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10. 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 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 130(d) 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.

15. 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.

22. 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 Arts. 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 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.

24. 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 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 posts 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 rules.