M. P. THAKKAR, J. ( 1 ) TWO groups of Junior Engineers are locked in a dispute pertaining to the validity of a rule of seniority (sought to be introduced years after their entry into the concerned cadre through the same door of selection) whereby seniority is sought to be governed otherwise that with reference to their birth in the cadre. Those recruits who prior to their selection happened to be working on certain Government Projects under the work charged Section (employees whereof are not in regular Govt. service) even if recruited later than others are sought to be treated as senior by giving credit for the preselection service rendered in the workcharged section. The dispute is of vital significance for each group having regard to the fact that their prospects of promotion are directly linked with the rule of seniority which may ultimately emerge. Interpreted one way hundreds of Junior Engineers previously belonging to work charged section of the Public Works Department stand to benefit visa-vis hundreds of their counter-parts who were recruited by the same selection process but who were not employed in the work charged section prior to their recruitment. ( 2 ) FIVE Junior Engineers belonging to the temporary establishment in the Subordinate Service of Engineers of Public Works Department have instituted the present petition in order to challenge a Govt. Resolution dated August 1 1978 as per Annexure I whereby administrative instructions have been issued in regard to the fixation of the seniority in the temporary establishment. If these instructions hold the field those direct recruits who were previously employed in the work charged section before their recruitment to the temporary establishment would steal a march visa vis other direct recruits on the establishment having regard to the fact that the past service rendered by the former in the work charged section before they were selected and recruited on the temporary establishment would count for seniority. An illustration would make the point clear. Take the case of a direct recruit selected by the Selection Committee and recruited on the temporary establishment in 1968. An illustration would make the point clear. Take the case of a direct recruit selected by the Selection Committee and recruited on the temporary establishment in 1968. If in 1971 i. e. three years after his recruitment a Junior Engineer who was previously working in the work charged establishment got selected and was recruited as a direct recruit to the tempopary establishment he would be entitled to claim seniority visa-vis the direct recruit of 1968 by reason of the fact that his service say for five years in the work charged section before his recruitment on the temporary establishment would count in determining the inter se seniority between the two. The 1968 recruit would of course not get credit for preselection service (if any) rendered by him in a public undertaking or in the private sector whatever be the length of service so rendered by him and whatever be the nature of experience gathered by him. That is why the petitioners have challenged the legality and validity of the impugned resolution as per Annexure 1 by way of the persent petition under Art. 226 of the Constitution of India. ( 3 ) A reference to Bombay Public Works Department Manual Third Edition-1956 would show that the Subordinate Service of Engineers (S. S. E.) in the then State of Bombay prior to its bifurcation was constituted with effect from November 1 1925 (see paragraphs 14 and 15 ). The pattern of the service which emerges is as under :- s. S. E. -- regular service. Irregular service ( Workcharged section ) - temporary establishment Permanent establishment. (direct recruitment from open market including workcharged employees ). The temporary establishment was a regular establishment created in order to meet the demand for extra supervision which may arise from time to time as well as to ensure that the Public Works establishments shall be capable of contraction as well as of expansion as demanded by the occasion and in order to ensure that permanent establishments may be supplemented by temporary establishments to such extent as may be necessary (see paragraph 88 ). Those in the temporary establishment were en titled to be confirmed in due course whereupon they would belong to the permanent establishment. Those in the temporary establishment were en titled to be confirmed in due course whereupon they would belong to the permanent establishment. The workcharged establishment as revealed by Paragraph 89 of the Manual was brought into existence in order to meet the requirements of a specific work or of sub-works of a specific project. It was contemplated by the Manual that employees borne on the permanent establishment as also on the temporary establishment could be appointed on specific works or sub-works of specific projects of a workcharged establishment but that in that case their pay etc. would be charged direct to the work. The relevant paragraphs of the Manual require to be quoted for a proper understanding of the nature of their employment :-"88 (I) In order to meet the demand for extra supervision which may arise from time to time as well as to ensure that the Public Works establishments shall be capable of contraction as well as of expansion at the expenditure on works diminishes or increases the permanent establishments may be supplemented by temporary establishments to such extent as may be necessary and varying in strength from time to time according to the nature of the work to be done. Temporary establishment will include all such nonpermanent establishment no matter under what titles employed as is entertained for the general purposes of a Division or Sub-division or for the purpose of the general supervision as distinct from the actual execution of a work or works. (II) If members of temporary establishment are engaged for a specific work their engagement lasts only for the period during which the work lasts. If dismissed otherwise than for serious misconduct before the completion of the work for which they were engaged they will be entitled to a months notice or a months pay in lieu of notice; but otherwise with or without notice their engagement terminates when the work ends. If they desire to resign their appointments they will be required to give a months notice of their intention to do so or forfeit a months pay in lieu of such notice. These conditions as well as those regarding leave allowances and pension mentioned in (iv) below should be clearly explained to the men employed and a written declaration obtained from them that the terms have been clearly understood by me. These conditions as well as those regarding leave allowances and pension mentioned in (iv) below should be clearly explained to the men employed and a written declaration obtained from them that the terms have been clearly understood by me. xx xx xx xx89 Works establishment will include such establishment as is employed upon the actual execution as distinct from the general supervision of a specific work or of sub-works of a specific project or upon the subordinate supervision of the departmental labour stores and machinery in connection with a such work or sub-works. When employees borne on the permanent or temporary establishments are employed on work of this nature their pay etc. should for the time being be charged direct to the work; the pay etc. of their substitutes on the regular establishment being charged to the minor head Establishment". x x x x x xwhile the employees borne on the temporary and the permanent establishments could be brought on the work-charged establishments in connection with specific works or sub-works of specific projects which might be under construction the employees belonging to the work-charged establishment could not be transferred or absorbed without anything more in either the temporary establishment or the permanent establishment. This is evident because to belong to the temporary establishment one had got to be selected by the competent authority. Moreover only one who belonged to the temporary establishment could be confirmed in the permanent establishment. And no one other than one who was on the temporary or permanent establishment could be promoted to Class II Engineering Service. Those who were borne on the work-charged establishment could not be directly confirmed in the permanent establishment. This position is not disputed. So also a statement was made by the learned Assistant Govt. Pleader after obtaining instructions that so far there was not one single instance of one who was borne on work-charged establishment being promoted to Class II Service. It is also not in dispute that it was more advantageous to be on the temporary establishment than to be on the work-charged establishment. The employment on the workcharged establishment would come to an end as soon as the work in progress or project undertaken by the department was completed. It is also not in dispute that it was more advantageous to be on the temporary establishment than to be on the work-charged establishment. The employment on the workcharged establishment would come to an end as soon as the work in progress or project undertaken by the department was completed. Those who were borne on the temporary establishments on the other hand were better placed in the sense that their services could be terminated only on giving three months notice as per Note 2 appended to Paragraph 88 of the Gujarat Public Works Department Manual 1966 Edition volume I. Thus it is distinctly advantageous to an employee to be on the temporary establishment. It is also evident that an employee borne on the work-charged establishment could not be transferred to the temporary or the permanent establishment. For obvious reason that those who were employed on the work-charged establishment were employed only for the limited purpose of carrying out a particular construction or a project. The recruitment to the work-charged establishment was made by the Superintending Engineer till 1966. On the temporary establishment also the recruitment was made by the Superintending Engineer. However these two establishments were distinct and separate in the sense that one who was on the work-charged establishment would not be entitled to be taken on the temporary establishment ipso facto or as soon as he applied. Whenever he applied he would have to be selected by the Superintending Engineer for being recruited on the temporary establishment. It appears that since 1966 a Selection Committee has been formed for making recruitment on the temporary establishment. The resultant position is that after 1966 only those who are selected by the Selection Committee would find a berth on the temporary establishment. The applicant might be a direct recruit from open market or he might be one who is borne on the work-charged establishment. In either case he would find a berth on the temporary establishment only if he was selected by the Selection Committee. The applicant might be a direct recruit from open market or he might be one who is borne on the work-charged establishment. In either case he would find a berth on the temporary establishment only if he was selected by the Selection Committee. It is in the context of these facts that the dispute giving rise to the present petition has arisen because even though the direct recruits from the open market on one hand and the employees borne on the work charged establishment on the other have to pass the same test posed by the same Selection Committee and have to enter through the same door on the establishment the inter se seniority between them is sought to be governed otherwise than by the date of the recruitment on the temporary establishment. A direct employee recruited earlier would become junior to an employee recruited later in case the latter had a term of service at his credit on the workcharged establishment which when added to his term in the temporary establishment was longer. In other words the rule sought to be applied is one which gives an advantage to or confers a privilege on those who were on the work-charged establishment prior to their recruitment. Even if a direct recruit was working in some Corporation or private industry before his recruitment the service experience gathered by him prior to his selection would not be taken into account and would be disregarded whereas in the case of a work-charged employee it would be taken into account and he would be given credit for the service rendered by him in the work-charged establishment. Thus an anomalous situation arises and an employee directly recruited on temporary establishment much earlier would become junior to a subsequent recruit having a preselection service at his credit in the work-charged establishment. This would result in a fluctuating seniority which would always remain in a flux. It would be so for even from amongst the employees recruited from the work-charged establishment those who had a shorter term of service might get selected earlier. They would be entitled to seniority visa-vis those who were recruited earlier having regard to their length of service in the work-charged establishment. It would be so for even from amongst the employees recruited from the work-charged establishment those who had a shorter term of service might get selected earlier. They would be entitled to seniority visa-vis those who were recruited earlier having regard to their length of service in the work-charged establishment. According to the petitioners in order to obviate such a situation the correct rule of seniority was to determine seniority depending on the date of entry in the temporary establishment as was being done prior to the issuance of the impugned Government Resolution vas per Annexure I dated August 1 1978 The said resolution which is under challenge in so far as material requires to be reproduced for the purpose of a proper understanding of the implications of the rule embodied therein:- (Emphasis added ). IT may be mentioned that though in paragraph 2 of the aforesaid resolution it has been stated that the benefit of preselection service in the workcharged department would be extended in fit casesthe rule is sought to be applied as a matter of course. It may also be realised that the rule of seniority as embodied in an earlier resolution dated November 17 1977 (annexure H) has been reversed and a new rule altogether inconsistent with the rule embodied in Annexure H has been introduced by the impugned resolution as Annexure I. It would therefore be appropriate at this juncture to have a glance at the rule embodied in Annexure H. The said resolution is in the following terms:-Government of Gujarat public Works Department circular No. STS-1473 (22)-E-5 sachivalaya Gandhinagar. Dated the 17th November 1977 c I R C U L A R para-92 (Y) of Gujarat Public Works Department Manual Volume. It provides as under :-"92 As regards promotion and seniority since service on workcharged establishment when continuous has been allowed to count for increments it automatically follows that temporary and workcharged service when continuous will be treated as continuous for purposes of seniority since seniority is based on pay promotion if any will accordingly be effected on the basis of this seniority. UNDER the Government of Bombay P. W. D. Resolution No. CEN-1059-B (111) dated 26-4-60 orders have been issued specifically laying down that for the purposes of fixing the seniority of Overseers (now Junior Enginees/supervisors/overseers) the old practice of fixing the seniority on the temporary establishment on the basis of pay and ordering confirmation according to that seniority should be abandoned and the seniority should be fixed according to the date of their joining as Overseer without distinction between graduates diploma holders and nonqualified persons. Accordingly the seniority has to be fixed on the basis of continuous length of service rendered on temporary establishment and not on the basis of pay. Consequently the service rendered on work charged establishment prior to appointment on temporary establishment cannot be considered for the purpose of seniority. In the light of this position the provisions contained in Para 92 (Y) of P. W. D. Manual Volume-I are rendered obsolete and was required to be deleted immediately after 26-4-60. However the same remained in the Manual through oversight. Government is now pleased to direct that para 92 (Y) referred to above should be deleted from the Public Works Department Manual Volume I. ( Emphasis added )"what is of importance is to realise that it has in terms been provlded that the service rendered on work-charged establishment prior to appointment on temporary establishment cannot be considered for purpose of seniority. Before proceeding further it is also necessary to advert to one another circumstance. In 1973 respondent No. 2. K. K. Patel and others belonging to work-charged section had instituted Special Civil Application No. 162/73. Seniority was sought to be fixed on the basis of the date of appointment on the temporary establishment without taking into consideration the preselection service rendered by those recruits who were previously borne on the work-charged establishment. The State Government had therein filed an affidavit-in-reply opposing the said petition. The said affidavit sworn by Shri C. M. Parikh Under Secretary to the Govt. of Gujarat on 27th August 1973 is at Annexure G on record. The State Government had therein filed an affidavit-in-reply opposing the said petition. The said affidavit sworn by Shri C. M. Parikh Under Secretary to the Govt. of Gujarat on 27th August 1973 is at Annexure G on record. The stand taken in paragraph 11 and 12 of the affidavit-in-reply was as under :-"11 With reference to paragraph 10 and 11 of the petition I submit that the comparison of the persons who are appointed on workcharged establishment and persons who are appointed on a temporary establishment is wrong because work charged posts are posts whose pay is directly debited to the work and workcharged staff are those employed on such posts without having any position on a regular establishment. The workcharged establishment is discontinued when works on which they are employed are temporarily stopped or suspended and the persons would be reemployed as soon as the work is resumed. Thus the workcharged establishment is quite distinct from temporary establishment. The persons employed on temporary establishment are governed by the various provisions of the Bombay Civil Services Rules. The persons employed on workcharged establishment are not governed by Bombay Civil Service Rules. They are not eligible to get pension and gratuity. Even the scheme of the Government Provident Fund is not applicable to the workcharged establishment persons. As there is a fundamental and basic difference between the said two establishments both are governed by different set of Rules. Therefore the comparison made by the petitioners who are appointed on workcharged establishment with the persons who are appointed on temporary establishment is without any basis and between the two sets of employees which are incomparable with each other. I submit that in respect of supervisors and junior engineers who are appointed on workcharged establishment the seniority of such persons is maintained on Circlewise level under Government Resolution Public Works Department No. WCE-1270/c (99) G dated 12-1-71. While in the case of supervisors and junior engineers who are appointed on temporary establishment their seniority is maintained at State level. I further submit that the method of recruitment of both these types of persons is different one. Junior Engineers and/or Supervisors on workcharged establishment are recruited at the circle level and Superintending Engineers are competent to recruit such persons while Supervisors and/or Junior Engineers on temporary establishment is recruited at State level. I further submit that the method of recruitment of both these types of persons is different one. Junior Engineers and/or Supervisors on workcharged establishment are recruited at the circle level and Superintending Engineers are competent to recruit such persons while Supervisors and/or Junior Engineers on temporary establishment is recruited at State level. Separate seniority is maintained for persons employed on workcharge establishment and persons employed on temporary establishment. Therefore there could not be any comparison between Supervisors and Junior Engineers on workcharged establishment and Supervisor and Junior Engrs. on temporary establishment and the comparison made by the petitioners with the persons appointed on temporary establishment is wholly without any basis between two incomparable sets of employees. ( 4 ) WITH reference to paragraph 12 of the petit on I submit that as slated above the comparison made by the petitioners is without any justification between the two different sets of employees. I submit that the first Selection Committee which was appointed under Government Resolution No. P. W. D. G. B. APPP-1062. G dated 19-10-62 was made defunct in the year 1964 and therefore a new Selection Committee was constituted in the year 1966. During the period from 1964 to 1966 there was no committee for recruitment of the Supervisors and Junior Engineers on the workcharged establishment as well as temporary establishment. The said appointments were made by the Supdtg. Engrs. at Circle level subject to condition that persons who were appointed by the concerned Superintending Engineers would have to get themselves selected by the Selection Committee as and when constituted. I submit that according to the instructions contained in paragraph 4 5 and 6 of the said Resolution dt. 19-10-62 persons who were serving on workcharged establishment could have applied before the Selection Committee provided they satisfied the criteria laid down in the Recruitment Rules. I submit that some of the persons serving on workcharged establishment were not fulfilling the criteria laid down at the time of selection and hence they were not taken up on temporary establishment. Therefore I submit that no injustice was caused to the persons serving on workcharged establishment and there was no discrimination in posting the new recruits". In the aforesaid affidavit-in-reply the state had fully supported the proposition canvassed on I behalf Or the petitioners. Therefore I submit that no injustice was caused to the persons serving on workcharged establishment and there was no discrimination in posting the new recruits". In the aforesaid affidavit-in-reply the state had fully supported the proposition canvassed on I behalf Or the petitioners. In the present case the State after a lapse of 5 or 6 years has now taken a complete somersault and filed an affidavit reply assuming a completely inconsistent posture. (The affidavit has been sworn by Shri K. J. Bhatt Deputy Secretary to the Govt. of Gujarat Public Works Department on January 31 1979 The circumstances in which a diametrically opposite stand and a full turn was taken in a matter of 5 to 6 years have been explained in paragraphs 5 6 and 7 of the affidavit-in-reply. The relevant portion from the affidavit makes interesting reading :-"however. the main difference between the two lies in the fact that the Discipline Appeal and Conduct Rules do not apply to the workcharged employees and the Government had all along been of the opinion that while temporary establishment personnel can be termed to be regular Government servants the employees on work charged establishment cannot be so termed". ( 5 ) THIS View of the Government continued to prevail and therefore in the First Pay Commission the Government did not refer the question relating to pay scales of personnel on work charged establishment to Sarela Pay commission However when Second Pay Commission was constituted the Commission examined the position and devoted the entire Chapter namely Chapter XXII to the problems of work charged employees. The Commission recommended that the work charged employees deserve to be treated like Government employees borne on regular establishment for all purposes. ( 6 ) THE Government had also thereafter considered the question of counting the service rendered by persons on work charged establishment for the purpose of determining the seniority of such employees in the temporary establishment cadre after their selection and appointment in the temporary establishment cadre. By a Resolution dated 17th of November 1977 the Government issued orders that the service rendered on work charged establishment shall not count for determining seniority However on reconsideration of the issue Government decided that work charged Service should count for seniority and issued orders accordingly as contained in the Government Resolution P. W. D. No. STS/1478-1-E-5 dated 1-8-78. By a Resolution dated 17th of November 1977 the Government issued orders that the service rendered on work charged establishment shall not count for determining seniority However on reconsideration of the issue Government decided that work charged Service should count for seniority and issued orders accordingly as contained in the Government Resolution P. W. D. No. STS/1478-1-E-5 dated 1-8-78. This was done in view of the fact inter alia that functions performed by employees on work-charged establishment ale virtually similar to those performed by personnel working on temporary establishment. Their pay scales also were the same. A large number of work charged establishment personnel were employed on establishment because of the Selection Committee not being able to screen all the possible candidates The Government issued the impugned resolution on a JUst and proper consideration of relevant factors. Finally in paragraph 9 of the affidavit the stand now being taken which is altogether contradictory with the earlier stand is sought to be explained on the ground that the Second Pay Commission had made certain recommendations and the policy of Government has undergone charge. The relevant portion from the affidavit reads as under :-"i submit that the said affidavit was filed against the background and context of the Government stand that work charged employees cannot be treated on par with the employees on temporary establishment. However in view of the subsequent recommendation of the Second Pay Commission and reconsideration of the entire question this policy of Government has undergone a change. It is always open to Government to take a policy decision concerning the whole class of employees. On a just and proper consideration of all the relevant factors the Government has taken the decision as embodied in Government Resolution annexed at Annexure `i to the petition. The averments made in the affidavit of Shri C. M. Parikh should therefore be viewed in this background and context". ( 7 ) BEFORE we examine the alibi offered by the State Government we may take stock of the overall situation. Now it is not in dispute that the work-charged establishment is not being amalgamated with the temporary establishment. It is not as if an integrated cadre is being evolved by fusing the two establishments The work-charged establishment by its very nature and character has been created for the purpose of specific works. Recruitment is made thereto in connection with such a specific works. It is not as if an integrated cadre is being evolved by fusing the two establishments The work-charged establishment by its very nature and character has been created for the purpose of specific works. Recruitment is made thereto in connection with such a specific works. The work-charged establishment continues to function and will continue to function as a distinct and separate establishment. If it was a question of amalgamation of the employees borne on the workcharged establishment with the employees borne on a temporary establishment any rule of seniority which answers the test of fairness and which can withstand the charge of arbitrariness or hostile discrimination can be evolved. We are however not concerned with any such situation. We are concerned with a situation arising in the context of recruitment by selection on the temporary establishment from open market where workcharged employees are also eligible to compete. The dispute regarding seniority) arises between the direct recruits who were not on the workcharged section on the one hand and those who have a record of preselection service in the work-charged establishment on the other. Both are direct recruits in a way the only point of difference being in regard to the nature of their previous employment. Both sections were equally eligible albeit with a minor difference in regard to age bar. Recruits from both the avenues namely direct recruits from non work-charged sphere on one hand and employees borne on the work-charged establishment on the other have to face the same Selection Committee and pass the same test. On being selected they would be borne on the same establishment. Even so one who is recruited from the work-charged establishment would be entitled to seniority vis-a-vis the direct recruit having regard to the fact that the service rendered by him on the workcharged establishment prior to his finding a berth on the temporary establishment would count for the purposes of seniority. It is not disputed by the State Government that till 1977 the State Government was operating the rule of seniority which has been embodied in Annexure H dated November 17 1977 by ignoring the preselection service rendered by an employee prior to his selection on the temporary establishment. It is not disputed by the State Government that till 1977 the State Government was operating the rule of seniority which has been embodied in Annexure H dated November 17 1977 by ignoring the preselection service rendered by an employee prior to his selection on the temporary establishment. The question then is whether the State Government is justified in reversing the rule of seniority by evolving a new rule as per Annexure I dated August 1 1978 The main ground on which the reversal is sought to be justified is that it has been necessitated on account of the subsequent recommendation of the Second Pay Commission. It would therefore be fruitful to ascertain the precise nature of the recommendation of the Second Pay Commission which gave rise to this situation. The observations in question have been made in paragraphs 5 and 6 of Chapter 22 pertaining to work-charged employees. Says the Commission:-"5 Having given the matter an anxious thought the Commission is of the view that there should be no differentiation in the conditions of service offered to work charged staff qua their counter-parts on regular establishment. Statistics and evidence show a large number of employees continue to serve on worked charged establishment for long period of over 20 years completely. An economy geared to planned development postulates successive projects and the work charged staff is moved from project to project something akin to transfer and it is stretching credibility to limit that on each occasion there is termination of service and fresh employment. The Commission came across Road Karkoons in Public Works Department (Roads and Buildings) who were on a continuous service for over 25 years and yet continued on work charged establishment. Apart from being unfair it seems counter to concept of security of service under Government. On comparison it is found that worked charged staff have to render same amount of duty as their counterparts on regular establishment and yet the conditions of service materially differ. What logic can sustain such a position ? Fair play and justice demand that their conditions of service should be humanised and they should be given such conditions of service as will make them proud for working on work charged establishment. Such an establishment really looks after construction and development works which add to human happiness and yet those working on such establishments are denied their due. Fair play and justice demand that their conditions of service should be humanised and they should be given such conditions of service as will make them proud for working on work charged establishment. Such an establishment really looks after construction and development works which add to human happiness and yet those working on such establishments are denied their due. 6 On all these considerations the Commission recommends that after an initial service of three years on work charged establishment the incumbent should be deemed to be on regular establishment and his entire service should count towards pensionary benefits small breaks in service for reasons beyond his control to be ignored. The existing personnel must be held eligible for this benefit. That is to say in the matter of protection of pay travelling allowance counting past service for purpose of leave pension etc. they should be subject to the same conditions and rights as employees on regular establishment". IT will be seen that these observations have been made primarily with a view to ameliorate the lot of the work-charged employees meaning thereby the lot of those employees who continued to belong to the workcharged establishment. The Pay Commission was not considering the question of employees on the temporary section with a work-charged nexus (past service in the work-charged section) or their inter se seniority visa-vis other direct recruits. The question which agitated the Pay Commission was as to why the working conditions of staff employed by the the work-charged establishment which in not a regular establishment should not be ameliorated as was being done in regard their counterparts on the regular establishment. The Pay Commission proceeded to observe that fair play and justice demanded that their conditions of service should be humanised and they should be given such conditions of service as would make them proud of their work on the work-charged establishment. The second point which requires to be made in the context of these observations is that it is recommended that after an initial service of three years on the work charged establishment the incumbent should be deemed to be on regular establishment and his entire service should count towards pensionary benefits by ignoring small breaks in service for reasons beyond his control. The recommendation has obviously been made with the end in view to ensure that those who were on work charged establishment for a period exceeding three years became entitled to avail of pensionary benefits. This observation was made in the context of the earlier observation that those who had rendered continuous service over 25 years were yet not able to secure a berth on the regular establishment. These recommendations made from the aforesaid twin objective and from the limited perspective cannot be called into aid for the purpose of buttressing a seniority rule in regard to the inter se seniority amongst the employees recruited on the temporary establishment by the same Selection Committee by the same process of selection. The question of inter se seniority on the temporary establishment was not within the field of vision of the Pay Commission it all. All that was being recommended was a sympathetic approach with a view to make the conditions of employees on the work-charged establishment more humane so that the situation prevailing in the work-charged establishment where even after 25 years of service the employee was denied the pensionary benefits and other benefits such as protection of pay leave pension etc. should be remedied. The Pay Commission has not recommended that the employees borne on the work-charged establishment should be treated as privileged persons or will constitute a special class within the class of direct recruits when they are ultimately able to secure a berth on the temporary establishment upon being selected along with nonwork-charged recruits. It is therefore abundantly clear that the State Government has either misunderstood the recommendations or the State Government has clutched at these recommendations simply with a view to plead an alibi for taking a volte face and reversing the earlier rule of seniority embodied in Annexure H dated November 17 1977 ( 8 ) SUPPORT was then sought by the respondents from the circumstance that prior to 1960 seniority in the cadre of Overseers in the temporary establishment was in accordance with the salary drawn by the employee concerned. In other words an employee who was drawing a higher salary was treated as senior to one who was drawing a lower salary. This practice was however abandoned on April 26 1960 as per Govt. Resolution at Annexure B. Clause (vi) of the said Resolution has provided considerable material for debate. In other words an employee who was drawing a higher salary was treated as senior to one who was drawing a lower salary. This practice was however abandoned on April 26 1960 as per Govt. Resolution at Annexure B. Clause (vi) of the said Resolution has provided considerable material for debate. It therefore requires to be quoted in extenso:-" (VI) Overseers in each zonal list should be confirmed according to the date of their joining as Overseer without any distinction between graduates. diploma holders and nonqualified person. The present practice of fixing seniority an the temporary establishment on the basis of pay and ordering confirmations according to that seniority should be abandoned. On confirmation the seniority of Overseers should be maintained according to dates of confirmation. In regard to future promotion however graduates and diploma holders will be given some weightage orders regarding which will issue separately. (Emphasis supplied)"clause (vi) reveals that the said practice along with the practice of ordering confirmation according to seniority was in terms abandoned. It is thus evident that as early as in 1960 the hitherto prevailing prestige of seniority as per pay was abandoned. Thereafter in 1962 another development has taken place. As per Resolution dated June 19 1962 the composite cadre of Ovesseers which included Degree holders as also Diploma holders has been split up into three cadres viz. (1) Junior Engineers (2) Overseers and (3) Supervisors. It is not the case of the respondents that after the 1960 resolution and splitting up of cadres in 1962 the rule of seniority as per pay would govern the question of interse seniority between the direct recruits without a work-charged nexus on one hand and recruits with a preselection service in the work-charged department on the other hand. Under the circumstances it is difficult to comprehend how this circumstance (that prior to 1960 seniority depended on pay in the erstwhile composite cadre of Overseers) can help the respondents. Under the circumstances it is difficult to comprehend how this circumstance (that prior to 1960 seniority depended on pay in the erstwhile composite cadre of Overseers) can help the respondents. ( 9 ) THE next argument advanced by the respondents is rooted in para 92 of the Manual which is in these terms :-"92 Members of the work-charged establishment are generally governed by the Bombay Civil Services Rules but they are not entitled to any pension leave salary or travelling allowances except to the following extent :- (G) The officiating service of a member on the work-charged establishment in a post on the regular establishment and vice versa should not constitute an interruption of service in the work charged or regular establishment for the purposes of calculating the leave". THE manifest purpose of this provision is to ensure that employees on the regular establishment do not suffer in the matter of computation of leave benefits etc. by treating their service in the work-charged section as a break. It is however contended that this provision envisages that a workcharges employee can also claim benefit of this provision. But then a work-charge employee was not an employee in the regular service at all (see para 89 of the Manual ). He was not entitled to any leave benefits. There was no question of break in his service because he was not in regular service at all. He was altogether outside the regular cadre. There is nothing in this provision which in my opinion can help the respondents. The respondents themselves are not able to contend that they were on the regular establishment till they were selected on the temporary establishment as direct recruits by the Selection Committee. Low can their excadre service rendered outside the cadre in the work-charged post be counted as service in the cadre There is internal evidence in the Manual which is inconsistent with the submission urged on behalf of the respondent. Paragraph 92-0 of the Manual may be consulted in this context. It provides that as far as possible the employees on the workcharged establishment should be promoted on the permanent and temporary establishment in the order of seniority and merit. It is implicit in this provision that when an employee borne on the work-charged establishment is brought on the temporary establishment it would amount to his promotion. It provides that as far as possible the employees on the workcharged establishment should be promoted on the permanent and temporary establishment in the order of seniority and merit. It is implicit in this provision that when an employee borne on the work-charged establishment is brought on the temporary establishment it would amount to his promotion. It also makes it clear that the recruitment on the temporary establishment is on the basis of seniority and merit. This Paragraph does lend support to the contention of the petitioners that the work-charged establishment constitutes a different cadre and is altogether distinct from the temporary establishment and that an employee on the work-charged establishment is not entitled to be appointed on the temporary establishment without anything more. He must first get selected. ( 10 ) TO summarize the situation it appears that the employees borne on the work-charged establishment are not a part of the regular establishment at all. Their appointment is for the limited purpose of carrying out or completion of some specific work and the employment would come to an end as soon as the said work is completed. They are not entitled to the benefit of pension and other rights. The employees on the work-charged establishment can secure an entry into the temporary establishment not as a matter of right or as a matter of course but provided they appear before the Selection Committee and are selected. The only advantage which the employees on the work-charged establishment have in the matter of appointment to the temporary establishment is that the age bar will not operate in their case. As has been in clear and unambiguous terms provided by Paragraph 89 work-charged staff are employed on the posts held by them without having any position in the regular establishment. On the other hand a temporary establishment is a part of the regular establishment. Employees borne on the temporary establishment would eventually on confirmation belong to the permanent establishment. They are also eligible for promotion to Class II posts. It is therefore impossible to hold that employees borne on the temporary establishment on one hand and the employees borne on the work-charged establishment on the other hand are employees belonging to the same cadre At the cost of repetition it must be stated that the employees on the work-charged establishment are not a part of the regular establishment at all. The employees concerned would have been appointed in connection with a specific work their service being liable to come to an end on the completion of the work. It is conceivable that on account of the growing developmental activities in the sphere of public works a large number of new works came into existence and an employee on the work-charged section was continued for a number of years without a break. All the same he would be lucky if he secured an entry on the temporary establishment on being selected. Once he is on the temporary establishment his seniority must by reason of logical necessity depend on the continuous officiation in that establishment and in that cadre. The service rendered by him elsewhere before he was born on this cadre would be of no avail to him That such service was rendered by him in work-charged establishment under the State Government is a matter of no consequence. On that rational principle can such service rendered elsewhere (outside the cadre) before recruitment to the cadre (on the temporary establishment) be treated as service rendered in the cadre What is the rational basis for such mini-classification Learned counsel for the petitioners in this context has relied on State of Gujarat v. C. G. Desai A. I R. 1974 Supreme Court 246. The view has been taken by the Supreme Court that if the preselection service as officiating Deputy Engineer were taken into account for the purpose of promotion it would create two classes amongst the same group and result in discrimination against those direct recruits who had no such preselection service to their credit. The problem arose in the following fact situation. One C. G. Desai was on the temporary establishment and he was officiating as Deputy Engineer. At that point of time Deputy Engineers who were directly recruited as Deputy Engineers in Class II were entitled to a preferential treatment in the matter of confirmation and promotion. Shri C. G. Desai felt that it would be more advantageous for him to appear at the competitive examination before the Public Service Commission and to be appointed as a Deputy Engineer Class 11 as a direct recruit in order that he could claim the advantages which were available to the direct recruits visa-vis the promotees. He was selected. Shri C. G. Desai felt that it would be more advantageous for him to appear at the competitive examination before the Public Service Commission and to be appointed as a Deputy Engineer Class 11 as a direct recruit in order that he could claim the advantages which were available to the direct recruits visa-vis the promotees. He was selected. Later on he contended that since he was already officiating as a Deputy Engineer prior to his selection he was entitled to have his preselection service taken into account. The State Govt. resisted his claim but the High Court upheld it. Thus he was accorded the benefit of service rendered by him before selection and therefore secured an advantage visa-vis those who were recruited along with him. The controversy arose in the context of these facts. And the Supreme Court has taken the view that the preselection service rendered by him cannot be taken into consideration because it would be creating two classes amongst the same group and would result in discrimination against those direct recruits who had no such preselection service to their credit. The principle laid down in the decision is fatal to the case of the respondents. If the proposition canvassed by the respondents were to be upheld the direct recruits who were recruited along with the petitioners and even direct recruits recruited earlier than them would become junior to the employees recruited from the work-charged section for in that event the preselection service rendered by them would be available to the work-charged recruits. Both work charged recruits and non work-charged recruits to the regular establishment though drawn from different avenues when they are selected merge in the same stream of direct recruits in the same establishment. A subclassification in this group cannot be made without being exposed to the charge of hostile discrimination against the direct recruits who do not have the advantage of preselection service in the work-charged section. Direct recruits also may have rendered service in State Corporations or in some private industries. This service will not be available to them whereas the service rendered by respondents No. 2 to B and employees similarly situated would be available to them merely because they were working in the work-charged section. What is the virtue in having worked in work-charges section ? What rational nexus does it have with the object of classification ? None. This service will not be available to them whereas the service rendered by respondents No. 2 to B and employees similarly situated would be available to them merely because they were working in the work-charged section. What is the virtue in having worked in work-charges section ? What rational nexus does it have with the object of classification ? None. ( 11 ) LEARNED counsel for the respondents however urged that there were a number of decisions which supported his submission. Reliance in the first instance was placed on The General Manager South Central Railway Secunderabad v. A. V. R. Siddhanti A. I. R. 1974 Supreme Court 1755 It appears that during the Second World war the Government had created a Grain Shop Department. It was a temporary department. Recruitment was made by three modes (1) the employees borne on the permanant departments were brought in the Grain Shop Department by transfer (2) persons who were selected for appointment to the permanent departments but instead were posted in the Grain Shop Department directly and (3) recruitment was made directly after the creation of the department. When the question of absorption of the staff of the Grain Shop Department comprised in the above three categories in the permanent departments of the Railway establishment arose on the winding up of the Grain Shop Department a rule for fixation of the seniority as outlined hereafter was evolved. With regard to category (1) it was provided that temporary staff who were initially appointed in the permanant department and were transferred to Grain Shop Department were entitled to have their seniority determined by disregarding their transfer to the Grain Shop Department. With regard to category (2) it was directed that their seniority would be counted from the date of their appointment to the Grain Shop Department. As regards category (3)composed of those who were directly recruited to the Grain Shop Department it was directed that their seniority should be fixed from the date of their absorption in the Department. This seniority rule was challenged in the Supreme Court. The Supreme Court has taken the view that in regard to recruitment from sources (2) and (3) they had become members of the same class governed by same conditions of service after their recruitment to the Grain Shop Department and that under the circumstances in the matter of their absorption seniority etc. The Supreme Court has taken the view that in regard to recruitment from sources (2) and (3) they had become members of the same class governed by same conditions of service after their recruitment to the Grain Shop Department and that under the circumstances in the matter of their absorption seniority etc. on the regular departments they were entitled to be treated alike. The Supreme Court has however taken a different view with regard to the personnel belonging to category (1) namely the employees who were borne on permanent departments before they were posted in the Grain Shop Department. The Supreme Court has taken the view to the effect that they had not voluntarily sought an entry in the Grain Shop Department and that they were obliged to accept their posting in the Grain Shop Department by way of transfer or a loan and that they had no option in the matter. Under the circumstances they could not be treated differently from those who continued in the permanent departments but were lucky enough not to be subjected to transfer like those belonging to category (1 ). Special treatment accorded in respect of those belonging to category (1) was sustained on this reasoning. In regard to the special treatment accorded to those belonging to categories (2) and (3) the preferential treatment sought to be accorded to those belonging to category (2) namely of employees who had been selected for posting in the permanent department but instead of being posted in that department were posted in the Grain Shop Department was held to be discriminatory in character. In my judgment this decision does not lay down any principle which can support the proposition canvassed on behalf of the respondents. Two propositions emerge from this decision:- (1) those who were in the permanent departments and happened to be transferred to Grain Shop Department on account of a frotuitous circumstance were entitled to treatment similar to the treatment accorded to those who were borne on the same cadre in the same department but were lucky enough not to be subjected to transfer and (2) once recruitment was made in the same cadre from two different sources they would fall in the same category and any factor peculiar to some of them pertaining to a point of time prior to their selection could not be taken into consideration for according a preferential treatment. Neither the first nor the second proposition can lend support to the cause of the respondents. In point of fact the second proposition would buttress the stand taken by the petitioners for by analogy it can be argued that once the petitioners and respondents Nos. 2 to 8 were selected by the same Selection Committee and make entry on the temporary establishment through the same channel no differential treatment can be meted out in the context of any factor pertaining to the point of time prior to their securing entry in the temporary establishment. If what the direct recruits were doing immediately preceding their selection is immaterial what the respondents Nos. 2 to 8 were doing immediately before their selection is equally immaterial for the purpose of determining their seniority. If the preselection service rendered by direct recruits elsewhere cannot be taken into consideration the preselection service rendered by respondents cannot be taken into consideration either. Nothing turns on the circumstance and the situation is not altered by the circumstance that the preselection service on the part of respondents Nos. 2 to 8 was rendered in the work-charged establishment of the State Government. ( 12 ) RELIANCE was next placed on Joginder Nath v. Union of India A. I. R. 1975 Supreme Court 511. The problem arose thus. Prior to establishment of High Court of Delhi in 1966 Judicial Officers from States of Uttar Pradesh and Punjab (and later on judicial Officers from the States of Punjab and Haryana) used to be posted in Delhi against the judicial posts on ad hoc basis. Rule 9 was enacted by the Delhi Administration for recruitment to Delhi Judicial Service. For the purpose of initial recruitment to the service officers of the judicial cadre and those not belonging to the judicial cadre but by and large performing judicial functions were put together as provided in rule 9 (a ). The validity of this grouping was challenged. The Supreme Court negatived the challenge on the ground that Article 14 or 16 was not violated by grouping them together for the purpose of initial recruitment to the judicial service. The validity of this grouping was challenged. The Supreme Court negatived the challenge on the ground that Article 14 or 16 was not violated by grouping them together for the purpose of initial recruitment to the judicial service. A grievance was also made in regard to rule 11 of Delhi Judicial Service Rules which provided that the Selection Committee shall arrange the seniority of the candidates recommended by it in accordance with the length of service rendered by them in the cadre to which they belonged at the time of their initial recruitment to the service. The Supreme Court has taken the view that taking the length of service rendered by the candidates in their respective cadres for the purpose of fixation of seniority was perfectly valid. It was merely placing two classes at par for the purpose of seniority when it became a single class in the integrated judicial service of Delhi. In fact the Supreme Court was of the opinion that under the circumstances the only rational and workable formula that one could conceive was the formula evolved by rule 11 This decision also can not help the respondents. In the first place the two different streams were being integrated with each other unlike the present case where recruitment to the same stream is made from two avenues. As discussed earlier the perspective is altogether different in an integration or merger scheme or situation. Besides all that was done was that the recruits from two different sources were placed on par in regard to their past experience or past service for the purpose of seniority. For a very good reason. If a differential treatment was mated out then it would have offended the equality principle. In the present case however the preselection service of the direct recruits is not considered whereas that of the recruits from the work-charged section has been taken into account for the fixation of the seniority. It is unnecessary to examine the question whether or not the situation could have been salvaged if preelection service rendered by both categories was taken into account. Suffice it to say that in the present case it has not been done. Under the circumstances Joginder Naths case cannot support the claim of the respondents. It is unnecessary to examine the question whether or not the situation could have been salvaged if preelection service rendered by both categories was taken into account. Suffice it to say that in the present case it has not been done. Under the circumstances Joginder Naths case cannot support the claim of the respondents. ( 13 ) IT was then contended that the functions discharged by the employees borne on the temporary establishment were similar to the functions discharged by the employees on the work-charged section and that under the circumstances there was nothing wrong in framing a rule for giving credit for preselection service rendered in the work-charged section. The question is not whether the functions discharged were similar or not. Such a question can arise in the context of amalgamation or integration of two cadres. If the work-charged section was being amalgamated or integrated with the temporary establishment it could have perhaps been considered as a relevant factor. In the present case we are not concerned with any such question. Counsel for the respondents however called into aid S. B. Patwardhans Case (A. I. R. 1977 S. C. 2051) in support of the contention that all other factors being equal the factor relating to the functions discharged should be accorded due weightage. The observations made by the Supreme Court in paragraph 51 in my opinion run counter to the proposition canvassed by the respondents and hurt rather than help their case. Says the Supreme Court:-"all other factors being equal continuous officiation in a nonfortuitous vacancy ought to receive due recognition in determining rules of seniority as between person recruited from different sources so long as they belong to the same cadre". THE ratio of the aforesaid decision therefore goes to show that in the matter of fixing seniority in the same cadre continuous officiation is the accepted principle due regard being had to the similarity of functions discharged in the same cadre. In fact if the view point canvassed by the respondents were to be accepted we will be giving a goby to the principle of continuous officiation for the purpose of fixing seniority in the same cadre. It may also be stated that competing claims are being made by service rendered by only one of the two groups namely the employees drawn from the work-charges section cannot be accorded weightage for the purpose of seniority. It may also be stated that competing claims are being made by service rendered by only one of the two groups namely the employees drawn from the work-charges section cannot be accorded weightage for the purpose of seniority. It is therefore not possible to accede to the argument urged on behalf of the respondents. ( 14 ) LASTLY reliance is placed on observations made by Supreme Court in Reserve Bank of India v. N. C. Paliwal A. I. R. 1976 Supreme Court 2345 in paragraph 16 wherein it is inter alia observed that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such a rule on the ground that in its opinion another rule would have been better or more appropriate. The only enquiry which the Court can make is whether the rule is arbitrary or irrational so that it results in inequality of opportunity amongst employees belonging to the same class. Counsel for the respondents has laid stress on the first part of the aforesaid statement of law whereas counsel for the petitioners has laid stress on the second part of the aforesaid statement. The principle embodied in the statement of law contained in paragraph 16 is unexceptionable. All the same counsel for the respondents surely cannot suggest that having regard to the first part of the statement it is open to the State to lay down an rule regardless of the rationality or the antidiscrimination test. The emphasis cannot be on any. No doubt it is not for the Court to say which rule is preferable. The Court is however under the constitutional command to examine the question whether the rule passes the aforesaid two tests in view of the mandate of Articles 14 8l 16. The Supreme Court has therefore made it abundantly clear that while any rule can be framed such rule must not be an irrational arbitrary or discriminatory rule for in that event it would be violative of the equality guarantee embodied in Articles 14 and 16 of the Constitution of India. In fact the very challenge of the petitioners in the present matter is based on this principle. In fact the very challenge of the petitioners in the present matter is based on this principle. It is contended that any rule of seniority which disregards the principle of continuous officiation in the same cadre in the same establishment namely in the temporary establishment cannot stand the test of Articles 14 and 16 unless it is shown that the weightage is being accorded on some rational ground. The crux of the question then is whether or not the rule of seniority which is sought to be applied by the impugned Govt. Resolution as per Annexure I dated August 1 1978 can withstand the challenge on the charge of irrationality and arbitrariness. As pointed out in the course of the earlier discussion giving credit for the preselection service to the work-charged employees without granting similar credit to the direct recruits in respect of the preselection service rendered by them introduces an element of discrimination In the second place the adoption of this rule of seniority would result in manifest injustice in the sense that those who are recruited subsequently from the work-charged section would become senior to those who were recruited earlier from the Open market. Even amongst those who are recruited from the same source namely the work-charged section those who are recruited earlier would become junior to those who are recruited later on in case those having a longer term of service in the work-charged section are not selected earlier in point of time but happen to be selected subsequent to the selection of those having a shorter term of service in the work-charged section. On what rational principle can the State make a departure from the accepted principle of seniority according to continuous officiation in the same cadre Once they are selected they cannot be accorded a different treatment depending on what they were doing outside the cadre prior to their selection. To do so would amount to accorded preferential treatment on an irrelevant consideration. It would be arbitrary and irrational to do so. Under the circumstances the impugned resolution as per Annexure I dated August 1 1978 to the extent that it provides that the preselection service rendered in the work-charged section should be taken into account is violative of Articles 14 and 16 of the Constitution of India. It would be arbitrary and irrational to do so. Under the circumstances the impugned resolution as per Annexure I dated August 1 1978 to the extent that it provides that the preselection service rendered in the work-charged section should be taken into account is violative of Articles 14 and 16 of the Constitution of India. As discussed earlier the only ground on which the alteration in the seniority rule is sought to be justified is that recommendation in this behalf was made by the Second Pay Commission in its report. This aspect has been dealt with in the earlier part of the judgment. In fact no such recommendation has been made at all and the observations made by the Second Pay Commission which was not seized of this question do not provide any justification or excuse for introducing a new rule of seniority. More so since as discussed earlier it can be characterised as irrational arbitrary and discriminatory in its application visa-vis the direct recruits. ( 15 ) UNDER the circumstances the petition must be allowed. The rule of seniority embodied in Govt. Resolution dated August 1 1978 at Annexure I providing for giving credit for the preselection service rendered between July 1 1961 to December 31 1972 in the work-charged section is held to be irrational and arbitrary and on that account discriminatory and violative of Articles 14 and 16 of the Constitution of India. The respondent State is therefore restrained from giving effect to the rule of seniority contained is the impugned Resolution at Annexure I. Rule is made absolute to the aforesaid extent. There will be no order regarding costs. Petition allowed. .