Case: Katyani Dayal and Others Vs. Union of India and Others

3. 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 all4. 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 an d construction of the multitude of the proposed development works. It was not thought possible to 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 o f 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, this being the Junior Scale of pay of Indian Railway Service of Engineers Class I. It was 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.0 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 made5. Pursuant to the requisition by the Rail way 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 yea r and might be considered for promotion to senior grade posts in the scale of Rs.0 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"6. 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 and 1964  were offered appointments as Temporary Assistant Engineers by the Railway Boa rd. Everyone of them was told that the appointment would be on a temporary basis in the scale of Rs.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 vacanciesearmarkedfrom time to tim e 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. 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 final11. 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 Com mission 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. 133(3) (c) on the basis that he was an Assistant Officer within the meaning of that expression as then defined by r. 102(3). 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 t he 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. 133(3)(c). The Railway Boards contention wasd 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 102(3), 133(3)(c) and (f) an d introduced new rule 102(17) so as to expressly exclude temporary Assistant Officer [newly defined by r. 102(7) from the category of Assistant Officer and thus make him ineligible for promotion to the senior scale under r. 133 (3)(c) and (f)].

Reasoning:
17. 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 Art. 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. v. State of Mysore &Ors., State of Kerala v. M. K. Krishan Nair &Ors., etc. etc.17a. 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 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 Ass istant Officers. This is apparent from the letter No.. A) dated November 22, 1956 and letter No. 5. A dated December 12, 1956 to which we have referred in paragraph 8 supraIf 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 any misapprehension that he was appointed to the Indian Railway Service of Engineers Class I or could claim that he was appointed to such service19. It is not possible to accept the submission that they must be considered to have been appointed under r. 130(d) o f 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 IWe do not think that there is any substance in these submissions. It is no doubt true that a ca dre 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 mentioned "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 t he 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 IThe note was neither declaratory nor explanatory an d was of no affect whatever. We think that the argument regarding the status and the effect of the note is of no real 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 postsWhat 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 ha s 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 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 amendmentThere was so much identity on all vital and important matters that the classification of Temporary Assistant Officers outside the Indian Rail way 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 b y us and we have shown how Temporary Assistant Officers are not Assistant Officers within the meaning of that expression in the Indian Railway Establishment Code24. 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 ex tent 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 109(2)(c) 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 post s including the general Administrative posts are required to be taken into account. On the 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 rulesTrue, 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 De partment 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 agreementThe 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 at 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 elsewhere33. Though we are denying the claim of the petitioners to equality because of the history, origin, and structure of the Services and the 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.