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(iii) Assistant Engineers appointed under clause

(b) read with Rule 23 (part IV) and those appointed under clause (c) read with Rule 24 (part V) were clubbed together and called/treated as promotees with equal quota as between them. It is worth recalling that clause (b) of Rule 3, as it stood before the said Amendment, expressly termed those appointed thereunder as direct recruits.

The matters did not stop there. Purporting to draw inspiration from the observations contained in the penultimate para of the judgment of this court in A.I.R. 1977 S.C. 1474, the Central Government framed a new set of rules called "Central Public Works Department Assistant Engineers (Central Engineering Service and Central Electrical Service) Group B (confirmation and seniority) Rules, 1979. "Though these rules were issued in January, 1979 they were given retrospective effect from 21st May, 1954 i.e., the date on which the 1954 Rules were brought into force. Since the validity of these rules - as amended in 1982 - is the main issue in this writ petition it would be appropriate to notice these Rules. Rule 2 is the definition clause. Clause (a) defines the expression "appointed day" to mean 21st May, 1954. The expression "Service Rules" defined in Clause (b) refer to the 1954 Rules. Sub-rule (2) of Rule 2 says that the words and expressions not defined in this rule shall carry the same meaning as is assigned to them in the service Rules. Rule 3 provides that every member of service whether appointed by direct recruitment, by promotion or by transfer shall be on probation for a period of two years unless the period of probation has already been approved by the Government under Service Rules. Rules 4 and 5 which dealt with confirmation and seniority respectively constituted the central theme of these rules. It is, however, not necessary to set out these Rules inasmuch as they have been totally substituted in 1982. Suffice it to state that Seniority was to be determined with reference to the date of confirmation and the date of confirmation was determined in a particular manner, to be elaborated hereinafter - and not with reference to the date of appointment or date of promotion, as the case may be. Actually, the purport of the Rules remains the same even after amendment. Even so, it would be sufficient if we refer to Rules 4 & 5 as substituted in 1982. But before we refer to 1982 Amendment Rules, which were framed and issued after the filing of the writ petition, it is necessary to refer to a few more facts as also to the pleadings to the parties Giving effect to the 1979 Rules, a fresh provisional seniority list of Assistant Engineers was prepared and communicated to the persons concerned. The revised provisional seniority list is referred hereinafter as 1979 provisional seniority list. It is on receipt of the said seniority list that the four petitioners herein have come forward with the present writ petition. The petitioners submit that the 1979 Rules are arbitrary, unreasonable and discriminatory and that they have been deliberately so framed as to prejudice the seniority position of the promotees. They submit that the 1972 provisional seniority list was correctly prepared in accordance with the decision of the Delhi High Court and that the 1979 Rules have been so designed as to undo the effect of the Judgment of this Court and Delhi High Court. By virtue of the 1979 seniority Rules, the promotees have been relegated to far lower positions in seniority as compared to their position obtaining in 1972 list. The direct recruits on the other hand have gained enormously vis-a-vis the 1972 list. By way of illustration, the petitioners have cited two instances: One is that of Sri R.M. Agrawal who is a direct recruit(temporary) vis-a-vis Shri A.N. Kapoor, a promotee. In the 1972 list their position was 1033 and 207 respectively whereas in the 1979 seniority list their position is 623 and 624 respectively. In other words, whereas a direct recruit (temporary) has come up from 1033 to 623, the promotee has gone down from 207 to 624. Another instance cited is that of Shri G.S. Mittal, direct recruit (temporary) vis-a-vis Shri S. Doraiswamy, promotee. In the 1972 list, their position was 1094 and 236 respectively which has become 691 and 692 respectively in the 1979 list. Inasmuch as this situation has been brought about by virtue of the 1979 Rules, the petitioners' main attach is directed against the said rules, particularly insofar as they provide that seniority of Assistant Engineers shall be determined with reference to and shall depend upon their date of confirmation. The petitioners say that seniority does not and should not be made to depend upon the date of confirmation. The reliefs sought for in the writ petition are (a) to strike down the 1979 rules (b) to quash the 1979 provisional seniority list and

In the counter-affidavit filed by one Shri Jagdish Prasad, Dy. Director (Administration) in the office of Director General (Works), C.P.W.D., New Delhi, it is submitted that though the 1972 provisional seniority list was prepared on the basis of the judgment of the Delhi High Court, the matter was thoroughly re-examined after the decision of this Court in Jagmal Singh and the 1979 Rules were issued after consulting the Law Department and keeping in view all the relevant facts and circumstances of the case. It is submitted that the judgment of this court aforesaid impliedly concedes the existence of a nexus between confirmation and seniority. The Rules are perfectly just and valid. The 1972 seniority list, it is submitted, was also a provisional one and before it could be finalised, the 1979 Rules were promulgated by the President of India, with retrospective effect from 1954, which Rules prescribed the mode of determining the seniority of Assistant Engineers. Accordingly, a new revised seniority list was prepared. It is submitted in para 20 "that the appointees under Rule 3(b) have been selected for appointment by the same Departmental Promotion Committee which have considered the question of promotion of officers as Assistant Engineers under Rule 3(c). By clubbing them together the persons appointed under Rule 3(b) are not at a disadvantageous position. Direct recruits who have come against permanent posts are a distinct group." It is also submitted that "both the temporary appointments under Rule 3(a) and promotees under Rule 3(b) and (c) have been treated alike in the Rules by giving them 1:1 ratio." Another relevant statement made in the counter-affidavit is that "the cadre consists of both permanent and temporary officers." It is submitted that the persons appointed against the permanent posts have a prior claim for confirmation over those appointed against temporary posts.

- the Superme Court had also observed that there was no impediment in the way of the Government to make appropriate rules regarding conditions of service, even retrospectively subject to constitutionality and keeping in view justice and fair play to all concerned.

2. The Central Engineering Service Class II Recruitment Rules and the Central Electrical Engineering Service Class II, Recruitment Rules, do not contain the principles for determinating the seniority of officers appointed to the grade of Assistant Engineers through different methods except Direct Recruitment. No special orders were also issued by Government in the past laying down any such principles. Therefore, the officers appointed to these services are deemed to be governed by the general principles of seniority issued by the Ministry of Home Affairs in their office memorandum No.30/44/48-Apptt. dated the 22nd June, 1949 and No.9/11/55-RPS dated the 22nd December, 1959 respectively, according as to whether they were appointed to the service prior to the 22nd December, 1959 or on or after that date. The present amendment seeks to incorporate these principles, to the extent possible and practicable, in the Central Public Works Department, Assistant Engineers (Central Engineering Service and Central Electrical Engineering (Central Engineering Service and Central Electrical Engineering Service) Group `B' (Confirmation and Seniority) Rules, 1979, since the principles have to be applied for deter-

True it is that in the present case, a formula contained in Rule 5 of 1979 Rules (as amended in 1982) is devised to govern the order of confirmation, but as demonstrated above, this very rule is discriminatory inasmuch as it seeks to treat equals unequally, to the prejudice of what is now compendiously called, the class of "promotees".

For the above reasons, it must be held that Rule 4 of the Central Public Works Department Assistant Engineers (Central Engineering Service and Central Electrical Engineering Service) Group `B' (Confirmation and Seniority) Rules, 1979 (as amended by the Central Public Works Department, Assistant Engineers (Central Engineering Service and Central Electrical Engineering Service) Group `B' (confirmation and Seniority) Amendment Rules, 1982), insofar as it predicates the seniority of Assistant Engineers (appointed on or after December 22, 1959) on the date of their confirmation, is violative of the fundamental rights guaranteed to the petitioners (and other similarly placed Assistant Engineers) by Articles 14 and 16(1) of the Constitution of India and accordingly held to be inoperative and void.