LexP.D. AGGARWAL & ORS. versus STATE OF U.P. & ORS.
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P.O. AGGARWAL & ORS. v. STATE OF U.P. & ORS. JUNE 8, 1987 [A.P. SEN AND B.C. RAY, JJ.] Constitution of India-Arts. 14 and 16-Va/idity ofrr. 3(c), 5, 6 )- and 23 of the U.P. Service of Engineers (Buildings and Roads Branch), 1936 as amended by the Amendment Rules of 1969 and 1971-Assistant A B .,., Engineers substantively appointed to temporary posts prior to the amendment of the Rules are entitled to have their seniority reckoned C from the date of their appointment irrespective of the posts, held by them remaining temporary-Rights vested in them under the 1936 Rules cannot be taken away by giving retrospective effect to the Amendment \.- Rules of 1969 and 197 I. Rule 3(c) of the U.P. Service of En&ineers (Buildings and Roads D Branch) Class II Rules, 1936 def"med 'direct recruitment' or 'direct appointment' as recruitment or appointment of Assistant Engineers in the manner prescribed in r. S(i), (ii) and (iii) thereof, after consulta- tion with the Public Service Commission. Rule 6 empowered the Government to decide in each case the source from which a vacancy shall be filled up provided that 25% of the vacancies were reserved for E promotion of persons selected from subordinate service<;. Rule 3(b) thereof defined a 'member of the service' as a government servant appointed in a substantive capacity. Rule 23 stipulated that seniority in the service shall be determined by the date of order of appointment to the service. By an Office Memorandum dated December 7, 1961, the State Government laid down that direct recruitment to the posts of Assistant Engineers would be made on the results of a competitive examination conducted by the Commission, the successful candidates being appoin- F ted in the order of merit against vacant permanent posts and, those following, against temporary posts. It was further laid down that while G 50% of the permanent vacancies in the Department wonld be filled by ~ direct recruitment, 25% of them would be filled by selection from amongst the temporary Assistant Engineers recruited through .the Commission and for this purpose the temporary Assistant Engineers already working in the Department who were appointed on the advice of the Commission prior to the introduction of the new scheme and who H 427 ~ ~ 428 SUPREME COURT REPORTS [1987) 3.S.C.R. A possessed the requisite qualifications were given relaxation in the age- )..,. limit upto 40 years for appearing in the competitive examinations to be conducted by the Commission. As a measure of further concession to the existing temporary Assistant Engineers, it was provided that ini- tially 50% of the permanent vacancies would be filled up by selectfo,n of temporary Assistant Engineers and only 25% thereof would be filled up B by direct recruitment. The competitive examinations were held com· mencing from the year 1962. ), c On July 28, 1969, the State Government brought into force the U .P. Service of Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, 1969 with retrospective effect from March, 1962 amending inter alia rr_. 3(b), 3(c), S and 6 of the 1936 Rules to bring them in line with the scheme enunciated in the Office Memorandum dated December 7, 1961. On November 26, 1971, r. 23 was amended by the U.P. Service of Engineers (Buildings and Roads Branch) Class II (Amendment) Rules, D 1971 as under: "Except as provided for hereunder seniority in the service will lie determined by the date of order of appointment in a substantive vacancy .... '' y I - E The competitive examinations for direct recruitment of Assistant • Engineers in accordance with the new Scheme were held upto the year ,,j -- 1971 and were discontinued by the executive instruction contained in • F G Office Memorandum dated June 23, 1972 as it was felt that the system had done more harm than good to the service. The respondents, who were directly recruited Assistant Engineers appointed, after consultation with the Commission, to temporary posts in the cadre upto 1961 challenged the seniority list prepared in 1980 in terms of the Office Memorandum dated December 7, 1961 and the Amendment Rules, 1969 and 1971 as violative of Arts. 14 and 16 of the Constitution and prayed for determination of their seniority on the basis of the length of their continuous service in terms of the decision of , this Court in Baleshwar Dass & Ors. v. State of U.P. & Ors., [1981) 1 \ S.C.R. 449. The H
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