Case: Baleshwar Dass and Others Etc Vs. State of Uttar Pradesh and Others Etc

touchstone of seniority as that will be indefensible:Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court. It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed. It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.In Chauhans case this Court observed:"Seniority, normally, is measured by length of continuous officiating service-the actual is easily accepted as the legal."39. Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim. Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term. We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post.40. What, in the context, is a substantive capacity vis-a-vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.41. Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time-honoured classification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.42. We take the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.43.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]So, the order of appointment to the Service is decisive of seniority and the service horoscope of each Assistant Engineer has to be cast with reference to his appointmentnext question then, is, when is an engineer appointed to the Service? When, under the Rules, he becomes a member of the Service. For. until he gains entry into the Service he cannot claim to be appointed to it. To hover around with prospects of entry is not the same as actual entry. Therefore, we have to examine when an engineer becomes a member of the Service under the Rules. Clause (b) of Rule 3 defines Member of the Service to mean a government servants appointed in a substantive capacity under the provisions of these rules.. to a post in the cadre Of the Service. What, then, is the cadre of the Service? What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre? Here, r. 1 becomes relevant. Rule 4 prescribes the sanctioned strength of the cadre. It provides that the government may, subject to the provisions of r. 40 of the Civil Services (Classification. Control an d Appeal) Rules, 1930 increase the cadre by creating permanent or temporary posts from time to time as may be found necessary. So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of the Service. The touchstone then, is the substantive capacity of the appointment. Here we get into service jargon with slippery semantics and flavouredvital factors must guide us in this interpretative exercise. If a dated rule of colonial times is to be appliedthat meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialese or literal sense. We have to regard it as a case of new wine in old bottle. We mustthe rules to comport with Arts. 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocabulary of British Indian days. We Stress this aspect because the argument urged is one of unconstitutionality of the Seniority List and of the Rules which deprive many engineers appointed in the normal course and serving for long years arbitrarily and unreasonably of the credit of such service merely because the literal rigour of old Rules requires it. We must strive to salvage the Rules, if need be, by assigning a fresh sense, language permitting, which will fit the Rules into the "fundamental rights " mould. We are thus thrown into the meaning of meanings, released from officially sanctified meanings. In short, while reading the Rules we must remember the Constitution.,Secondly, words themselves are but them skins of thought an d once we get that, the root though which the language of the rules seeks to express, it is possible to interpret the words accordingly. Even so, we cannot run away from the Rules as they are, thoughby time and by tinkeringof the principal groups in this forensic battle is the direct recruits selected by competitive tests by the Public Service Commission. So we must bestow some attention on their genesis and position in the total scheme. We reject the submission that the official Memorandum incorporating these Rules, not being expressed to have been issued in the name of the Governor, is of no legal validity. We cannot bastardize these Rules made and published under Government authority, acted upon f or two decades and recruitments made by the Public Service Commission and universally accepted as binding Rules Regulating Selection for Recruitment of Assistant Engineers (U. P. Service of Engineers class II) in the Various State Engineering Services in Uttar Pradesh. We will set out some parts of these Rules of December 7,may, at this point, crystallise the effect of the Rules read A so far, so that it may serve as a spring board for further discussion. The battle between the parties or groups very much turns on what is the intent and effect of Rules 23, 3, 4, S, 6, 17 and 18 and their impact on r.23 read in the new context of this 1961 Rules. We have to grapple with the crucial question of seniority which, w hen we hark back to r.23, in turn, revolves round the "date of the order of appointment". The effect of probation and confirmation is also another consideration. But r.23 sets out the guideline and the entire endeavour of both sides has been to supply an answer which gives one group a superior position as against another in the competition for seniority which apparently has promotional value when posts of Executive Engineers fall vacantWe must confess that because of the absence of a coherent policy of recruitment and conditions of service and on account of frequent changes through executive instructions, apart from the mystique of officialese, it has become difficult for us to rationalise the rules and decode the principles underlying regular appointments relevant to seniority. Even in court, as the argument proceeded. judges and advocates had to wrestle with the rules to extract a coherent system out of them. The High Court, on both the occasions, w hen challenges were made, quashed the seniority lists and directed fresh lists to be prepared. But in the absence of clear judicial guidelines the exercise by the Executive would lead to further confusion and cavil and that is why we express our dismay at the whole situation where from stage to stage, chaos, not cosmos, has been thecandidates selected on the results of competitive examination and appointed against permanent vacancies shall be placed on probation for a period of 3 years. However, in the case of such directly recruited candidates who have served as Assistant Engineers in a particular department in temporary capacity, continuous period of temporary service rendered as Assistant Engineer immediately before selection for permanent post of Assistant Engineer may be allowed to count towards this period of probation.The candidates will not be required to possess one years practical experience, prescribed in the existing rules for recruitment of Assistant Engineers as aqualification for recruitment of Assistant Engineer in the various departments. The period of practical experience will be covered by the period ofthe probationary period candidates will be required to pass the Departmental Examination prescribed by the various departments. Probationers may be confirmed subject to passing these examinations and their work continuing to beand officiating Assistant Engineers possessing the requisite technical qualifications will be eligible to appear in the competitive examination. The maximum age limit in the case of those working in the department with the approval of the Commission or after having been recruited by the Commission will be 40and the syllabus of the competitive examination will be as shown in Appendix A enclosed with theseis more of this maze of rules and notifications but we desist from bringing t hem on record since they have not much bearing on the ultimate result. We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified. If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights. Not so, if the post is, f or certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtuallyIt is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Courts pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorise and do not admit of any ambiguity and cruelly arbitraryof long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types ofrules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 andthere are to be direct recruits through open competition held by the Public Service Commission. 50% of the posts will go to them although it is stated that the vacancies are to be "in that permanent cadre". Secondly, the subordinate services will get 20% by promotion and thirdly, 30% will belong to the temporary Assistant Engineers recruited through the Public Service Commission in the past. The office Memorandum makes it clear that direct recruitments will be made to "both permanent and temporary vacancies of Assistant Engineers". But this scheme of 1961 cannot stand in isolation and has to be read as subordinate to the 1936 Rules. After all, the 1961 Memorandum cannot override the Rules which are valid under Art. 313, and so must be treated as filling the gaps, not flouting the provisions. So, read, what is the eventualare inclined to proceed on that footing because, after that decision was rendered, Government accepted it and went through the exercise of preparing a fresh seniority list and all the engineers concerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list consequent upon the High Courts decision of 1967. That, by itself, does not give us any conclusive answer to the present question which has been agitated before us. First of all, we must understand the two grievances brought to our notice by the appellant and the writwas nothing more by way of impediment in their appointments being treated as regular. They were Assistant Engineers duly qualified. Their appointments might have been temporary, but temporary posts and temporary appointments are within the Rules. The Public Service Commission has since been consulted and has concurred and Government has accepted it. Every indicium of regular appointment is thus present. There is nothing relied on by the rivals to dislodge the reckoning of service for purposes of seniority from then on except the sole contention that the temporary Assistant Engineers are not members of the Service because their appointment is not in substantive capacity and not a permanentare free to confess that the rules, stricking divergent notes, likecymbals, have vexed us a while. The touchstone of valid interpretation being the Constitution and harmonisation of rules with fundamental rights being the proper path we have tried to sensitize the provisions to do equal justice under the la w refusing to petrify r. 23 or the other relevant rules we have referred to Rule 4 of the 1936 Rules clearly contemplates a cadre, as covering "permanent or temporary posts". So, a cadre takes in temporary posts. Once we cease to be allergic to temporary posts as a component of a cadre we reach the next step that a cadre is, as it were, a layer in the Service. Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanenthave two, perhaps three, types of direct recruits. The first is the vanishing species of Roorkee University engineer students. They were directly appointed but on a temporary footing. Massive appointments were made of otheras Assistant Engineers on a temporary footing to meet the massive developmental requirements. No one can imagine that the guaranteed posts to the brilliant Roorkee boys was temporary only or that the large number of graduates were being lured into employment forengineering requirements on a fleeting footing for a few months. Surely, Government wanted to recruit them on a regular basis but hesitated to appoint them to permanent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time. The Plan was to take these degree holders on a regular lasting basis but to make them permanent after study of the situation. Permanency carries with it other rights than mere seniority and promotion. Permanent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context of the evolving U.P. Service of Engineers thin partition do their bounds divide. The recruitment of even temporary engineers under source (iii) of r. 5 requires consultation with the Public Service Commission. Likewise r. 14 requires for all the three types of direct recruits, temporary included, physical fitness tests.No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service. Before a candidate is finally approved for appointment to the service under the provisions of rules 5(i), 5(ii) or 5(ii i) he shall be required to pass an examination by a Medical Board at his own expenses and shall pay a fee of Rs. 16 for such examination.Probation, tests and confirmation are laid down under rr. 17 to 19 for "all persons appointed to the service". We delve into these details to drive home the propinquity in status of permanent and temporary engineers in the special conspectus of factssee no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity. In Service terminology, perhaps,may be raised when we say so, but then, we must remember that the State itself in its counteraffidavit has construed r. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years). This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officer s are not put on probation unless they are on their way to membership in the Service on completion of probation. That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service. It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc. From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity. The only advantage for permanent appointees, i.e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of officialare not interested in the arithmatics given in the affidavits andregarding the permanent vacancies in the various categories designated as A, B and C. What we focus on is the set of principles which must regulate the service available for computation of seniority. In paragraph 22 of the States counter affidavit the breakup of the vacancies available in the various years to the various categories has been set out. Their accuracy has not been shown to be wrong and we may, perhaps, proceed on the correctness of those figures. It is also made clear by the State that many officers belonging to the class of temporary Assistant Engineers were direct ly recruited before October 1958 and some of them were promoted as temporally Assistant Engineers from the Subordinate Engineers Service. "These officers had been approved for temporary appointment by the Public Service Commission before 1958". Likewise, for the other years, particulars have been furnished. The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up laterdo not consider it right or necessary to fix the senioritythe date of appointment of the various parties, as that is the administrative function of Government. Nor do we think we should interfere with the order of the High Court setting aside the seniority list of 1969. A fresh list has anyway to be prepared but the more meaningful judicial exercise is to lay down the correct principles and guidelines, free from discriminatory infirmities and fairly in keeping with the extant Service Rules. The Rules are, we make it clear, those made in 1936 under the Government of India Act, 1919 and continued by force of Art. 313 of the Constitution. Changes wrought by orders and instructions such as the 196 1 Memorandum cannotoverride the Rulesthemselves but will operate subject to them in case of inconsistency. Even an Administration of Inaction Unlimited must remember that a systematic set of Service Rules is vital not only in fulfillment of its constitutional obligation under the proviso to Art. 309 but also to keep the morale and to promote contentment among the Civil Services by eliminating the inglorious uncertainties about career prospects which cut at the root of planned living. So we hope that, what with two expert committee reports slumbering in the Secretariat cells, Government will frame rules, tuned to the finer notes of Art. 16 and other mandates and in consonance with the realities obtaining in this and sister services, after hearing affected sides as a stroke ofand without beingfor long. We hold that r. 23 is the relevant mariners compass when a question of seniority arises. Deducing therefrom we get the further guideline that the order of appointment in a substantive capacity is the significant starting point for reckoningcapacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed. On the contrary, its meaning must be consistent with Art. 16 and must avoid the pitfalls of arbitrariness and irrational injustice. So viewed, we hold that the appointment need not necessarily be to a permanent post. It is sufficient even if it is to a temporary post of long duration. In a Department which had permanent posts and temporary posts of anature, there is not much to distinguish the quality of service as between the two. Patwardhans case and Chauhans case have primarily or in passing clarified the equal value of officiatingfact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IVmust make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department. In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably. A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head temporary for budgetary or other technical reasons. Those who are appointed and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporaryin the context, is a substantive capacityan appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.Once we understand substantive capacity in the above sense, we may be able to rationalise the situation. If the appointment is t o a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantivewill ascertain from this angle whether the capacity in which posts have been held was substantive or temporary. If it i s not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commissions approval has been obtained and whether probation, medical fitness etc., are complete. Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority. For other purposes they may remain temporary. It may well be that another interpretation may make r. 23 vulnerable. If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under theclassification, c an it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march. Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations andtake the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6. So much so. the various. groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist. We see nothing in the scheme of the Rules contrary to that principle. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.