T.V.R Tatachari, C.J:— This writ petition has been filed by 23 petitioners against five respondents. The respondents are (1) Union of India through the Secretary, Ministry of Irrigation & Power, Government of India; (2) The Chairman, Central Water and Power Commission, New Delhi; (3) Shri I.D Garg, Assistant Director, Canals Directorate, CW & P.C; (4) Shri S. Kingston Samaraj, Assistant Director, Canals Directorate, CW & PC; and (5) Shri Ajoy Swaroop, Assistant Director, Dams III CW & PC.

2. In the years 1963 and 1964, the petitioners were appointed by the President as Assistant Directors/Assistant Executive Engineers (Civil) the Central Water & Power Commission (Water Wing) (hereinafter referred to as the CW & PC) (WW) in an officiating capacity on various dates between 7th September, 1963, and 19th August, 1964, petitioner 23 having been appointed on 19th August, 1964.

3. According to the petitioners, respondents 3 to 5 were similarly appointed by the President as Assistant Directors/Assistant Executive Engineers (Civil) in an officiating capacity on 12th October, 1964, 4th August, 1964, and 10th March, 1965, respectively. The salaries of petitioners and respondents 3 to 5 were fixed in the scale of pay of Rs. 400-400-450-30-600-35-670-EB-35-950. Their terms and conditions of appointment were that the appointment was temporary but likely to continue, that they would be on probation for a period of two years from the date of taking over of the charge of the post, that the appointment would be terminated according to the Central Civil Service (Temporary Service) Rules of 1949, that the appointment carried with it the liability to serve in any part of India and Nepal, and that the other conditions of service would be governed by the relevant rules and orders applicable to the Central Government servants of their grade. All the appointments were made on the recommendations of the Union Public Service Commission (hereinafter referred to as the UPSC). It may be noted that respondents 3 to 5 were all appointed subsequent to the appointment of the petitioners, excepting that respondent 4 was appointed prior to petitioner 25.

4. It is common ground that at the time of the aforesaid appointments there were no statutory rules governing the service of the petitioners. On 15th October, 1965, the President, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India made statutory Rules constituting and governing the Central Water Engineering (Class I) Service. Rule 3(1) provided that there shall be constituted service to be known as the Central Water engineering (Class I) Service consisting of (a) persons deemed to have been appointed substantively or in officiating capacity from the commencement of rules under sub-rule (2), and (b) persons recruited to the service after such commencement under Rule 16. Rule 3(2) provided that:

“all persons holding any of the posts whose appointments to such posts have been made on a regular basis on the recommendations of the Departmental Promotion Committee (Class 1) or the Service Commission shall be deemed to have been appointed substantively or in an officiating capacity, as the case may be, to the service from the commencement of these rules”

5. The case of the petitioners is that as the petitioners and respondents were all appointed on a regular basis after they have been duly selected by the UPSC, they were under Rule 3(2) deemed to have been appointed in an officiating capacity to the service from the commencement of the rules, i.e, 15th October, 1965, and had thus come to be governed by the provisions of the aforesaid rules.

6. On 1st January 1966, a seniority list (Annexure E) was published showing the respective seniority of the petitioners and the respondents 3 to 5. In that list, the petitioners were shown senior to the respondents 3 to 5 and correctly so because under Office Memorandum No. 9/1/55-RPS, dated 22nd December, 1959, from the Ministry of Home Affairs, persons appointed as a result of earlier selection are senior to those appointed as a result of subsequent selection.

7. On 16th June, 1967, a communication was sent by the Under Secretary to the Government to the Chairman, CW & PC (WW) stating that the respondents and petitioners 1, 2, 3, 4 and 7 and certain others, who were appointed to the grade of Assistant Director/Assistant Engineer in the CW & PC (WW) on the recommendations of the UPSC against temporary vacancies on probation for a period of two years with effect from the date their appointment as shown against each in the said letter, had satisfactorily completed the prescribed probationary period with effect from the date indicated against each, and that the President had sanctions the continued appointment of the officers in question in the grade of Assistant Director/Assistant Executive Engineer in the Water Wing of the Central Water and Power Commission beyond the period of their probation.”

8. It is common ground that respondents 3 to 5 were confirmed in their posts on 12th October, 1966, 4th August, 1966, and 10th March, 1967, respectively, that petitioners 1 to 13 and 20 were confirmed on various dates between 4th October, 1967, and 1st November, 1974 and petitioner 15 was confirmed in Scheduled Caste quota, that petitioners 17, 19, 21, 22, 23, 24 and 25 were declared as quasi permanent. It may be noted that the confirmation of respondents 3 to 5 was thus earlier than that of some of the petitioners, while some of the petitioners have only been declared as quasi permanent but were not yet confirmed. Before the respondents 3 to 5 were confirmed, the petitioners on information that some officers junior to them were being considered for confirmation made representations to the Secretary to the Ministry of Irrigation and Power that their interests should be safeguarded by confirming them before their juniors. In May, 1968, also they made a farther representation.

9. On 1st January, 1968, a seniority list (Annexure J) was published. In that list also, the petitioners were shown above respondents 3 to 5. As they did not receive any reply to their representation sent in May, 1968, the petitioners individually sent identical reminders towards the end of May and again in August, 1968. They, however, did not receive any reply. They, therefore, filed the present Writ Petition on 16th November, 1968, contending that the confirmation of respondents 3 to 5 prior to the confirmation of the petitioners was invalid and mala fide, and praying that the confirmation of respondents 3 to 5 be quashed.

10. In opposition to the Writ Petition a counter affidavit of Shri M.S Pathak, Under Secretary of the Government of India, Ministry of Irrigation and Power, was filed on behalf of respondents 1 and 2. It was stated in it that the petitioners were recruited through the UPC for appointment as Assistant Directors/Assistant Executive Engineers in the C.W & PC (WW), but they were appointed on the basis of ad hoc selections and against temporary posts which were likely to continue. It was also stated that while respondents 3 to 5 were appointed as Assistant Directors/Assistant Executive Engineers in the CW & PC (WW) subsequent to all the petitioners and on the dates mentioned in the Writ Petition, they were, however, appointed against permanent posts on the basis of the Combined Engineering Services Examination held by the UPSC in 1963 on the terms and conditions, inter alia that the post is permanent but the appointee would be on probation for a period of two years from the date of appointment which may be extended or curtailed at the discretion of the competent authority, that during the period of probation he would be required to undergo such training and take such departmental examination as Government may prescribe, that failure to complete the period of probation to the satisfaction of the competent authority or to pass the prescribed departmental examination would render him liable to discharge from service or reversion to a lower post or result in stoppage of crossing of efficiency bar in the time scale of pay. It was pointed out that respondents 3 to 5 were thus offered permanent posts and thereby a right had accrued to them for substantive appointment to the said posts on satisfactory completion of the prescribed probationary period, whereas the petitioners were appointed against temporary posts of Assistant Directors/Assistant Executive Engineers on the basis of ad hoc selections through the UPSC on the terms and conditions, inter alia, that the appointment was temporary but likely to continue, and they would be on probation for a period of two years from the date they took charge of the posts. It was also pointed out that both the respondents 3 to 5 and the petitioners were kept on probation for a period of two years, although the former were appointed against permanent posts and the latter were appointed against temporary posts which were likely to continue, because the draft recruitment rules had provided that all officers whether recruited against permanent posts or temporary posts would be kept on probation for a period of two years. It was stated that when the statutory rules were promulgated on 15th October, 1965, the petitioners and respondents 1 to 5 were deem to have been appointed to the service in an officiating capacity or substantively, as the case may be i.e as per the terms and conditions of appointment of the respective officers from the commencement of the rules. It was averred that on satisfactory completion of the probationary period, the officers appointed against permanent posts were confirmed straightway on the recommendations of a duly constituted Departmental Promotion Committee (Class I) headed by a Member of the UPSC, while those appointed against temporary posts were allowed to continue to officiate in a temporary capacity on a long term basis until further orders. It was further stated that the seniority list as on 1st January, 1966, was prepared in accordance with the seniority rules contained in the Ministry's OM No. 1/353/55-Admn. I, dated 11th September, 1959, that respondents Nos. 3 to 5 were shown to be officiating in the grade of Assistant Director/Assistant Executive Engineer/Research Officer (Engineering) as they had not then completed their period of probation of two years and had not been confirmed by that time. It was averred that the confirmation of officers in the Grade of Assistant Director/Assistant Executive Engineer Research Officers (Engineering) was not made on the basis of the Combined Seniority List, but that the officers appointed directly against permanent posts were confirmed after they completed their probationary period of two years irrespective of their position in the Combined Seniority List, while the officers appointed against temporary posts were confirmed in their own turn subject to the availability of permanent vacancies falling within the direct recruitment quota, and similarly officers belonging to Scheduled Castes/Scheduled Tribes were also confirmed according to the number of permanent posts reserved for them.

11. As regards the averments in the Writ petition that certain officers, namely, B.R Chopra, T.K Das, and Kailash Narain, and others who were appointed as Assistant Direct us/Assistant Executive Engineers/Research Officers (Engineering) on a regular basis were confirmed as Assistant Director, it was stated in the counter affidavit that the said officers were all promoted/appointed to the grade of Assistant Director/Assistant Executive Engineer/Research Officer (Engineering) before 21st November, 1960, that prior to the said date, recruitment to the aforesaid grade was made by direct recruitment and departmental promotion in the ratio of 50:50, that all direct recruitment through UPSC was made on temporary basis, that confirmation against permanent vacancies available prior to 21st November, 1960, were accordingly made on the basis of a Combined Seniority List of direct recruits and the departmental officers, and that since the aforesaid officers were appointed or promoted to the grade before 21st November 1960, they were confirmed on the basis of the combined seniority list of officers against vacancies which arose prior to 21st November, 1960.

12. It was submitted that the contention that the petitioners who were appointed against temporary posts, and the respondents, who were appointed against permanent posts, were placed on a complete parity in the matter of promotion and confirmation on the promulgation of the rules provided only that on the successful completion of the period of probation under Rule 8 and subject to the availability of permanent vacancies, an officer appointed to the service shall be eligible to be considered in his turn for confirmation in the service, that keeping in view the specific quota provided for various categories, excluding deputationists, it was evident that the words “in turn” did not mean that confirmation would be in the order in which names of officers appear in the combined seniority list of temporary and permanent officers, but meant that confirmation was to be made according to the quotas fixed for various categories of officers and in accordance with the terms and conditions of the appointment to each category of officers, and that the petitioners could not, therefore, claim preference for confirmation over the respondents 3 to 5 who were officers recruited against permanent posts with specific conditions of service.

13. It was also submitted that the petitioners, if they were eligible, could also compete and might have appeared as well as in the competitive examination held by the UPSC in 1963, and that having failed to apply or having not been selected for inclusion in the merit list declared by the UPSC on the basis of the competitive examination, the officers could not obviously claim any right for earlier confirmation than respondents 3 to 5.

14. It was further submitted that seniority of officers working in the various (Class I) Engineering Posts in the CW & PC (WW) was at the time of the counter affidavit regulated in accordance with the provisions contained in the Ministry's O.M No. F-1/353-55 Adm. I, dated the 11th September, 1959, that under the said existing rules there was at that time no provision by which a permanent officer would become senior to a temporary officer in Class I post in the CW & PC (WW), that although respondents 3 to 5 were appointed substantively to the grade, they still retained their existing positions in the seniority list and would not become senior to the petitioners merely on account of their earlier confirmation, and the had thus not improved their positions in the seniority list in the grade of Assistant Director/Assistant Executive Engineer/Research Officer (Engineering) merely by virtue of their confirmation. It was also submitted that in regard to the service interests of the petitioners vis-a-vis the respondents 3 to 5, the officers, on putting in the prescribed length of service, become eligible for promotion to the next higher grade of Deputy Director/Executive Engineer in the CW & PC, that the said posts of Deputy Directors/Executive Engineers were “non-selection” posts, promotions to which were made on the basis of seniority subject to the rejection of the unfit, and that the petitioners, irrespective of being temporary officers, were still eligible for promotion to the higher grade of Deputy Director/Executive Engineer earlier than the respondents 3 to 5, and their eligibility for such promotion thus remained unaffected.

15. On behalf of respondents 3 to 5, an affidavit of Shri I.D Garg, respondent 3, dated 30th January, 1969, was filed in opposition to the writ Petition, but the same was substituted by another affidavit of Shri I.D Garg, dated 9th September, 1969. The main averments in that affidavit were mostly the same as those in the counter affidavit filed on behalf of respondents 1 and 2. The petitioners filed rejoinders to the affidavits filed on behalf of the respondents, mostly reiterating their averments and contentions in the Writ Petition. They denied that they were appointed on the basis of an ad hoc selection and asserted that they were appointed on a regular basis after selection by the UPSC in an officiating capacity they, however, admitted that the posts against which they were appointed were temporary, but were likely to continue. They submitted that after the promulgation of the statutory rule in 1965 no distinction was made between their rights and those of the respondents 3 to 5, that under Rule 3(2) they and the respondents 3 to 5, were deemed to have been appointed in an officiating; capacity from the commencement of the said rules on 15th October, 1965, and that there was no provision in the rules drawing a distinction between the officers appointed directly before the statutory rules against permanent posts and those who had been recruited on a regular basis through the UPSC against temporary posts for the purposes of confirmation they reiterated that the confirmation of respondents 3 to 5 before the petitioners were confirmed was in violation of the Constitution. They reaffirmed that when they and the respondent 3 to 5 were encadred under Rule 3, both having been recruited by the UPSC, they were put on a complete parity in the matter of promotion and confirmation, and that the plain and ordinary meaning of Rule 9 was that confirmation would be made in turn on the basis of their seniority in the service after they had been encadred. They submitted that they, having satisfactorily completed their probation and having been made quasi permanent, were bound, under the rule, to be considered before the respondents for confirmation as ex facie, respondents 3 to 5 were junior to them. It was also submitted that under the statutory rules every person appointed to the service, on the successful completion of the period of probation under Rule 8 and subject to the availability of permanent vacancies shall be eligible to be considered in his turn for confirmation in the service, and that after the 1965 Rules came into force, they and respondents 3 to 5 were deemed to have been appointed to the service in an officiating capacity in the same grade with identical conditions of service, Rule 3(1)(a) and 3(2) placed them and respondents 3 to 5 on a complete parity, and in terms of Rule 9 they, being earlier appointees, were bound to be considered for confirmation earlier to the respondents 3 to 5.

16. The learned counsel for petitioners formulated the following four contentions:—

(1) On the advent of the Rules on 15th October, 1965, there was a complete metamorphosis and the previous distinction between appointment against a permanent post and appointment against a temporary post vanished, respondents 3 to 5 and the petitioners became alike, and only the length of service governed their inter se seniority.

2. When a person regularly recruited through the UPSC was functioning against a temporary post, the department was not justified in notifying permanent post, and it should have considered the existing temporary appointee before such notification.

3. There were other persons similar to the petitioners appointed against posts which were temporary but likely to continue. They were recruited before respondents 3 to 5, but were not confirmed prior to the initial constitution of the service. They were, however, confirmed subsequent to the initial constitution and before respondents 3 to 5. The petitioners were thus discriminated against; and

4. The appointment of the petitioners was against temporary posts which were likely to become permanent. Under the Home Ministry's Memorandum, dated 16th May, 1969, officers appointed against permanent posts ought to be treated for purposes of confirmation at par with officers appointed purely temporarily. The petitioners should have, therefore, been considered for confirmation when respondents 3 to 5 were considered for confirmation, if not before.

17. The only prayer in the Writ Petition is that the confirmation of respondents 3 to 5 be quashed. As there is no prayer regarding the seniority lists the averments in the Writ Petition regarding the seniority of the petitioners do not fall for consideration, and the learned counsel for the petitioners, therefore, did not address any arguments on the same. All his arguments were as regards the non confirmation of the petitioners before or along with respondents 3 to 5. In support of his arguments, he formulated the four contentions set out above. We shall take up the said contentions seriatim.

18. As stated earlier, both the petitioners and respondents 3 to 5 were appointed by the President as Assistant Director/Assistant Executive Engineers in the CW & PC (WW) in an officiating capacity (vide Annexures A & C prior to 15th October, 1965, when the rules constituting and governing the Central water and Engineering (Class I) Service were made. Their respective appointments were, however, different in two respect. The petitioners, who were already holding Class II and Class III posts in the CW & P.C, were selected by the UPSC on the basis of interviews and not on the basis of any competitive examination, as averred by Shri I.D Garg in paragraph 9 of his counter affidavit, dated 9th September, 1969. In the rejoinder, dated 12th April, 1971, filed on behalf of the petitioners to the said counter affidavit, the deponent, Shri V.M Sharma, merely state 1 that paragraph 9 of the counter affidavit was denied and the averments in paragraph 7 of the Writ Petition were reiterated. There was thus to specific denial of the aforesaid averment by Shri Garg. On the other hand, respondents 3 to 5 were admittedly recruited directly through open competitive examination conducted by the UPSC in September, 1963 The other difference was that admittedly the petitioners were appointed as Assistant Director/Assistant Executive Engineers against temporary posts, while respondents 3 to 5 were appointed against permanent posts. Both of them were placed on probation for two years. Since the petitioners were appointed in an officiating capacity in temporary posts, they could obviously be confirmed on completing the probation satisfactorily, only when permanent posts were available. On the other hand, respondents 3 to 5, who were appointed against permanent posts, could be confirmed, on completion of the probation satisfactory, in the respective permanent posts to which they had already been appointed. This was the position prior to 15th October, 1965.

19. According to the first contention of the learned counsel for the petitioners, the said position changed when the rules were framed constituting the Central Water and Engineering (Class 1) Service with effect from 15th October, 1955. The relevant rules are Rules 3, 5, 7, 8 and

9. It would be convenient if they are set out here:

“3. Constitution of Service—(1) there shall be constituted a service to be known as the Central Water Engineering (Class I) Service consisting of—

(a) persons deemed to have been appointed to the service, substantively or in officiating capacity from the commencement of these rules under sub-rule (2);

(b) persons recruited to the Service after such commencement under Rule 16.

(2) All persons holding any of the posts whose appointments to such, posts have been made on a regular basis on the recommendations of the Departmental Promotion Committee (Class I) or the Service Commission shall be deemed to have been appointed substantively or in officiating capacity, as the case may be, to the Service from the commencement of these rules.

3. Strength and Composition of Service, Scale of pay etc.……….

(1) The designations of the posts included in the service and the Strength, scale of pay and classification of such posts shall be as specified in Schedule I.

(2) The Government, in consultation with the Service Commission, may, by order amend Schedule I from time to time by way of addition of any post thereto or alteration of the strength of any post specified therein and when the said Schedule is so amended, any reference to Schedule I in these rules shall be considered as a reference to such Schedule as so amended.

(3) The pay of officers appointed to the Service shall be fixed in accordance with the orders issued by the Government from time to time”

“7. Cadre—All posts in the Service shall be borne on one cadre.”.

“8. Probation—(1) Every person appointed to the Service after the commencement of these rules (by any of the methods specified in Rule 16) except by deputation or transfer in accordance with Part V of these rules, shall be on probation for a period of two years:

Provided that the Government may, where necessary, extend the said period of two years for a further period not exceeding one year.

(2) If on the expiration of the period of probation referred to in sub-rule (1) or any extension thereof, as the case may be, the Government are of the opinion that a candidate is not fit for permanent appointment or if at any time during such period of probation or extension, they are satisfied that he will not be fit for permanent appointment on the expiration of such period of probation or extension they may discharge or revert him to his substantive post or pass such order as think fit.

(3) During the period of probation, the candidates may be required by the Government to undergo such course of training and instructions and to pass such examinations and tests as if may think fit, as a condition to satisfactory completion of probation.”

“9. Confirmation—(1) Subject to the provisions of rule 31, on the successful completion of the period of probation under Rule 8 subject to the availability of permanent vacancies, an officer appointed to the Service shall be eligible to be considered in his turn for confirmation in the Service.

(2) Till he is confirmed, an officer who holds a lien on a permanent post under the Central Government or any State Government, will continue to officiate in the Service and an officer who holds no lien or any permanent post under the Central Government or any State Government will be governed by the provisions of the Central Civil Service (Temporary Service) Rules, 1965.”

20. Under Rule 3(1), the Central Water Engineering (Class I) Service constituted. It consisted of (a) persons deemed under Rule 3(2) to have been appointed to the Service as mentioned in Rule (1)(a), and (b) persons recruited to the Service after its constitution as mentioned in Rule 2(a)(b). Rule 3 provided, inter alia, that the designations of the posts included in the Service, scale of pay, and classification of such posts shall be as specified in Schedule I to the Rules. Schedule I shows that the number of posts of Assistant Directors/Assistant Executive Engineers and Research Officers (Engineering) in the Service, all classified as “Central Civil Service Class I and Gazetted”, were 205, 45, and 2 respectively. There was nothing in the Rules or the Schedule to show whether the said number of posts included any temporary posts. It has, therefore, to be presumed that the said posts were all permanent posts.

21. In this connection, our attention has been drawn to the words “subject to the availability of permanent vacancies” in Rule 9(1). These words cannot be read as having any reference to the existence of temporary posts in the new Service. Rule 9(1) deals with confirmation. All that Rule 9(1) states is that on the successful completion of the period of probation under Rule 8, an officer appointed to the Service shall be eligible to be considered in his turn of confirmation in the Service, subject to the availability of permanent vacancies. Confirmation in obviously be only against permanent vacancies in permanent posts. There can be temporary vacancies in permanent posts and a person can be appointed temporary in a temporarily vacancy in a permanent post. Rule 8(1) deals with probation and provides that every person appointed to the Service after the commencement of the rules except by deputation or transfer shall be on probation for a period of two years. The words “person appointed” are wide enough to include “person appointed temporarily” in temporary vacancies in permanent posts. Therefore such a person would also be on probation under Rule 8 provided the duration of the temporary vacancy is more than two years. Rule 9(1) seems to contemplate such an appointee in temporary vacancies, and it states that on successful completion of his probation he can be regarded as being eligible to be considered in his turn for confirmation provided a permanent vacancy becomes available. This was obviously intended to make a provision for temporary appointments in temporary vacancies of long duration in permanent posts so that the experience and service of a person, who works satisfactorily for two years or more, may not go waste. In our opinion, the words “subject to the availability of permanent vacancies” in Rule 9(1) are in no way inconsistent with the posts in the Service being only permanent posts.

22. In fact, Mr. Kataria, learned counsel for the respondents, stated before us that the posts mentioned in the Schedule were permanent posts only, and the arguments proceeded on that basis.

23. Rule 3(7) provided that “all persons holding any of the posts whose appointments to such posts have been made on a regular basis on the recommendations of the Departmental Promotion Committee (Class I) or the Service Commission shall be deemed to have been appointed substantively or in officiating capacity, as the case may be, to the Service from ??? of the Rules.” The meaning of this deeming provision is obvious. It was intended to make all persons appointed prior to the commencement of the Rules, by ??? appointees to the new service from the date of the commencement of the Rules. So, the petitioners and the respondents 3 to 5, who had been appointed prior to the commencement of the Rules on the recommendation of the Service Commission were treated as having been appointed in the new Service from the commencement of the Rules. Also, since there were no temporary posts in the new Service, it has to be taken that on their appointment in the new Service with effect from the commencement of the Rules on 15th October, 1965, both the petitioners and respondents were appointed against permanent posts, though the former were, prior to the aforesaid date, appointees against temporary posts. Moreover, Rule 3(2) further provided that such persons were to be “deemed to have been so appointed to the Service substantively or in officiating capacity, as the case may be”. This again obviously means that those who were appointed prior to the commencement of the Rules substantively or in officiating capacity, were deemed to have been appointed to the new Service from the commencement of the Rules in the same capacity, i.e, substantively, or in officiating capacity, as the case may be. So, it is clear that the petitioners and respondents 3 to 5 who were all admittedly appointed original in an officiating capacity, were treated as having been appointed in the new Service in officiating capacity from the date of commencement it of the Rules against permanent posts. This was the change or ??? is according to the first contention of the learned counsel for the petitioners, and it has to be accepted as correct.

24. We may mention here that Rule 3(2) referred to persons holding any of the posts included in Schedule I whose appointments to such posts had been made “on a regular basis.” An argument was sought to be advanced on behalf of the respondents that while respondents had been appointed prior to the commencement of the Rules on a tegular basis, the petitioners had not been appointed on a regular basis, as they were appointed against only temporary posts and, therefore, the petitioners did not fall within the category of officers mentioned in Section 3(2). We are unable to accept the argument for two reasons. Firstly, it is the case of the respondents that the petitioners have not been taken or appointed in the new Service. Section 3(2) is the only provision under which the petitioners could be taken into the new Service. It follows, therefore, that the respondents treated the petitioners as covered by the provision in Section 3(2), and cannot, therefore, contend to the contrary.

25. Secondly, the expression “on a regular basis” was not defined in the Rules of 1965. As stated earlier, prior to 15th October, 1965, there was no statutory Rules Governing the appointments of the petitioners and respondents 3 to 5. So there was no definition of the expression “on a regular basis” even at the time of the original appointments of the petitioners and respondents 3 to 5. In the absence of a definition, the expression has to be understood according to its ordinary connotation in the context of appointments against posts in a service. In that context, it is ordinarily used as referring to any appointment made in a vacancy, whether in a permanent post or in a temporary post, which has arisen on the existing incumbent vacating the post for good as distinguished from a vacancy which has arisen in the existing incumbent vacating the post temporarily on leave, deputation, or the like. In other words, the expression is used when to other person has a claim to that vacancy, and it is available to him either immediately or on his fulfilling some requirements like satisfactory completion of probation or passing some departmental tests. It is not used when the vacancy is only temporary consequent upon the existing incumbent going on leave or deputation, or the like. In that case, the existing incumbent has a then or claim to the post and the appointment of another is only by way of an ad hoc or “stop gap” arrangement for the duration of the leave or deputation. It would in fact be most inappropriate say that such an appointee has been appointed on a regular basis for the duration of the leave or deputation.

26. In this connection, it is necessary to remember that a post may be a permanent post or a temporary post. In a permanent post, there can be a permanent vacancy as it happens when the existing incumbent vacates the post for good, or a temporary vacancy as it happens when the existing incumbent vacates the pose temporarily on leave or on deputation, or the like. Similarly, in a temporary post also, there an be vacancy which arises on me existing incumbent vacating it for good (it would be inappropriate to call it a “permanent” vacancy, as me post itself is a temporary post and not a permanent post) or a temporary vacancy which arises on the existing incumbent vacating the post only temporarily on leave, deputation, or the like. There is thus a clear distinction between a temporary post and a temporary vacancy, and this has to be borne in mind in the context of the question under consideration. That being so, the expression “appointment on a regular basis” can be appropriately used only when the vacancy is permanent as it happens when the existing incumbent vacates the post for good, and not when the vacancy is temporary as it happens When the existing incumbent vacates the post temporarily on leave, deputation, or the like. Thus, it is the nature of the vacancy and not the nature of the post that indicates whether it is an “appointment on regular basis” or not. In other words, there can be appointment on regular basis against permanent posts as well as against temporary posts. But, the vacancies must be those caused by the existing incumbents vacating the posts for good and not temporarily on leave, deputation, or the like.

27. In the present case, the petitioners were admittedly appointed originally against temporary pasts. It is not the case of the respondents in their counter affidavits that the petitioners were appointed in temporary vacancies i.e, vacancies arising of the then existing incumbents going temporarily on leave, deputation, or like. Therefore, it cannot be said that the petitioners are not originally appointed on a regular basis merely because they were appointed against temporary posts, and the arguments of the learned counsel for the respondents that the petitioners were not appointed on a regular basis because they were appointed against temporary posts, cannot be accepted.

28. Thus, in the view taken by us on the first contention that the petitioners and respondents 3 to 5 were all appointed in an officiating capacity against permanent posts in the new Service with effect from 15th October, 1965 it would follow, and it has to be held, that no distinction could be made between the rights of the petitioners to be considered for confirmation and those of the respondents 3 to 5 after the promulgation of statutory rules in 1965. As stated earlier, the entire basis for the confirmation of respondents 3 to 5 before the petitioners, as set out in the counter affidavit filed on behalf of respondents 1 and 2, was that the respondents 3 to 5 were originally appointed against permanent posts, while the petitioners were originally appointed against temporary posts. The said basis ignores the change that has taken place on the promulgation of the rules in 1905 as pointed out by us above. In view of that change, namely, that the petitioners as well as respondents 3 to 5 were all treated under the said rules as having been appointed in officiating capacity against permanent posts in the new Service from and alter 15th October, 1965, the basis on which respondents 3 to 5 were conhrmed before the petitioners was not available. Therefore, the said confirmation of respondents 3 to 5 on the said basis without considering the confirmation of the petitioners also was discriminatory and liable to be quashed. As stated earlier, the question of inter se seniority of the petitioners and respondents 3 to 5 is not before us. We are, therefore, not deciding the claim of the petitioners that they are seniors to respondents 3 to 5 are consequently entitled to be confirmed even before respondents 3 to 5 are confirmed. We hold only that the confirmation of respondents 3 to Son the basis mentioned in the counter affidavit, is liable to be quashed, and that the petitioners are entitled at least to be considered for confirmation along with respondents 3 to 5, provided of course they are not otherwise ineligible for such consideration, however, even though the confirmation of respondents 3 to 5 is liable to be quashed, as stated above, we consider such quashing would be unfair and unjust to respondents 3 to 5. They were appointed even prior to 15th October, 1965, against permanent posts. They completed their probation satisfactorily and were, therefore, entitled to be considered for confirmation on such completion of their probation. There was nothing against them to make them ineligible for such consideration. They were accordingly considered and confirmed. They were in no way responsible for the omission by the respondents 1 and 2 to consider the confirmation of the petitioners. It would, therefore, be unjust and unfair to penalise them for the omission by the respondents 1 and 2. It is well established that certiorari is a discretionary relief. In our opinion, for the reasons mentioned above, the present case is one in which we should exercise our discretion in favour of respondent 3 to 5 and decline to quash their confirmation. We accordingly decline to quash the confirmation of respondents 3 to 5.

29. At the same time, in view of our conclusion on the first contention that the petitioners were deemed to have been appointed in an officiating capacity against permanent posts in the new Service with effect from 15th October, 1965, they were entitled to be considered for confirmation on completion of their probation satisfactorily, provided they were not otherwise ineligible for such consideration and confirmation. We, therefore, direct respondents 1 and 2 to consider the cases of the petitioners and confirm them from the dates on which they have completed their probation satisfactorily, provided of course they are not otherwise ineligible for such consideration and confirmation.

30. The second contention formulated by the learned counsel for the petitioners was that when a person regularly recruited through the UPSC was functioning against a temporary post the department was not justified in notifying a permanent post and it should have considered the existing temporary appointee before such notification. This contention has to fail for two reasons. The first reason is that it does not arise in the view taken by us that the petitioners were taken and appointed in the new Service against permanent posts with effect from 15th October, 1965. The second reason is that the contention is based on the decision of V.D Misra, J. in S.C Anand v. Union of India, 1973 (1) S.L.R 979, and the aforesaid proposition contained in the decision of V.D Misra, J. was not, on appeal, accepted by a Division Bench of this Court in Letters Patent Appeals Nos. 253, 283 and 288 of 1972, decided on 26th August, 1977. There is thus no substance in the said contention.

31. The third contention was that certain other persons who, like the petitioners, were appointed against posts which were temporary but likely to continue, were confirmed subsequent to the promulgation of the rules of 1965, and the petitioners were, therefore, discriminated against. This contention was based on the averments in paragraphs 18 and 19 of the Writ Petition. In reply to the said averments, it was stated in the counter affidavit filed on behalf of respondents 1 and 2 that the said persons were all appointed/promoted to the grade of Assistant Director Assistant/Executive Engineer/Research Officer (Engineering) before 21st November, 1960, that prior to the said date recruitment to the said grade was made by direct recruitment and departmental promotion in the ratio of 50:50, that all direct recruitment through the UPSC was made on temporary basis, that confirmations against permanent vacancies available prior to 21st November, 1960, were accordingly made on the basis of the combined seniority list of direct recruits and the departmental Officers, and that since the persons in question were all appointed or promoted before 21st November, 1960, they have been confirmed on the basis of the combined seniority list of officers in the grade against the vacates which arose prior to 21st November, 1960. The said explanation in the counter affidavit is, in our opinion, a complete answer to the third contention.

32. The fourth contention, though formulated earlier, was not pressed by the learned counsel at the time of the arguments. In the result, the petitioners are declared to have been entitled to be considered for confirmation on their completing their probation satisfactorily, and the respondents 1 and 2 are directed to consider the cases of the petitioners and confirm them from the dates on which they have completed their probation satisfactorily, provided they are not otherwise ineligible for such consideration and confirmation.

33. In the circumstances of the case, we direct the parties to bear their own costs.

34. Petition allowed.