BALESHWAR DASS & ORS. ETC versus STATE OF U. P. & ORS. ETC.

Citation: [1981] 1 S.C.R. 449 · Decided: 19-08-1980 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Case Partly allowed

Cited by 13 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

449 
BALESHW AR DASS & ORS. ETC. 
v. 
STATE OF U. P. & ORS. ETC. 
August 19, 1980 
{V. R. KRISHNA IYER AND R. S. PATHAK, JJ.] 
Service matter-Duly qualified persons appointed as Assistant Engineers in 
temporary posts-Officiating service-Whether could count for seniority-Senio-
rity, how counted-Appointment in a substantive capacity, whether should be 
to a permanent post-Substantive capacity-Meaning of. 
Under rule 3(b) of the U. P. Service of Engineers (Junior and Senior Scales) 
Irrigation Branch Rules a member of the service means a government servant 
appointed in a substantive capacity under the provisions of the rules to a post 
in the cadre of the service. 
Rule 4 empowers the State Goyernment to in-
crease the cadre by creating permanent or temporary posts from time to time 
according to the exigencies. 
Rules 5 and 6 contemplate recruitment (i) by 
direct appointment from amongst engineer students of the Thomson Civil Engi-
neering College, Roorkee, (ii) by direct appointment, (iii) by appointment of 
officers in the temporary service of the United Provinces, Public Works Depart-
ment (Irrigation Branch), (the selection in all these three categories was to be 
after consulting a permanent Board of Selection) and (iv) by promotion of mem-' 
hers of the Subordinate Engineering ·service, who have, in the opinion of the 
Government, shown exceptional merit. 
The proviso to rule 5 states that it 
would not be necessary to consult the Commission in the case of appointment 
of a temporary Officer to a permanent vacancy, if he has already been appointed 
to a temporary post in the cadre of service after consultation with the Commis-
sion. In 1950 recruitment through Thomson College was stopped and in 1961 
direct recruitment was made through the Public Service Commission. 
Rule 6 
empowers the Government to fix quotas for members of the Subordinate Engi-
neering Seryice. 
Rule 17 stipulates a period of probation in regard to all 
candidates who were not in the permanent employment of the Irrigation Branch. 
Rule 19 proYides the mode of confirmation of a probationer in his appointment. 
Rule 23 regulating the inter se seniority of tbe officers states that seniority in 
the service shall be determined according to the date of the order of appoint-
ment to it. 
In 1948 by .combining class I and class II officers into one service the 
Government constituted the U. P. Service of Engineers (Junior and Senior 
Scales) but since the rules regulating their recruitment, conditions and classifica-
1ions could not be made, the Government followed the 1936 Rules which were 
modified from time to time by Government orders. 
The High Court struck 
down the seniority list of engineers prepared by the State Government in 1965 
and gaYe directions to the Government to re-determine the seniority in accord-
. ance with Rules 23 of the Rules. Purporting to act on these directions a fresh 
-seniority _list was drawn up by the Government in May, 1969 but that too 
· was struck down by the High Court. 
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450 
SUPREME COURT REPORTS 
[19811 1 S.C.R. .. 
In appeal to this Court it was contended that it was not correct to say 
that the temporary Assistant Engineers were not members of the service on 
the ground that their appointment was not in a substantive capacity in perma-
nent posts since they had fulfilled all the requirements of the mies for being 
appointed on a regular basis viz. possessing the requisite qualifications, selection 
by the State Service Commission etc. irrespective of whether their appointments. 
were to temporary posts or not, the Jong service they had put in must weigh 
in reckoning the seniority. 
Allowing the appeal in part 
HELD: The G. 0. of December 1961 in so far as it fixes the proportion of 
permanent vacancies to be filled from the various sources had statutory force 
being under mle 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 offi-
ciating service for purposes of seniority. [470 B-q 
While temporary and permanent posts have great relevancy in regard to 
the career of the government servants, keeping 
posts temporary fer Jong, 
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 is arbitrary especiall

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