates by reserving a proportion of the permanent vacancies in the Indian Railway Service of Engineers each year for being filled by such temporary Engineers
Six vacancies in the Indian Railway Service of Engineers were to be so earmarked annually to start with
The quota could be increased later
On permanent appointment to the Indian Railway Service of Engineers seniority would count from the date of such appointment
Proposals on these lines were conveyed by the Railway Board to the Union Public Service Commission on February 21 1955 with a request to take steps for the early recruitment of temporary Engineers
A formal requisition in the prescribed form was also sent to the Union Public Service Commission
In this form the post was designated as Assistant Engineer the number of posts was mentioned as 50 and the class of service to which the post belonged was mentioned as Gazetted Railway Service
Against the heading whether permanent or temporary the posts were mentioned as temporary
Against the column if the post is temporary please state  a when it was sanctioned b the period for which it has been sanctioned and c irrespective of the period of sanction how long it is expected to last and whether it is expected to be retained on a permanent basis eventually it was mentioned that the posts would be sanctioned shortly in connection with a number of projects that the period would be two years in the first instance but was likely to be extended upto five years and that the employment might continue indefinitely but on a temporary basis
It was specified that the candidates would be eligible to be considered for absorption in permanent vacancies at the rate of six per year
The scale was mentioned as Rs 350 350 380 380 30 590 EB 30 770 40 850 this being the Junior Scale of pay of Indian Railway Service of Engineers Class I
It was 149 said that higher initial salary was permissible according to experience and qualifications
The academic qualifications were to be the same as for regular recruitment to Indian Railway Service of Engineers
Against the heading prospects of promotion to higher post it was stated that they might be considered for promotion to senior scale posts in the grade of Rs 600 40 1000 502 1150 according to the exigencies of service
Similar proposals and indents for recruitment of temporary officers to six other departments of the Railways were also simultaneously made
Pursuant to the requisition by the Railway Board the Union Public Service Commission issued an advertisement inviting applications for 50 posts of Assistant Engineers Ministry of Railways Service Class I Gazetted posts temporary for two years in the first instance but likely to continue
The minimum educational qualification was stated to be a Degree in Civil Engineering but an additional qualification of about 3 years experience as a Civil Engineer  was also prescribed
The qualification was relaxable at the discretion of the commission in the case of candidates otherwise well qualified
It was mentioned in the advertisement that the candidates would be eligible for being considered for absorption in permanent vacancies at the rate of six per year  and might be considered for promotion to senior grade posts in the scale of Rs 600 40 1100 502 1150 according to the exigencies of service 
It appears that the reference to Class I in the advertisement was considered by the Railway Board to be a mistake
The Railway Board therefore addressed a letter dated October 31 1955 to the Union Public Service Commission pointing out that in their requisition they had indicated Gazetted Railway Service as the service to which recruitment was to be made and that it was not intended that it should be either Class I or Class II
It was also mentioned that statements had been made on the floor of the Lok Sabha and Rajya Sabha that the posts were temporary and neither in Class I nor in Class II
The Commission was accordingly requested to issue a suitable correction slip
Thereafter in the subsequent advertisements issued by the Union Public Service Commission there was no reference to Class I
It was merely mentioned that applications were invited for specified number of posts of Assistant Engineers Civil Ministry of Railways posts temporary but likely to continue
The petitioners in the various Writ Petitions who submitted their applications in response to such advertisements were selected by the Union Public Service Commission at various times between 1955 150 and 1964 and were offered appointments as Temporary Assistant Engineers  by the Railway Board
Everyone of them was told that the appointment would be on a temporary basis in the scale of Rs 350 350 380 380 30 590 EB 30 770 40 850
They were also expressly told that the posts to which they were appointed would be neither in Class I nor in Class II service though they were eligible on completion of three years service to be considered alongwith other temporary Assistant Engineers for absorption in Class I Junior Scale against vacancies ear marked from time to time for the absorption of temporary Assistant Engineers in the Indian Railway Service of Engineers Cadre upto a maximum of six per year
They were also expressly informed that in the event of their being selected in Class I Service their seniority would count from the date of their permanent appointment to Class I Service
They were required to execute service agreements as applicable to temporary officers
It was also stipulated that in all matters not specifically referred to in the order of appointment the person appointed would be governed by the provisions of the Indian Railway Establishment Code and the extant orders issued from time to time
The petitioners accepted the terms offered to them and joined duty in the posts to which they were appointed
The agreements which the petitioners and others like them were required to execute and which they presumably did execute were in a standard form known as Agreement for Temporary Assistant Officers of the Indian Railways 
Paragraph 2 of the standard form and agreement specified that the appointment was in a gazetted post C which is neither in Class I nor in Class II service on scale Rs 350 350 380 380 30 590 EB 770 40 850
Paragraph 5 mentioned that the person appointed would be eligible along with other temporary Assistant Officers for being considered for absorption in the permanent vacancies in the Class I junior scale of the  department upto a maximum number of vacancies in a year as may be fixed by the Government and that in the event of his being selected for that service his seniority would count from the date of confirmation
Paragraph 6 recited that he would be considered for appointment to a Senior Scale post
The agreement provided that in respect of matters for which no provision was made in it the provisions of the Indian Railway Establishment Code from time to time in force or rules made thereunder shall apply to the extent they were applicable to temporary Assistant officers
It was further provided that the decision of the Government as to their applicability interpretation and effect shall be final
It should be mentioned here that though there was no previous Presidential sanction for making appointments to posts which were 151 neither in Class I nor in Class II but merely in gazetted service  the matter was rectified and Presidential sanction was subsequently obtained in November 1956
This was communicated by the Railway Board to the General Managers of all Indian Railways by letter No E 55RC 16 Pt
A dated November 22 1956
It was also decided by the President that the Railway Board of the competent authority to appoint Temporary Assistant Officers in the various departments of the Railways
This was mentioned by the Board in letter No E GF P 56RC 16 Pt
A dated 18 12 57 addressed to the General Managers of all Indian Railways
Between the years 1955 and 1964 as many as 553 temporary Assistant Engineers were appointed after selection by the Union Public Service Commission
Though in their orders of appointment as temporary Assistant Engineers the petitioners and others were told that six of them would be absorbed into the Indian Railway Service of Engineers Class I every year the quota was increased to eight per year in 1957 and fifteen per year in 1961
In 1960 the quota was fixed at 60 of the actual intake of Probationers from the CES etc
examinations
Again in 1975 the quota was increased to 25 per year
The net result was that all but a 107 temporary Assistant Engineers were left unabsorbed by the time of the filing of the Writ Petitions and they too were finally absorbed in 1979 by what was described to us as a blanket order 
We were informed that the validity of the absorption on this mass scale is under challenge in some Writ Petitions filed by members of the Indian Railway Service of Engineers Class I
At this juncture we also find it necessary to mention that the Railway Board decided on September 17 1965 that the temporary officers so absorbed into the Indian Railway Service of Engineers should also be given weightage in seniority on the basis of half the total number of years of continuous service in working posts on Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years
This of course was the result of representations made by the temporary officers
This too we are told is under challenge
The petitioners have filed these Writ Petitions in a representative capacity purporting to represent all temporary Assistant Engineers appointed on the recommendation of the Union Public Service Commission claiming that in law they could only be and were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither Class I nor Class II
They claim that they were appointed to temporary posts in the cadre of Indian Railway Service 152 of Engineers Class I and that their seniority had to be reckoned on the basis of their length of continuous service though they concede that in any given year those appointed on the basis of the results of the competitive examination might be placed above those appointed on the basis of the selection by the Union Public Service Commission
They contend that the Railway Board had no authority to create an unclassified service as it were outside the provisions of the Indian Railway Establishment Code
Notwithstanding the requisitions issued by the Railway Board the advertisements issued by the Union Public Service Commission and the letters of appointment issued to the petitioners they contend that they were appointed to the cadre of Indian Railway Service of Engineers Class I and to no other service
They contend that they were recruited to Class I service under rule 130d of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendations of the Union Public Service Commission
They question the vires of the note to Rule 106 which was added by way of amendment in 1956 and which provided that temporary Assistant Officers would not be classified either as Class I or as Class II 
The petitioners claim that the distinction made by the Railway Administration between Assistant Officers recruited on the basis of the results of the competitive examination and the temporary Assistant Officers recruited on the recommendation of the Union Public Service Commission was discriminatory and offended Articles 14 and 16
They contend that all Assistant Officers formed one class under the Indian Railway Establishment Code
The further classification of Assistant Officers into those that were recruited on the basis of a competitive examination and those that were recruited on the recommendation of the Union Public Service Commission was a micro classification not permissible under the law
They point out that the minimum academic qualifications and the scales of pay of the Permanent and the Temporary Engineers for the sake of brevity the Assistant Officers appointed on the basis of the results of the competitive examination may hereafter be described as permanent Engineers while those appointed on the basis of the recommendation of the Union Public Service Commission may be described as Temporary Engineers were identical the duties and functions were the same and they occupied interchangeable posts
They further allege that in any case the right of absorption of six temporary Engineers only every year into the Indian Railway Service of Engineers were arbitrary and inequitous
It had resulted in such gross injustice that two decades of service of several of the petitioners
was to be counted for nothing
153 11
Before proceeding to consider the various contentions raised on behalf of the petitioners it is necessary to make a brief reference to the history service and legal of one of the many petitioners
Shri Katyani Dayal was working as an Assistant Engineer in the service of the Punjab Government from 1952 onwards
He was one of those who was selected by the Union Public Service Commission and appointed as a temporary Engineer in 1958
He was drawing pay in the junior scale
He crossed the Efficiency Bar in 1966 and according to him he was thereafter entitled to be considered for promotion to the senior scale to the post of District Officers
He founded his claim on r 1333 c on the basis that he was an Assistant Officer within the meaning of that expression as then defined by r 1023
As he was not so promoted and as it was proposed on the basis of some circulars to promote permanent Engineers of four years standing he filed a Writ Petition in the High Court of Allahabad claiming that he was entitled to be considered for promotion to officiating post of District Officer
The Railway Board opposed the claim of Katyani Dayal on the ground that he was a temporary Assistant Engineer and not an Assistant Officer and therefore not entitled to be promoted in terms of r 1333c
The Railway Board s contention was over ruled by a learned Single Judge of the High Court and a direction was given to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the posts of District Officers as soon as vacancies arose
The Railway Administration was directed to ignore the circulars which gave preference to Class I junior scale officers of four years standing or more as against temporary Assistant Engineers
An appeal filed by the Railway Administration under the Letters Patent was dismissed by a Division Bench of the High Court
Though the Division Bench dismissed the appeal on August 1 1974 the Railway Administration did not implement the judgment but instead on December 12 1975 amended rule 1023 1333c and f and introduced new rule 10217 so as to expressly exclude temporary Assistant Officer newly defined by r 1027 from the category of Assistant Officer and thus make him ineligible for promotion to the senior scale under r 133 3c and f
It appears that the status of the temporary Assistant Engineers recruited on the recommendation of the Union Public Service Commission has been the subject matter of the decisions of several High Courts
Some of them have been placed before us
The relevant provisions of the Indian Railway Establishment Code may now be referred to
154 14
Rule 1023 originally defined an Assistant Officer to mean a Gazetted Railway Servant drawing pay on the scale applicable to Junior Scale Officers  but was not to include a Class II Officer 
By an amendment made on December 31 1975 the expression was redefined and an Assistant Officer  now means a Gazetted Class I Railway Servant drawing pay in the junior scale
It does not include a Class II Officer or a temporary Assistant Officer who is not classified either as Class I or Class II 
Prior to December 31 1975 Temporary Assistant Officer was not defined but by an amendment dated December 31 1975 Temporary Assistant Officer has been defined and now means a gazetted Railway servant drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as Class II Officer
Rule 10213 defines a Railway Servant  as meaning a person who is a member of a service or who holds a post under the administrative control of the Railway Board including a person who holds a post in the Railway Board
Rules 105 and 106 to the extent they are relevant are as follows 105
For the purpose of the rules in this Volume the railway services shall be classified as follows Gazetted 1 The Railway Services Class I 2 The Railway Services Class II
Non gazetted
3 The Railway Services Class III
4 The Railway Services Class IV
5 The Workshop Staff
Establishments and categories including probationers falling under the services mentioned in rule 105 are shown below Class I 1 Posts in the Railway Board 155 2 Directors Joint Directors Deputy Directors Assistant Directors Railway Board and Research Designs and Standards Organisation Secretary Deputy Secretary Under Secretary and Section Officers Grade II Railway Board
3 Indian Railway Service of Engineers 4 Indian Railway Accounts Service 5 Indian Railway Traffic Services 6 Indian Railway Service of Mechanical Engineers 7 Indian Railway Service of Electrical Engineers 8 Indian Railway Service of Signal Engineers 9 Indian Railway Medical Service 10 Indian Railway Stores Service 11 Senior Revenue Establishment Indian Railways comprising such specialist and Miscellaneous posts as have been included in Class I eg Chemist and Metallurgists Senior Scale and Chief Cashiers Senior Scale
Class II Gazetted posts not included in Class I Note
Temporary Assistant Officers will not be classified either as Class I or Class II
Class III      Class IV      It must be mentioned here that this Note to rule 106 was not there originally but was added in 1956
Rule 107 provides that the prescribed scale of pay admissible to Railway servants belonging to Railway Service Class I and Class II shall be as specified in appendix XIV
156 Rule 108 may also be extracted here and it is as follows 108
Sanctioned strength of cadres
Subject to any statutory provision in this regard the strength including both the number and character of posts of the Railway Services Class I and II shall be determined by the Railway Board General Managers of Indian Railways may create temporary posts in the Railway Services Class I and Class II subject to such limits as may be laid down by the Railway Board
Provided the total number of sanctioned gazetted post in any grade Heads of Departments Deputy Heads of Departments District Officers Assistant Officers are Class II Officers of the service concerned is not exceeded General Managers are empowered to vary solely in the public interest having regard to changes in the work and responsibilities of the posts concerned and not in the interest of individual officers the distribution of posts within that grade for a period not exceeding 12 months
Rule 109 to the extent it is relevant in this case is as follows 109
The cadres of the services and departments included in Railway Services Classes I and II other than the Medical Department and specialists posts on Indian Railways shall be fixed in accordance with the principles stated below  1 Separate cadres shall be maintained for each Indian Railway
2 The number of permanent working posts that is posts required for ordinary duty on the railway shall be first determined for each service or department and divided into the following grades  i Administrative ii District Officers 157 iiiAssistant Officers and Class II Services
b     c The number of posts to be allotted to the Assistant Officers  grade shall be calculated with reference to the total number of Administrative and District Officers  Posts and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers  grade to the higher grade after a given period of service
For this purpose all the administrative posts including the general administrative posts shall be taken into account
d The rest of the posts included in a iii shall be allotted to the Class II Service
e The total number of posts thus arrived at for each grade in a department shall form the permanent duty strength of each service or department
3     4     Rule 112 provides that the number of posts sanctioned in each grade in a department shall in no case be exceeded without the sanction of the authority competent to create a post either permanent or temporary in the grade
Rule 116 prescribes that except as provided in r 1334 officiating promotion to the Assistant Officer s grade or to a higher grade of gazetted Railway Servants from Class II service or from the non gazetted establishment is not permissible
Rule 1181 provides that the number of Gazetted Railway servants on duty in a department shall not exceed the permanent duty strength sanctioned for that department
Rule 125 prescribes that all appointments to a Railway Service Class II shall be made by the President on the recommendation of the Union Public Service Commission from time to time in accordance with the rules framed by them
158 Rule 129 provides that the rate of normal recruitment shall be determined by the President with reference to the sanctioned strength of a service or Department
Rule 130 is important and may be fully extracted here
It is as follows 130
Method of recruitment
Recruitment to Class I service in the various departments of Railways shall be made through a competitive examination held in India by the Union Public Service Commission b promotion of specially qualified gazetted railway servants of the Class II Service including officiating gazetted railway servants of the service or department c in the case of Transportation Power and Mechanical Engineering Department by appointment of candidates as Special Class Apprentices and d occasional admission of other qualified persons on the recommendation of the Union Public Service Commission
The quota reserved for permanent promotion from Class II to Class I has been fixed at 33 13 of the vacancies in the Junior Scale Class I Senior Scale in the case of Medical Department
Rule 131 provides that Probationers to the Railway Service Class I shall be required to undergo a period of training as may be prescribed by the President
Rule 132 provides for recruitment to Railway Service Class II
Rule 133 deals with promotions to gazetted posts
We are concerned with rule 1333c and f which to the extent relevant were previously as follows 133
Promotions to gazetted posts 1     2     159 3 The General Manager may appoint a     b     c An Assistant Officer to officiate as District Officer provided that such a gazetted railway servant who has not passed the efficiency bar may be so appointed only if i a gazetted railway servant who has passed the efficiency bar is not available or ii the vacancy is not expected to exceed three months de    f substantively an Assistant Officer to the District grade provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than ten years of total service and has been declared fit to cross the efficiency bar in the junior scale
The period of 10 years of total service will also include the two years of training in the case of direct recruits
In respect of promoted gazetted railway servants all those placed in the Seniority list above the last direct recruit who fulfils the above condition will receive confirmation in their turn
 These provisions were also amended on December 31 1975 and they are now as follows  c an Assistant Officer to officiate in the Senior Scale provided that such an Assistant Officer who has not passed the efficiency bar may be so appointed only if an Assistant Officer who has passed the efficiency bar is not available d     160 f substantively an Assistant Officer to the Senior Scale provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than eight years of total service and has been declared fit to cross the efficiency bar in the junior scale
The period of eight years of total service will also include the two years of training in the case of direct recruits
In respect of promoted gazetted railway servants all those placed in the seniority list above the last direct recruit who fulfils the above condition will receive a confirmation in their turn
Rule 139 makes provision for the making of recruitment rules and the note to rule 139 provides that in the case of recruitment to gazetted posts the rules should be published in the Gazette of India in the section allotted to Statutory Rules and Orders
Rule 144 obliges every railway servant to execute an agreement with the President of India at the time of his substantive appointment and further provides that those appointed for a limited period may also be required to execute such agreements
Rule 20033 defines cadre as meaning the strength of a service or a part of a service sanctioned as a separate unit 
Rule 200322 defines a permanent post as meaning a post carrying a definite rate of pay sanctioned without limit of time
Rule 200329 defines a temporary post as meaning a post carrying a definite rate of pay sanctioned for a limited time
Rule 200330 defines a tenure post as meaning a permanent post which an individual Railway servant may not hold for more than a limited period
Rule 200331 defines time scale of pay and whole of it may be extracted here 31 a Time scale pay means pay which subject to any conditions prescribes in these rules rises by periodical increments from a minimum to a maximum
It includes the slabs of pay formerly known as progressive
b Time scales are said to be identical if the minimum the maximum the period of increment and the rate of increment of the time scales are identical 161 c A post is said to be on the same time scale as another post on a time scale if the two time scales are identical and the posts fall within a cadre or a class in a cadre such cadre or class having been created in order to fill all posts involving duties of approximately the same character or degree of responsibility in a service or establishment or group of establishments so that the pay of the holder of any particular post is determined by his position in the cadre or class and not by the fact that he holds that post
The earlier narrated facts show that for quite several years it was distinctly understood by the appointing authority as well as the persons appointed that those who were appointed as Temporary Assistant Engineers on the basis of the selection made by the Union Public Service Commission did not belong either to Class I or to Class II of the Indian Railway Service of Engineers
It was understood that they would be eligible for being considered for absorption in the Indian Railway Service of Engineers Class I in an annual quota reserved for such absorption and that their seniority would be reckoned thereafter from the date of their confirmation in Class I
It was also understood that they would be eligible for being considered for promotion to officiating posts in the senior scale
This position in regard to their status was made clear without the possibility of a shadow of doubt in the letters of appointment issued to them and the agreements which they were required to execute
Considerable argument as advanced on the question whether a service not contemplated by the Indian Railway Establishment Code could be created and whether appointments of Gazetted Railway servants not falling in Class I or Class II and therefore falling outside the provisions of the Indian Railway Establishment Code could be made
The submission was that the Indian Railway Establishment Code did not contemplate a class of service which did not belong either to Class I or Class II and that every gazetted railway servant had to belong either to Class I or Class II and the question whether the posts to which appointments were made belonged to Class I or not had to be determined with reference to the minimum educational qualifications prescribed for the post the scales of pay the functions and duties etc
It was submitted that notwithstanding the clear assertion in the letters of appointment and the agreements the petitioners must in law be considered to have been appointed to the Indian Railway Service of Engineers Class I and to no other service
article 53 of the Constitution vests the executive power of the Union in the President to be exercised by him either directly or through 162 officers subordinate to him in accordance with the Constitution
article 731a stipulates that the executive power of the Union shall extent to the matters with respect to which Parliament has power to make laws Union Public Service and all India Services are included in item 70 of the Union List List I of the Seventh Schedule enumerating the matters with respect to which Parliament has the exclusive power to make laws
The proviso to article 309 of the Constitution makes it competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the Parliament to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union
The inevitable sequitur from these Constitutional provisions is that the President acting directly or through Officers subordinate to him is free to constitute a service with as many cadres as he chooses to create posts without constituting a service or to create posts outside the cadres of the constituted service
The President or the person directed by him may or again if he so chooses he may not make rules regulating the recruitment and conditions of service of persons appointed to such service or posts
He is also free to make or not to make appointments to such services or posts
Nor is it obligatory for him to make rules of recruitment etc
before a service may be constituted or a post created or filled
But if there is an Act of Parliament or a rule under the proviso to article 309 on the matter the executive power under Articles 53 and 73 may not be exercised in a manner in consistent with or contrary to such Act or rule vide B N Nagarajan  Ors
vs State of Mysore  Ors State of Kerala vs M K Krishan Nair  Ors etc
So the previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers
That precisely was what was done in 1956 and subsequent years upto 1965
The administrative expedience and exigence of the time required the creation of temporary posts outside the cadres of the Indian Railway 163 Service of Engineers
The circumstances and the reasons necessitating the creation of these posts of Temporary Engineers were fully set out in the letters of indent  addressed by the Railway Board to the Union Public Service Commission the details of which have already been mentioned by us in paragraph 4 supra
The posts so created were not to be confused with the posts in the cadre of the Indian Railway Service of Engineers Class I notwithstanding that the scale of pay and the duties were to be the same
That the posts were not to be treated as in Class I or in Class II of the Indian Railway Service of Engineers was expressly mentioned and clarified in the requisitions made by the Railway Board to the Union Public Service Commission and the correspondence which ensued between the Railway Board and the Union Public Service Commission
It was also made clear in the letters of appointment and the agreements required to be executed by the persons appointed
Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various Departments of Indian Railways which were neither in Class I nor in Class II but merely in gazetted service the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956 and by the President further specifying the Railway Board as the authority competent to make appointments of such temporary Assistant Officers
This is apparent from the letter No E 55RC 16Pt
A dated November 22 1956 and letter No 5 GF P56 RC 16Pt
A dated December 12 1956 to which we have referred in paragraph 8 supra
The posts of Temporary Assistant Officers were thus created and appointments made under valid authority and outside the existing cadres of the Indian Railway Service of Engineers
The letters of indent the advertisements the letters of appointment and the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commission were to be a source of recruitment to the Indian Railway Service of Engineers Class I
It was so understood from the inception by the persons appointed as well as the Railway Administration
In fact subsequent absorptions into the Indian Railway Service of Engineers was the sugar if one may use such an expression held cut to those seeking appointment as temporary Assistant Officers
Year by year a few Temporary Assistant Officers were indeed absorbed into the Indian Railway Service of Engineers after selection by a Departmental Promotion Committee and be it noted not automatically on the basis of seniority
If Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class I we do not see how any temporary Assistant Officer could possibly be under 164 any misapprehension that he was appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service
It is not possible to accept the submission that they must be considered to have been appointed under r 130d of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same
There were special reasons for recruiting Temporary Assistant Officers outside the cadres of the Indian Railway Service of Engineers and when it was admittedly and avowedly so done and when right through such officers were merely treated as a source of recruitment to the Indian Railway Service of Engineers it would not be permissible for us to hold that the Temporary Assistant Officers were recruited to the cadre of the Indian Railway Service of Engineers Class I 20
One of the submissions of the petitioners was that whatever the Railway Board might be asserting now or might have asserted even from the inception factually the Temporary Assistant Officers were appointed to temporary posts borne on the cadre of Indian Railway Service of Engineers Class I and not to any ex cadre posts
It was submitted that the posts to which appointments were made were not temporary posts in the sense that they were posts of short duration they were posts which admittedly were likely to continue indefinitely and even made permanent
The appointments could therefore have only been made to temporary posts borne on the cadre of the Indian Railway Service of Engineers
We do not think that there is any substance in these submissions
It is no doubt true that a cadre may consist of permanent as well as temporary posts and there may be permanent vacancies in permanent as well as temporary posts borne on the cadre
But it does not follow that appointments stated to be made to posts outside the vary service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue
We do not see how we can ignore the very purpose of scheme of recruitment of Temporary Assistant Officer which was to recruit Temporary Assistant Officers outside the existing Service and cadres to meet the anticipated requirements of certain special objects
Even in the requisition made in the prescribed form by the Railway Board to the Union Public Service Commission it was men 165 tioned the posts will be sanctioned shortly in connection with a number of projects
It was not mentioned that the posts were already borne on the cadre of the Indian Railway Service of Engineers
Our attention was invited to the Annual Administrative Reports where it was said no distinction was made between classified and unclassified service
We do not think that these reports are of the slightest help
The reports merely refer to appointments temporary as well as permanent made in the gazetted service by direct recruitment
Gazetted Railway services must include both the Indian Railway Service of Engineers and the Gazetted Railway Service constituted by the temporary Assistant Officers
Therefore by merely taking into account the number of Temporary Assistant Officers for the purpose of calculating the total number of persons appointed to Gazetted Railway Service it cannot conceivably be said that Temporary Assistant Officers were appointed to cadre posts in the Indian Railway Service of Engineers
Our attention was also invited to the classified lists of Officers published by the Railway Board
This list takes the case of the petitioners no further
There is nothing in the list to indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers
On the other hand under the column Date of appointment to Class no entry is made against the names of any of the Temporary Assistant Officers who had not yet been absorbed into the Indian Railway Service of Engineers
We were also referred to the reports of the Administrative Reforms Commission where it is said In the Railways there is a sizeable number of unclassified posts equivalent to Junior Class I and only a small number of them are taken each year into the regular service
This statement does not support the case of the petitioners that they were appointed to posts borne on the cadre of Indian Railway Service of Engineers
Far from it
Passages from the reports of the Central Pay Commission were also read out to us to emphasize that the posts have continued over the years indefinitely
If posts were initially created and sanctioned for short periods we do not see how the subsequent continuance of the posts indefinitely would make persons appointed to the posts members of the regular service namely the Indian Railway Service of Engineers Class I 21
Considerable argument was advanced on the question of the status  and the effect of the note  found below rule 106
It was said that the note did not form part of the rules made by the President under the proviso to Article 309 of the Constitution and therefore it could not amend the other statutory rules
The note was neither declaratory nor explanatory and was of no affect whatever
We think that the argument regarding the status  and the effect of the note is of no real 166 relevance
The note merely states an existing fact known to all concerned
It was known that posts of Temporary Assistant Officers in gazetted railway service who were not to be classified either as Class I or as Class II  had been sanctioned by the President who had designated the Railway Board as the authority competent to make appointments to those posts
The note below rule 106 merely stated this fact
With or without the note the Temporary Assistant Officers would still not be classified either as Class I or Class II
Their classification outside Class I and Class II was not dependant on the note but on the Presidential action in regard to the creation of the posts
This is perhaps an appropriate stage for referring to the amendments introduced in 1975 to the Indian Railway Establishment Code
The expression Temporary Assistant Officers  which was not previously defined in the Railway Establishment Code was sought to be defined by new clause 17 of R 102 to mean a Gazetted Railway Servant drawing pay on the scale applicable to Junior Scale Offices but not classified either as Class I or as Class II Officer
The expression Assistant Officer was redefined so as not to include a Temporary Assistant Officer who was not classified either as Class I or as Class II 
Apart from the principal submission that the 1975 amendments were violative of articles 14 and 16 of the Constitution it was submitted that the amendments were prospective in nature and did not affect the petitioners all of whom had been appointed as Temporary Assistant Officers long prior to the 1975 amendment
We do not think that the amendments have any effect one way or the other on the status of the Temporary Assistant Officers
What was always well known to the Temporary Assistant Officers and the Railway Board and what was the inevitable result of the Presidential sanction for the creation of posts which were not to be classified either as Class I or Class II was made explicit in the Indian Railway Establishment code also by the introduction of these amendments
This became necessary because in the Writ Petition filed by Katyani Dayal the Allahabad High Court while appearing to hold that Temporary Assistant Officers belonged neither to Class I nor to Class II service held that they came within the then existing definition of Assistant Officer  so as to entitle them for promotion under r 133 of the Indian Railway Establishment Code
We are afraid it was the use of the expression Temporary Assistant Officer  that has led to considerable confusion
The expression Temporary Assistant Officer  was coined to describe the new post created for the first time in 1955
The expression was not used to signify officers temporarily holding the posts of Assistant Officers in the several established Railway Services
For instance a Class II Assistant Engineer 167 who is temporarily promoted to hold the post of an Assistant Engineer Class I may be described as a Temporary Assistant Officer but he certainly would not be a Temporary Assistant Officer  appointed to any of the posts specially created by the President which were neither in Class I nor in Class II
The word Temporary  in the expression Temporary Assistant Officer  was not used to qualify the words Assistant Officer
The whole of the expression was intended to describe the particular post which was neither in Class I nor Class II which was created in 1955
There would not have been any confusion and it would have been much happier if instead of the expression Temporary Assistant Officer some other expression such as Special Assistant Officer or Special Assistant Engineer had been chosen
We are of the view that the Allahabad High Court was not justified in looking at the amended definition of Assistant Officer  in isolation and concluding that the expression Assistant Officer  included Temporary Assistant Officer because Temporary Assistant Officer was also a gazetted Railway servant who drew the junior scale of pay
The definition of Assistant Officer was not to be read in isolation in that manner
It should have been read conjunctively with Rules 105 106 and 108
A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway Establishment Code Railway services were to be classified into Class I Class II Class III Class IV and Workshop staff
Rule 106 specified the appointment and categories falling under the services mentioned in Rule 105
Rule 108 required the Railway Board to fix the strength of the Railway Services  Class I and Class II
There could therefore be no question of an officer not falling within the class category or cadre specified in rules 105 106 and 108 claiming to be an Assistant Officer  within the meaning of that expression
A person recruited to the post of Temporary Assistant Officer  not classified as Class I or Class II Officer could not claim to belong to the Class category or cadre specified in Rules 105 106 and 108 and was therefore not an Assistant Officer within the meaning of that expression even before the 1975 amendment
We now come to the principal submission made to us namely that the classification of Temporary Assistant Officers separately from the Indian Railway Service of Engineers Class I was discriminatory and had no nexus to the object to be achieved namely efficiency of service and was therefore violative of Articles 14 and 16 of the Constitution
It was argued that the minimum academic qualification for the posts of Temporary Assistant Officer  was the same as that prescribed for entry into the Indian Railway Service of Engineers Class I the scale of pay of Temporary Assistant Officer  was the same as hat of a Class I Officer of Junior Scale the functions and duties were 168 similar and on all matters not expressly provided the Temporary Assistant Officers like Class I officers were to be governed by the provisions of the Railway Establishment Code and the Rules made thereunder
There was so much identity on all vital and important matters that the classification of Temporary Assistant Officers  outside the Indian Railway Service of Engineers Class I was arbitrary
It led to all manner of discrimination in the matter of advancement in service seniority promotion etc
The unfairness of it all was sought to be graphically demonstrated by pointing out how after twenty years of service Temporary Assistant Officers continued to be Temporary Assistant Officers while Class I officers recruited much later were placed much higher than them in order of seniority and had risen to much higher positions in the service
Another limb of the argument on the question of discrimination was that all Assistant Officers whether they were permanent Assistant Officers or Temporary Assistant Officers constituted a single cadre and it was not permissible to further classify them on the basis of the manner of their recruitment namely by competitive examination or by selection by the Union Public Service Commission
Part of this submission has already been met by us and we have shown how Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code
It is true that the minimum educational qualification for the post of Temporary Assistant Officer was the same as that for recruitment to the Indian Railway Service of Engineers Class I
It is true that the scale of pay is the same and the functions and duties are the same
It is also true that except to the extent provided the Temporary Assistant Officers were also subject to the provisions of the Indian Railway Establishment Code and the rules made thereunder
But there are certain fundamental differences between two classes which cannot be ignored and which demand attention
To begin with the object of recruitment to the Indian Railway Service of Engineers is to provide Officers of the highest quality to meet the requirements of all posts in the service including Senior Administrative posts
Rule 1092c of the Indian Railway Establishment Code extracted earlier expressly provides that the number of posts to be allotted to the Assistant Officers  grade shall be calculated with reference to the total number of administrative and District Officers  posts and shall be so fixed as to allow of a continuous flow of promotion from the Assistant Officers  grade to the higher grades after a given period of service
For this purpose all the administrative posts including the general Administrative posts are required to be taken into account
On the 169 other hand the object of recruiting Temporary Assistant Officers was to meet specific requirements of various projects with a prospect of promotion in a temporary capacity to a senior scale post and absorption into the Indian Railway Service of Engineers Class I They were not to be members of the Indian Railway Service of Engineers but were to be a source of recruitment to the Indian Railway Service of Engineers
Thus the very appointments of Temporary Assistant Officers were to temporary posts outside the cadre and outside the recruitment rules of the Indian Railway Service of Engineers Class I and the very nature of this tenure was precarious whereas Class I Officers recruited on the basis of a result of competitive examination were appointed to cadre posts strictly in accordance with the recruitment rules
Next and equally important is the fundamental qualitative differences linked with the method of recruitment
True the minimum educational qualification is the same
But those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competitive written and personality tests
Only the very best can aspire to come out successful
The Temporary Assistant Officers were not subjected either to a written or to a personality test but were selected on the basis of an interview by the Union Public Service Commission
In addition to the minimum educational qualification three years  experience as a Civil Engineer was also prescribed
Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I it was replaced by experience in the case of those wanting to be Temporary Assistant Officers
Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of Temporary Assistant Officers was the Railway Board no doubt pursuant to the authority given by the President
Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers
For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the Department too while the training for Temporary Assistant Engineers was a brief six months  training intended merely to equip them for carrying out the specific jobs
In the matter of terms and conditions of service while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I those provisions are applicable to Temporary Assistant Officers to the extent there is no specific provision in their letter of appointment and agreement
170 26
Keeping in mind these similarities and dissimilarities let us examine the legal position
We cannot do better than to refer to the decisions cited at the Bar not all but a few illustrative cases
In State of Punjab vs Joginder Singh the question arose whether the constitution by the State of two Services consisting of employees doing the same work but with different scales of pay or subject to different conditions of service such as promotional opportunities was violative of Articles 14 and 16 of the Constitution
The argument based on the postulate that equal work must receive equal pay was repelled by quoting the following observations from an earlier decision of the Court in Kishori Mohanlal vs Union of India
 The only other contention raised in that there is discrimination between Class I and Class II officers inasmuch as though they do the same kind of work their pay scales are different
This it is said violates article 14 of the Constitution
If this contention had any validity there could be no incremental scales of pay fixed dependant on the duration of an officer s service
The abstract doctrine of equal pay for equal work has nothing to do with article 14
The contention that article 14 of the Constitution has been violated therefore also fails
 The second postulate that if there was equality in pay and work there must be equal conditions of service was rejected as unsound
It was observed at p 191 192 If for instance an existing service is recruited on the basis of a certain qualification the creation of another service for doing the same work it might be in the same way but with better prospects of promotion cannot be said to be unconstitutional and the fact that the rules framed permit free transfers of personnel of the two groups to places held by the other would not make any difference
We are not basing this answer on any theory that if a government servant enters into any contract regulating the conditions of his service he cannot call in aid the constitutional guarantees because he is bound by his contract
But this conclusion rests on different and wider public grounds viz that the government which is carrying on the administration has necessarily to have a choice in the constitution of the services to man the administration and that the limitations imposed by the constitution are not 171 such as to preclude the creation of such services
Besides there might for instance be temporary recruitment to meet an exigency or an emergency which is not expected to last for any appreciable period of time
To deny to the government the power to recruit temporary staff drawing the same pay and doing the same work as other permanent incumbents within the cadre strength but governed by different rules and conditions of service it might be including promotions would be to impose restraints on the manner of administration which we believe was not intended by the constitution  Examining the facts of the case before them the Court noticed that the two services started as independent services the qualifications prescribed for entry into each were different the method of recruitment and the machinery for recruitment were different and they continued as different services and were never interpreted into one service
The Court said at p 193 If they were distinct services there was no question of inter se seniority between members of the two services nor of any comparison between the two in the matter of promotion for founding an argument based upon article 14 or article 161
They started dissimilarity and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles
In State of Jammu  Kashmir vs Triloki Nath Khosa  Ors
a rule which provided that only those Assistant Engineers who possessed a degree in Engineering would be eligible for promotion as Executive Engineer and which totally denied any opportunity for promotion to Assistant Engineers who were Diploma holders was challenged as infringing the fundamental rights guaranteed by Articles 14 and 16 of the Constitution
Under the rules recruitment to the cadre of Assistant Engineer was to be made by direct recruitment of Degree holders in Civil Engineering or by transfer of degree or diploma holders who had served as Supervisors for a period of not less than five years
The argument was that degree holders and diploma holders having been integrated into a common class of Assistant Engineers there was no justification for the classification for promotion to the post of Executive Engineer
The Court upheld the rule and held that the classification of Assistant Engineers into degree holders 172 and Diploma holders could not be said to rest on any unreal or unreasonable basis
Classification made with a view to achieving administrative efficiency in the Engineering Service was clearly co related to higher educational qualifications since higher educational qualifications was atleast presumptive evidence of higher mental equipment
Educational qualification was always recognised as a safe criteria for determining the validity of classification
The earlier decisions of the Court in Roshan Lal Tandon vs Union of India and Moryan Coutindo  Ors
vs Collector of Customs Bombay  Ors were distinguished on the ground that they were cases where direct recruits and promotes who were fused into a common stream of service were sought to be treated differently by reference to the consideration that they were recruited from different sources whereas in the case before the Court the classification rested fairly and squarely on the consideration of educational qualifications
It was pointed out that the earlier cases did not rule out a classification on a basis other than that they were drawn from different sources
However while upholding the validity of the rule Chandrachud J and Krishna Iyer J uttered words of caution and it is upon these words of caution that the petitioners rely
Chandrachud J said at p 790 But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications
Excellence is or ought to be the goal of all good government and excellence and equality are not friendly bed fellows
A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants
But let us not evolve through imperceptible extensions a theory of classification which may subvert perhaps submerge the previous guarantee of quality
The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment
What after all in the operational residue of equality and equal opportunity Krishna Iyer J said at p 792 Mini classifications based on micro distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity
To overdo classification is to undo equality
173 29
In Mohammed Shujat Ali  Ors etc
vs Union of India  Ors etc
one of the questions which arose for consideration was whether the distinction made between Graduate Supervisors and non Graduate Supervisors and the allocation to these categories of three and one vacancies respectively out of every four vacancies in the next higher promotional posts was violative of Articles 14 and 16 of the Constitution
After quoting with approval the observations of Chandrachud J and Krishna Iyer J in State of J  K vs Trilokinath Khosa supra
Bhagwati J observed at p 481 To permit discrimination based on educational attainments not obliged by the nature of the duties of the higher post is to stifle the social thrust of the equality clause
A rule of promotion which while conceding that non graduate Supervisors are also fit to be promoted as Assistant Engineers reserves a higher quota of vacancies for promotion for graduate supervisors as against non graduate Supervisors would clearly be calculated to destroy the guarantee of equal opportunity
After saying so much the Court however upheld the rule which made the differentiation between Graduate and non Graduate Supervisors on the ground that the differentiation had not been made for the first time by the impugned rule and graduate Supervisors had always been treated as a distinct and separate class and the two were never integrated into one class
Since the two categories of Supervisors were never fused into one class it was held there was no question of unconstitutional discrimination on the ground of differential treatment being given to them
In section B Patwardhan  Ors
vs State of Maharashtra  Ors
the question concerned a formula of seniority
Direct recruits and promotees though drawn from two different sources constituted in that case a single integrated cadre
They discharged identical functions bore similar responsibilities and acquired an equal amount of experience in their respective assignments
Yet the formula provided that probationers recruited during any year shall in a bunch be treated as senior to promotees confirmed in that year
While the formula gave to the direct recruits the benefit of even the one year s period of training and another year s period of probation for the purposes of seniority it denied to promotees the benefit of their long and valuable experience
There was no intelligible ground for the differentiation bearing nexus with efficiency in public service
174 Confirmation was one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies and it was on confirmation that the promotees seniority was made to depend
The formula was struck down by the Court
Reliance was placed on the decision of the Court in A K Subraman vs Union of India where it had been held while interpreting rules relating to Central Engineering Service Class that though in cases where recruitment was made from different sources a quota system could be validly applied the quota rule was to be enforced at the time of initial recruitment to the post of officiating Executive Engineer and not at the time of their confirmation
The Court had further observed that there was a well recognised distinction between promotion and confirmation and that the tests to be applied for the purpose of promotion were entirely different from those that had to be applied at the time of confirmation
In H section Verma  Ors
vs Secretary Ministry of Shipping  Transport  Ors2 the facts were somewhat peculiar
Certain persons were directly recruited to the Engineering Service of the Ministry of Shipping and Transport Roads Wing as a result of a written competitive examination
Certain other persons were also directly recruited but by interview through the Union Public Service Commission although such a method of selection was not contemplated by the rules
In 1966 a rule was added providing for selection by interview through the Union Public Service Commission
The 1966 rule was held not to be retrospective in some Writ Petitions filed in the Delhi High Court by the persons who had been recruited as a result of written competitive examination
The High Court while holding that the amendment was not retrospective did not hold that those appointed prior to 1966 by the interview method were not regularly appointed
Instead the High Court held that they were appointed and promoted to ex cadre posts
In 1973 a notification was issued by the Government to the effect that the Officers appointed by the interview method must be deemed to have been industed into the service as temporary officers in 1966
Later in 1976 the Government decided to set up two Services to be called the Central Engineering Service Roads
Group A  comprising of Officers appointed by the method of examination and the other the Central Engineering Pool Group A  comprising of officers appointed by the method of interview
Officers of both the services were eligible to be promoted to certain posts called isolated posts
Appointments to the isolated posts  were to be made by selection or promotion as the case may be on the recommendation of a Departmental Pro 175 motion Committee from an integrated list of officers to be drawn up on the basis of the length of their continuous service in their respective grades
The officers appointed by the method of interview assailed the rules contending that though they were appointed to their posts long before the officers appointed by the method of competitive examination they would rank much below the latter in the list of seniority and would consequently be denied promotional opportunities to higher posts
Having regard to the very complicated nature of the facts the Court after discussion with the learned counsel appearing for the various parties and the Government made an order which they thought was best and just in all the circumstances of the case
While issuing the directions certain observations were made
It was said at p 427 
We are unable to suggest the contention that persons holding similar posts and having similar responsibilities to discharge can be classified into different categories for the mere reason that some of them were recruited directly by the interview method and some were recruited directly on the result of a competitive examination
Were it permissible to make such classifications 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 recruited to similar posts it may perhaps become necessary to limit the promotional opportunities in regard to the relatively higher posts to those whose abilities are remarkably higher
But it is nobody s case and the Government has made no grievance that the petitioners who were appointed by the interview method are in any way inferior in ability efficiency or educational qualifications to those who were appointed after a written competitive examination
In the matter of experience too the petitioners are in no way inferior to the contesting respondents
The Court however took care to add Though classification which proceeds merely on the basis that certain persons were 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 instant case that there can be no valid basis or justification for classifying the various officers of the Roads Wing into separate categories
As we have stated earlier 176 the appointments 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 Delhi High Court was driven to hold that they must be deemed to have been appointed to ex cadre posts 
But 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 to which we have already referred
Their precarious tenure was continued from time to time but that will not furnish justification for treating them on the same footing as others whose appointments were made strictly in accordance with the rules and who were appointed to posts borne on the cadre of the Central Engineering Service
A division of these two classes of officers into separate categories will remove possible injustice to those who were appointed to cadre posts in that their promotional opportunities will not be blocked or hindered by ex cadre officers who were recruited on a large scale to meet an urgent necessity
Such a classification will also minimise the injustice which would otherwise have been caused to those who were appointed to ex cadre posts
We have referred without comment to a few earlier decisions of this Court and quoted the observations of learned Judges therein
These decisions and the observations extracted therefrom illustrate and emphasise that there are and there can be no absolutes when we consider claims to justice on complaints of inequality
The Marxian ultimate of a classless society however laudable that may be is evidently not what is sought to be achieved by Articles 14 and 16 of the Constitution
The goal is a limited one
It is equality among comparables
A necessary but not necessarily cynical implication of equality among comparable is the permissibility of reasonable classification having nexus with the object to be achieved
So it was said that if two services started and continued dissimilarly though they apparently discharged similar duties they were not comparable services so as to furnish a basis for the claim to equality State of Punjab vs Joginder Singh supra
But if in the same service there were two sources of recruitment to the same posts a classification based solely on source of recruitment was not permissible Roshan Lal Tandon vs Union of India and Mervyn Coutinda  Ors
vs Collector of Customs Bombay  Ors supra
This was also the principle of the decision in section B Patwardhan  Ors
vs State of Maharashtra  Ors
supra
Even so Chandrachud J Krishna Iyer 177 J and Bhagwati J had to recognise even if reluctantly that even among the members of the same service a classification based otherwise than on mere source of recruitment such as educational qualification was at times permissible
But necessary words of caution against making minute and micro cosmic  classifications were uttered
State of Jammu  Kashmir vs Trilokinath Khosa Supra and Mohammad Shujat Ali  Ors etc
vs Union of India  Ors etc
supra
Chandrachud J however drew the line when among members of the same service a classification was sought to be made between those who had been recruited on the basis of results of a competitive examination and those who had come in by the method of interview
But here again he felt constrained to say that those who were appointed to ex cadre posts outside the rules and whose tenure was therefore precarious could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and to posts borne on the cadre of the service H section Verma  Anr
vs Secretary Ministry of Shipping  Transport  Ors supra
If we now look at the facts of the case before us we find that the service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one
The objects of their recruitment were different as explained earlier the methods of recruitment were dissimilar and the appointing authority was not the same
The training that was imparted was also unlike
The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Service of Engineers class I
These distinctive features marked out the Temporary Assistant Officers as a Class apart from the Indian Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter
Of course once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter
Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers as promised in their letters of appointment
No doubt these officers merited something more than the long wait  at the portals of the Indian Railway Service of Engineers
The Railway Board however appears to have tried to make the long wait  a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers subject to a maximum of five years
We wish to say nothing about the validity of such weightage as we understand it is in question elsewhere
Though we are denying the claim of the petitioners to equality because of the history origin and structure of the Services and the 178 existing legal position in relation thereto we do not wish to be understood as saying that there is any thing doctrinaire  in the principles of equal pay for equal work  and equal status for equal pay and equal work 
They are not goals to be scoffed at
It may be that in the present societal context the goals appear to be distant
But they are goals worthy of attainment and let us hope with no overtones of cynicism that these goals will be achieved in the not too distant future
All the Writ Petitions and applications for the grant of Special Leave are dismissed but without any order as to costs
SR Petitions dismissed


Summary:
Several assignments such as the construction of major bridges new lines doubling of and electrification of existing lines etc
were taken up the Engineering Department of the Indian Railways and to carry out these works a number of temporary posts of Class I Indian Railway Service of Engineers and Class II engineers were created
It was not thought possible to meet additional personnel requirements from existing sources ie direct recruitment to Class I by competitive examination and promotion to class II from class III
Instead under a special scheme the various writ petitioners were appointed at various times between 1955 and 1964 as temporary Assistant Engineers by the Railway Board
Everyone of them was told that the appointment would be on a temporary basis that the post to which they were appointed would be neither in Class I nor in Class II service though they were eligible on completion of three year s service to be considered along with other temporary Assistant Engineers for absorption in Class I Junior Scale against vacancies ear marked from time to time for such absorption in the Indian Railway Service of Engineers cadre upto a maximum of six per year and that in the event of their being selected in Class I Service their seniority would count from the date of the permanent appointment to Class I service
They were required to execute service agreements as applicable to temporary officers
The petitioners accepted the terms offered to them and joined duty in the post to which they were appointed
The petitioners also executed agreements in a standard form known as Agreement for Temporary Assistant Officers of the Indian Railways
140 Though in their orders of appointment as temporary Assistant Engineers the petitioners and others were told that six of them would be absorbed into the Indian Railway Service of Engineers Class I every year the quota was increased to eight per year in 1957 and fifteen per year in 1961
In 1960 the quota was fixed at 60 per cent of the actual intake of probationers from the CES etc
examinations
Again in 1975 the quota was increased to 25 per year
The net result was that all but a 107 temporary Assistant Engineers were left unabsorbed by the time of the filing of the writ petitions and they too were finally absorbed in 1979 by a blanket order
On September 17 1965 the Railway Board decided that the temporary officers so absorbed into the Railway Service of Engineers should be given weightage in seniority on the basis of half the total number of years of continuous service in working posts on Railways prior to their permanent absorption into Class I subject to maximum weightage of five years
 One of the writ petitioners Katyani Dayal field a writ petition in the Allahabad High Court claiming promotion to the Senior scale post of District Officer
He found his claim on Rule 1333c of the Railway Establishment Code on the basis that he was an Assistant Officer within the meaning of that expression as then defined by Rule 1023
The High Court allowed the writ petition and gave a direction to the Railway Administration to consider the claim of the petitioner for appointment in officiating vacancies to the post of District Officer as soon as vacancies arose ignoring the circulars which gave preference to Class I junior scale officers of four years standing or more as against temporary Assistant Engineers
An appeal filed by the Railway Administration under the Letters Patent was dismissed by a Division Bench of the High Court
Though the Division Bench dismissed the appeal on August 1 1974 the Railway Administration did not implement the judgment but instead on December 12 1975 amended the Rule 1023 1333c and f and introduced new rule 10217 so as to expressly exclude temporary Assistant Officers newly defined by Rule 102 7 from the category of Assistant Officers and thus make them ineligible for promotion to the senior scale under Rule 1333c and f
The petitioners therefore have filed these writ petitions in a representative capacity purporting to represent all temporary Assistant Engineers appointed on the recommendation of the Union Public Service Commission claiming that in law they could only be and were appointed to the Indian Railway Service of Engineers Class I right from the beginning and that the Railway Board was wrong in treating them as belonging to neither Class I nor Class II
They claimed that they were appointed to temporary posts in the cadre of Indian Railway Service of Engineers Class I and that their seniority had to be reckoned on the basis of their length of continuous service though they 141 conceded that in any given year those appointed on the basis of the results of the competitive examination might be placed above those appointed on the basis of the selection by the Union Public Service Commission
Dismissing the petitions the Court  HELD 1 articles 53 731a and 309 make it clear that the President acting directly or through officers subordinate to him is free to constitute a service with as many cadres as he chooses to create posts without constituting a service or to create posts outside the cadres of the constituted service
The President or the person directed by him may or again if he so chooses he may not make rules regulating the recruitment and conditions of service of persons appointed to such service or posts
He is also free to make or not to make appointments to such services or posts
Nor is it obligatory for him to make rules of recruitment etc
before a service may be constituted or a post created or filled
But if there is an Act of Parliament or a rule under the proviso to Article 309 on the matter the executive power under Articles 53 and 73 may not be exercised in a manner inconsistent with or contrary to such Act or rule
162D F BN Nagarajan vs State of Mysore 1966 SCR 682  686 State of Kerala vs MK Krishnan Nair and ors
  at 874 referred to
2 The previous existence of the Indian Railway Service of Engineers and the rules made for recruitment to that service do not bar the constitution of another service or the creation of posts outside the cadres of the Indian Railway Service of Engineers
Though to start with there was no Presidential sanction for the creation of the posts of Temporary Assistant Officers in the various departments of Indian Railways which were neither in Class I nor in Class II but merely in gazetted service the matter was soon rectified by the grant of Presidential sanction for the posts in November 1956 and by the President further specifying the Railway Board as the authority competent to make appointment of such temporary Assistant Officers
The posts of Temporary Assistant Officers were thus created and appointments made under valid authority and outside the existing cadres of the Indian Railway Service of Engineers
The letters of indent the advertisements the letters of appointment and the agreements show that the temporary Assistant Officers appointed in this fashion after selection by the Union Public Service Commission were to be a source of recruitment to the Indian Railway Service of Engineers Class I
If Temporary Assistant Officers were to be a source of recruitment to the Indian Railway Service of Engineers Class no temporary Assistant Officer could possibly be under any misapprehension that he was 142 appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service
162G H 163G H 164A The petitioners cannot be considered to have been appointed under rule 130d of the Indian Railway Establishment Code which provides for occasional admission of other qualified persons on the recommendation of the Union Public Service Commission merely because they were selected for appointment by the Union Public Service Commission their scale of pay was the same as that of the Class I Junior Scale Officers of the Indian Railway Service of Engineers and their duties were the same
164A C 3 It is no doubt true that a cadre may consist of permanent vacancies in permanent as well as temporary posts borne on the cadre
But it does not follow that appointments stated to be made to posts outside the very service and therefore necessarily outside the cadre must be considered to be made to temporary posts borne on the cadre merely because the posts were likely to continue indefinitely and did so continue
164 F G The Annual Administrative Reports merely refer to appointments temporary as well as permanent made in the gazetted service by direct recruitment
Gazetted Railway services must include both the Indian Railway Service of Engineers and the Gazetted Railway Service constituted by the temporary Assistant Officers
Therefore by merely taking into account the number of Temporary Assistant Officers for the purpose of calculating the total number of persons appointed to Gazetted Railway Service it cannot conceivably be said that Temporary Assistant Officers were appointed to cadre posts in the Indian Railway Service of Engineers
Even the classified lists of Gazetted officers do not indicate that persons who were appointed as Temporary Assistant Officers were appointed to posts borne on the cadre of Indian Railway Service of Engineers
On the other hand under the column Date of appointment to Class no entry is made against the names of any of the Temporary Assistant Officers who had not yet been absorbed into the Indian Railway Service of Engineers
165 B C D E If posts were initially created and sanctioned the subsequent continuance of the posts indefinitely would not make persons appointed to the posts members of the Railway Service namely the Indian Railway Service of Engineers Class I 165 F G 4 The note below Rule 106 of the Railway Establishment Code merely states an existing fact known to all concerned namely that posts of Temporary Assistant Officers in gazetted railway service who were not to be classified either as Class I or as Class II  had been sanctioned by the President 143 who had designated the Railway Board as the authority competent to make appointments to those posts
With or without the note the Temporary Assistant Officers would still not be classified either as Class I or Class II
Their classification outside Class I and Class II was not dependant on the note but on the Presidential sanction in regard to the creation of the posts
166 A B 5 Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code
The expression Temporary Assistant Officer which was not previously defined in the Railway Establishment Code was sought to be defined by new clause 17 of R102 to mean a Gazetted Railway Servant drawing pay on the scale applicable to junior Scale Officers but not classified either as Class I or as Class II Officers
The expression Assistant Officer was redefined so as not to include a Temporary Assistant Officer who was not classified  either as Class I or as Class II
166 C D The amendments do not have any effect one way or the other on the status of the Temporary Assistant Officers
What was always well known to the Temporary Assistant Officers and the Railway Board and what was the inevitable result of the Presidential sanction for the creation of posts which were not to be classified either as Class I or Class II was made explicit in the Indian Railway Establishment Code also by the introduction of these amendments
This became necessary because in the Writ Petition filed by Katyani Dayal the Allahabad High Court while appearing to hold that Temporary Assistant Officers belonged neither to Class I nor to Class II service held that they came within the then existing definition of Assistant Officer  so as to entitle them for promotion under r 133 of the Indian Railway Establishment Code
166E G The definition of Assistant Officer was not to be read in isolation but should have been read conjunctively with Rules 105 106 and 108
A reference to Rule 105 would show that for the purposes of the rules in the Indian Railway Establishment Code Railway services were to be classified into Class I Class II Class III Class IV and workshop staff
Rule 106 specified the appointments and categories falling under the services mentioned in Rule 105
Rule 108 required the Railway Board to fix the strength of the Railway Services Class I and II
There could therefore be no question of an officer not falling within the class category or cadres specified in rules 105 106 and 108 claiming to be an Assistant Officer  within the meaning of that expression
A person recruited to the post of Temporary Assistant Officer not classified as Class I or Class II Officer could not claim to belong to the Class category or cadre spe 144 cified in Rules 105 106 and 108 and was therefore not an Assistant Officers within the meaning of that expression even before the 1975 amendment
167 D F 6 There are and there can be no absolutes when the Court considers claims to justice on complaints of inequality
The Marxian of a classless society however laudable that may be is evidently not what is sought to be achieved by articles 14 and 16 of the Constitution
The goal is a limited one
It is equality among comparables
A necessary but not necessarily cynical implication of equality among comparables is the permissibility of reasonable classification having nexus with the object to be achieved
If two services started and continued dissimilarly though they apparently discharged similar duties they were not comparable services so as to furnish a basis for the claim to equality
But if in the same service there were two sources of recruitment to the same service a classification based solely on source of recruitment was not permissible
176 E G State of Punjab vs Joginder Singh 1963 Supp
2 SCR 169 191 192 Roshan Lal Tandon vs Union of India  and Mervyn Coutindo  Ors
vs Collector of Customs Bombay and Ors
   referred to
7 Those who were appointed to ex cadre posts outside the rules and whose tenure was therefore precarious could not claim to be treated on the same footing as those who were appointed strictly in accordance with the rules and posts borne on the cadre of the service
177 F G HS Varma  Ors
vs Secretary Ministry of Shipping and Transport  Ors
  427 428 referred to
8 The classification of Temporary Assistant Officers separately from the Indian Railway Service of Engineers Class I is neither discriminatory nor is violative of Articles 14 and 16 of the Constitution for the reason that it had no nexus to the object to be achieved namely efficiency of service
167 G H The service comprising the Temporary Assistant Officers and the Indian Railway Service of Engineers Class I started separately and never became one
The objects of their recruitment were different the methods of recruitment were dissimilar and the appointing authority was not the same
The training that was imparted was also unlike
The very tenure of the Temporary Assistant Officers was precarious and their immediate aspiration was only to be absorbed into the Indian Railway Services of Engineers Class I
These distinctive features marked out the Temporary Assistant Officers as a Class apart from the Indian 145 Railway Service of Engineers Class I and therefore there was no question of entitlement of equal rights with the latter
Of course once they were absorbed into the Indian Railway Service of Engineers they would be entitled not to be treated differently thereafter
Their seniority would ordinarily be reckoned from the date of their absorption into the Indian Railway Service of Engineers as promised in their letters of appointment
No doubt these Officers merited something more than the long wait  at the portals of the Indian Railway Service of Engineers
The Railway Board however appears to have tried to make the long wait a little less tedious by giving them weightage of half of their length of service as Temporary Assistant Officers subject to maximum of five years 177D G Equally important is the fundamental qualitative difference linked with the method of recruitment
True the minimum educational qualification is the same
But those who are recruited directly to the Indian Railway Service of Engineers Class I are subjected to stiff and competative written and personality tests
Only the very best can aspire to come out successful
The Temporary Assistant Officers were not subjected either to a written or to a personality test but were selected on the basis of an interview by the Union Public Service Commission
In addition to the minimum educational qualification three years  experience as a Civil Engineer was also prescribed
Thus while brilliance was the beacon light which beckoned those aspiring to become members of the Indian Railway Service of Engineers Class I it was replaced by experience in the case of those wanting to be Temporary Assistant Officers
Again the appointing authority in the case of Indian Railway Service of Engineers Class I is the President while the appointing authority in the case of Temporary Assistant Officers was the Railway Board no doubt pursuant to the authority given by the President
Different courses of training were prescribed for the Indian Railway Service of Engineers and the Temporary Assistant Officers
For the Indian Railway Service of Engineers the training is an intensive and comprehensive one designed to equip them for higher posts in the Department too while the training for Temporary Assistant Engineers was a brief six months  training intended merely to equip them for carrying out the specific jobs
In the matter of terms and conditions of service while the provisions of the Indian Railway Establishment Code are fully applicable to the Indian Railway Service of Engineers Class I those provisions are applicable to Temporary Assistant Officers  to the extent there is no specific provision in their letter of appointment and agreement
169 C H State of Punjab vs Joginder Singh 1963 Supp
2 SCR 169  191 192 Kishori Mohanlal vs Union of India AIR  Jammu  Kashmir vs Triloki Nath Khosa and Ors   790 792 Roshan Lal Tandon vs Union of India   Mervyn Coutindo and Ors
vs 146 Collector of Customs Bombay and Ors
   Mohammad Sujat Ali and Ors
vs Union of India and Ors
   481 SB Patwardhan and Ors
vs State of Maharashtra and Ors
  A K Subraman vs Union of India 1975 2 SCR 979 and MS Verma and Ors
vs Secty
Ministry of Shipping  Transport and Ors
   427 428 discussed
Observation There is nothing doctrinaire  in the principle of equal pay for equal work and equal status for equal pay and equal work
They are not goals to be scoffed at
It may be that in the present societal context the goals may appear to be distant
But they are goals worthy of attainment and would be achieved in the not too distant future
178 A B