A. Janardhana Vs. Union of India &
Ors [1983] INSC 50 (26 April 1983)
DESAI, D.A.
DESAI, D.A.
ERADI, V. BALAKRISHNA (J)
CITATION: 1983 AIR 769 1983 SCR (2) 936 1983
SCC (3) 601 1983 SCALE (1)443
CITATOR INFO :
F 1984 SC1291 (32) C 1984 SC1595 (36,74,77,83)
D 1985 SC 774 (24) D 1985 SC 781 (13) F 1985 SC1019 (11,20,21) F 1985 SC1558
(26,28) F 1985 SC1605 (14,16) RF 1986 SC 638 (12,15,20) F 1987 SC 424 (24) R
1987 SC 716 (13) RF 1987 SC2359 (17) D 1988 SC 268 (22) R 1988 SC 394 (4) APL
1989 SC 278 (17) RF 1990 SC 428 (4,6,8,9,10,11,13,14) RF 1990 SC1256 (14) RF
1992 SC1277 (38,99)
ACT:
Service Jurisprudence-Anomaly in recruitment
Rules- Inter-se-seniority of Direct Recruits and promotees in the Military
Engineer Services Class 1-C Seniority Lists drawn up in 1963 and 1967/68 on the
principle of length of service Continuous officiation altered to one based on
quota between direct recruits and promotees leading to rota for confirmation
treating many earlier promotees as surplus and out of the list-Validity of the
revised 1974 inter-se Seniority List and the panel of promotion prepared and
published on January 13, 1975, based thereon Military Engineer Services, Class
r (Recruitment Promotion and Seniority Rules 1949 which became statutory with
effect from 11.1.2.69-Rules 3 and 4 read with Rule 23 of Pal t 111, para 3 of
appendix V and Army Instruction 241 of 1950 scope of Constitution of India,
Article 14.
HEADNOTE:
Appellant joined service as suspension in the
year 1953 in what is styled as Military Engineering Service. He came to be
promoted as Assistant Executive Engineer in 1962. In the seniority list of AEE
drawn up in the year 1963 he was shown at serial no. 357. In the seniority list
of 1967 the appellant's name was found at serial no. 234. But as a result of
the decision in Bachan Singh's case the Union Government set aside the
seniority lists of 1963 and 1967/68 and drew up a Fresh list on the criteria
drawn from the decision in Bachan Singh's case. In the seniority list so drawn,
the appellant's name did not find a place at all because he was pushed down,
treating still as surplus, after applying the quota from the date of the
constitution of the service itself in 1951, applying the ratio of 9:1 between
the direct recruits and the promotes. If he were to be treated as surplus in
this manner the appellant cannot be adjusted and treated as a member till 1989
by which he may retire, of the service within the definition of that expression
found in the Military Engineers Services Rules (Recruitment, Promotion and
Seniority) Rules 1949 as amended from time to time. The Union of India
understood the decision in Bachan Singh's case to mean that there was a quota
for recruitment in the cadre of AEE in MES Class I of 9 direct recruits to one
promotee (9:1) since 1951 and that the quota must lead to rota for confirmation
and thus redraw the seniority list with the startling result of the appellant
and several others similarly situated unable to get a berth at all.
The appellant therefore, filed a writ
petition no.
4293/79 questioning the validity and legality
of the revised seniority list Ex. 'D' circulated with letter dated June 14,
1974 and to cancel the panel af promotion prepared and communicated in E,E.C's
proceedings no. 65020/EE/74/EIR/dt January 13.1975 937 drawn up an the basis of
the impugned revised seniority list. The writ petition having been dismissed,
the appellant has come up in appeal by special leave. A Allowing the appeal,
the Court ^
HELD :1. The seniority lists of 1963 and
1967168 were quite legal and valid and hold the field till 1969 having been
drawn up on the basis of the principle which satisfies the test of Article 16.
Their revision can be made in respect of members who joined service after 1969
and the period subsequent to 1969. [963 E-F]
2.1 The seniority list 'Ex. D"
circulated with the letter dated June 4, 1974 and the panel for promotion
included in E-E-C's proceedings no. 65020/EE/74/EIR dated January 13,1975 drawn
up on the basis of that list are incorrect and stem from a misunderstanding and
misinterpretation or the Supreme Court's decision in Bachan Singh and Anr. v.
Union of India and Ors. [1972] 3 SCR 898.
[965 H, 906 A]
2.2 'There was no justification for redrawing
the seniority list in 1974 affected persons recruited or promoted prior to 1969
when the rules acquired statutory character. No doubt, it is open to the
Government to prescribe principles for determining inter-se seniority of
persons belonging to the same service or cadre except that any such principle
must meet the test of Article 16. It is equally open to the Government to
retrospectively revise rules, if the same does not adversely affect vested
rights.
But if the rule for determining inter se
seniority is revised or a fresh rule is framed, it must be constitutionally
valid. The criterion adopted is illegal and valid. It overlooks the character
of the appointments made during the period 1959 to 1969. lt treats valid
appointments as doubtful validity. It pushes down persons validly appointed
below those who were never in service and for reasons unknown with
retrospective effect i.e. from 1951. 1965 G-H, 966 B-C]
3. In Bachhan Singhs case, the Supreme Court,
after reviewing the History of the MES rules from 1949 to 1969 held as follows:
F (i) The '1949 Rules' and the subsequent amendments acquired statutory
character in 1969 because as a result of 1969 amendment, the entire body of
rules of Class I became statutory rules by incorporation and till then they we
e mere administrative instructions. [952 A] (ii) Under rules 3 and 4 of the
1949 Rules, the recruitment to MES Class I could be made from two sources only,
namely, by competitive examination held in India in accordance with Part II of
the Rules, which makes extensive provisions for holding examination including
the eligibility for admission to the same, and by promotion in accordance with
Part II of the Rules. [952 B] (iii) During the years 1962, 1963 and 1964
particularly and until the year 1969, the Class l Service. Rules were not
statutory in character. The Union Government relaxed the Rules both in regard
to recruitment by interview 938 and in regard to the quotas fixed by the Rules
for direct recruitment and a recruitment by promotion to Class I Service, the
quota rule being 9:1 as per Rule 4. [953 A B, D] (iv) In 1962, there was a
state of emergency. Engineers were immediately required to fill the temporary
posts in Class I service. To meet the emergency the Union Government in
consultation with the Union Public Service Commission decided to directly recruit
candidates by advertisement and selection by interview only by the Union Public
Service Commission. The Government with the aid of selection and interview by
the UPSC directly recruited some respondents to Class I service in the years
1962,1963 and 1964. [953 D-E] (v) In respect of the vacancies that occurred
between 1951 and 1971, because of the emergency, the quota rule for filling
them was ignored both for departmental promotees and direct recruitment; and
[953 E-G] (vi) Therefore, the appointment of those direct recruits who were
appointed after interview by the Union Public Service Commission, that is by a
method not permitted by the rules was valid and legal in as much as that was
done in relaxation of the rules both as to competitive examination and the
promotions were given after relaxing the quota rule. 'I he direct recruits who
were appointed by interview did fall within the class of direct recruits. [954
B-C] (vii) Rule 24 which was introduced in 1967 conferred power on the Union
Government for the reasons to be recorded in writing and after consultation
with the Union Public Service Commission to relax all or any of the rules with
respect to class or category of persons posts. As the 1949 rules were
non-statutory in character till 1969, the Government did make the recruitments
from both sources after exercising the said power to relax the rules. [954 G,
955 A, B]
4.1 If Rule 3 of M.E.S. (R.P.S.) Rules
provided methods of recruitment indicating the sources from which recruitment
could be made and if rule confers discretion on Government to make recruitment
from either source because Rule 4 opens with a limitation, namely, that it is
subject to Rule 3, now, if as held in Bachan Singh's case, "1949
Rules", while prescribing the quota conferred power on the Union
Government to make recruitment in relaxation of the rules, it is implicit in
this power to make recruitment in relaxation of the quota rule and it is
admitted that because of the emergency and because of the exigencies of
service, recruitment was made in relaxation of the rules, in this case. It is
this emergency and the dire need of urgently recruiting engineers which led the
Government to make recruitment in relaxation of quota rule by foregoing the
competitive examination and promoting subordinate ranks to class I service.
Petitioners and similarly situated persons were thous promoted to meet the dire
need of service in felaxation of the quota rule. [955 F-G]
4.2 It is true that where the rule provides
for recruitment from two sources and simultaneously prescribes quota, unless
there is power to relax the rule any recruitment in excess of the quota from
either of the sources could 939 be illegal and the excess recruits unless they
find their place by adjustment in subsequent years in the quota, would not be
members of the service.
[955 G, H, 956 A] S.G. Jaisinghani v. Union
of India [1967] 2 SCR 703 at p. 718; B.S. Gupta v. Union of India (1st Gupta's
case), Suppl. SCR 49; B.S. Gupta v. Union of India (2nd Gupta's case ) [1975] 1
SCR 104; referred to.
4.3 But, when recruitment is from two
independent sources, subject to prescribed quota, but the power is conferred on
the Government to make recruitment in relaxation of the rules, any recruitment
made contrary to the quota rules would not be invalid, unless it is shown that
the power of relaxation was exercised, malafide, that is not the contention in
this case nor voiced in Bachan Singh's case. [957 C-E] N.K. Chauhan &
Others v. State of Gujarat and Others, [1977] 1 SCR 1037; referred to.
4.4 Now, if recruitment contrary to Rule 3,
namely by interview by the Union Public Service Commission, which is not the
recognised mode of recruitment, is held valid in Bachan Singh's case on the
ground that the same emergency compelled the Government to recruit by promotion
engineers to the post of AEE class I in excess of the quota by exercising the
power of relaxation and such recruitment ipso facto would be valid. The
promotees being validly promoted as the quoted rule was relaxed would become
the members of the service. [957 G-H, 958 A]
4.5 The 1949 Rules do not throw any light on
the composition of the service, except the fact that the expression
"service" has been defined to mean Military Engineering Service,
Class I. If the recruitment is made from either of the sources and is otherwise
legal and valid, persons recruited to temporary posts would nonetheless be
members of the service. Keeping in view the exigencies of service and the
requirements of the State, unless it is made clear to the contrary that the
temporary posts are fir a certain duration or the appointments to temporary
posts are of an ad hoc nature till such time as recruitment according to rules
is made. In the absence of any such provision, persons holding permanent and
temporary posts would become the members of the service provided the
recruitment to the temporary posts is legal and valid. Once the recruitment is
legal and valid, there is no difference between the holders of permanent posts
and temporary posts in so far as it relates to all the members of the service.
[958 B-D] In the instant case, the question whether the vacancies were in the
permanent strength or in the temporary cadre is irrelevant because none of the
appellants and others similarly situated is reverted on the ground that no more
vacancy is available. [958 A] S.B. Patwardhan & Ors v. State Maharashtra
& Ors, [1977] 3 SCR 775 @ 795 followed.
940 5:1 It is well recognised principle of
service jurisprudence that any rule A of seniority has to satisfy the test of
equality of opportunity in public service as enshrined in Article 16. Equally
yet well recognised canon is that in the absence of any other valid rule for
determining inter se seniority of members belonging to the same service the
rule of continuous uninterrupted service since the entry would be valid and
would satisfy the test of Article 16. Apart from this general principle for
determining inter se seniority in the instant case, there is a specific rule
namely para 3(iii) of Appendix V of 1949 Rules, governing inter se seniority
between direct recruits and promotees in MES, Class I Service and it was in
force till 1974 when the impugned list was drawn up. [960 F-H] 5:2 In para
3(iii) of Appendix V of 1949 Rules, it was provided that a roster shall be
maintained indicating the order in which appointments are to be made by direct
recruitment and promotion in accordance with the percentages fixed for each
method of recruitment in the recruitment rules. The relative seniority of
promotees and direct recruits shall be determined by the dates on which the
vacancies reserved for the directs and the promotees occur.
This rule' was related to the quota of 9:1
between direct recruits and promotees prescribed in Rule 4. [951 A-C] 5:3 A
combined reading of Rule 4 and para 3(iii) of Appendix V would clearly show
that a roster has to be maintained consistent with the quota so that the
relative inter se seniority of promotees and direct recruits to be determined
by the date on which vacancy occurred and the vacancy is for the direct recruit
or for the promotee. If quota prescribed by rule 4 was adhered to or was
inviolable, the rule of seniority enunciated in para 3(iii) of Appendix V .
will have to be given full play and the seniorily list has to be drawn in
accordance with it. But as quota rule was directly inter related with the
seniority rule and once the quota rule gave way, the seniority rule enunciated
in para 3(iii) of Appendix-V became wholly otiose and ineffective.
[961 C-E] It is well recognised that where
the quota rule is linked with the seniority rule, if the first breaks down or
is illegally not adhered to giving effect to the second would be unjust,
iniquitous and improper In the instant case, therefore, once time quota rule
was wholly relaxed between 1959 and 1969 to suit the requirement of service and
the recruitment made in relaxation of the quota rule and the minimum
qualification rule for direct recruits is held to be valid, no effect can be
given to the seniority rule enunciated in para 3(iii), Which was wholly
inter-linked with the quota rule and cannot exist apart from 'J it on its own
strength. Further, this position is impliedly accepted by the Union Government
and is implicit in the seniority lists prepared in 1963 and 1967-68 in respect
of AEES because both these seniority lists were drawn up in accordance with the
rule of seniority enunciated in Annexure 'A' to Army Instruction no. 241 of
1950 dated September 1, 1949 and not in compliance with para 3(iii) of Appendix
V. [961 E-H, 962 A-B] B. S. Gupta v. Union of India (1st Gupta's case) [1975]
Suppl. SCR 491 referred to.
941 5:4 The principle of seniority enunciated
in Army Instruction 241 of 1950 is that the rule for determining inter se
seniority in the cadre of Assistants A should generally be taken as the model
in framing the rules of seniority for other services and in respect of persons
employed in any particular grade seniority should as a general rule be
determined on the basis of the length of service in that grade as well as
service in an equivalent grade irrespective of whether the latter was under the
Central or provincial government in India or Pakistan. This was the rule of
seniority which would be applicable in the absence of any other rule
specifically enacted for MES class I service. Even a plausible contention that
the seniority rule enunciated in para 3(iii) of Appendix V of 1949 Rules was
the one specifically enacted for MES class I service and this special rule
would prevail over the general rule issued in Army Instruction 241 would be of
no avail in as much as (1) the rule in para 3 (iii) gave way when the quota
rule was relaxed and (ii) in all the subsequent rules of 1953, 1961 and 1962,
it was clearly stated that the "principles for determining seniority are
under consideration". [962 C- A] 6:1 the two fundamental basic assumptions
on which the impugned seniority list was drawn up are wholly untenable and
contrary to the relevant rules. The first assumption that there was a rigid
quota rule and that the recruitment in excess of the quota would be invalid and
the excess recruits from either source will have to be adjusted and regularised
in succeeding years, was probably due to the authorities having been influenced
by the observations in Jai Singhani's case and the two successive B. S. Gupta's
cases, all of which have no application to the facts of the present case. The
second assumption that there was an inviolable quota rule which could not be
relaxed was due to overlooking the position that once the quota rule was
relaxed, the rota for confirmation disappeared. In the absence of any other
rule coupled with the Army Instructions, upto 1968 continuous officiation would
be the only available rule for determining the inter se seniority.
Further as far as the minimum educational
qualification is concerned promisees and direct recruits are on par and the
promotees cannot be looked upon as persons belonging to an inferior breed. [963
D-H, 964 A]
7. The contention that the individuals likely
to be affected by the decision not being impleaded, the writ petition should
fail cannot be accepted. Factually it is incorrect because by order of the High
Court, names of respondents 3 to 419 were deleted and in the Supreme Court
submissions were made by a counsel for them. In the petition as well as in the
appeal the relief is claimed against the Union of India and the concerned
Ministry and not against any individual nor any seniority is claimed by anyone
individual against G another particular individual. The contention is that the
criteria adopted by the Union Government in drawing up the impugned seniority
list are illegal and invalid. Therefore, even if technically the direct
recruits were not before the Court, the petition is not likely to fail on that
ground. [966 G-H, 967 A-B] Vade Mecum It is unfortunate that very unjust,
unfair and inequitable situation having a demoralising effect on public
services probably ensuing from certain 942 rules framed by the Government and
the decisions of this Court has emerged. Even where the recruitment to a service
is from more than one source and a quota is fixed for each source yet more
often the appointing authority to meet its exigencies of service exceeds the
quota from the easily available source of promotees because the procedure for
making recruitment from the market by direct recruitment is long prolix and
time consuming. The Government for exigencies of service, for needs of public
services and for efficient administration, promotee person easily available
because in a hierarchical service one hopes to move upward.
After the promotee is promoted, continuously
renders service and is neither found wanting nor inefficient and is discharging
his duty to the satisfaction of all, a fresh recruit from the market years
after promotee was inducted the service comes and challenges all the past
recruitments made before he was born in service and some decisions especially
the ratio in Jai Singhani's case as interpreted in two B. S. Gupta's cases
gives him an advantage to the extent of the promotee being preceded in seniority
by direct recruit who enters service long after the promotee was promoted. When
the promotee was promoted and was rendering service, the direct recruit may be
a schoolian or college going boy. He emerges from the educational institution,
appears at a competitive examination and starts challenging everything that had
happened during the period when he has had nothing to do with service. A
mandamus issued in Jai Singhani's case led to a situation where promotees of
the year 1962 has to yield place to direct recruits of 1966 and the position
worsened thereafter. In the case in hand, appellant a promotee of September 27,
1962 is put below N. K. Prinza who appeared at competitive examination in April
1976 i.e. One who came 14 years after the appellant, and it does not require an
intelligent exercise to reach a conclusion that 14 years prior to 1976 Mr.
Prinza who is shown to be born on July 20, 1950 must be aged about 12 years and
must have been studying in a primary school. Shorn of all service jurisprudence
jargon one can bluntly notice the situation that a primary school student when
the promotee was a member of the service, barged in and claimed and got
seniority over the promotee. If this has not a demoralising effect on service
one fails to see what other inequitous approach would be more damaging. It is
therefore, time to clearly initiate a proposition that a direct recruit who
comes into service after the promotee was already unconditionally and without
reservation promoted and whose promotion is not shown to be invalid or illegal
according to relevant statutory or non-statutory rules should not be permitted
by an principle of seniority to score a march over a promotee because that
itself being arbitrary would be violative of Arts. 14 and 16.
[968 D-H, 959 A-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 360 of 1980.
From the Judgment and order dated the 15th
and 17th May, 1979 of the High Court of Karnataka at Bangalore in Civil Writ
Petition No. 4293 of 1975.
G. L. Sanghi and A. K. Sanghi for the
Appellant.
Abdul Khader, N. C. Talukdar and Miss A.
Subhashini for Respondent Nos. 1 and 2.
943 P. R. Mridul and H.K. Puri for Respondent
Nos. 3 to 11.
M. K. Ramamurthi and Jatindra Sharma for
Respondent No.
Dr. Y. S. Chitale and A.K Sanghi for
intervener.
The Judgment of the Court was delivered by B
DESAI, J. Appellant A. Janardhana filed Writ Petition No. 4293 of 1979
questioning the validity and legality of the revised seniority list Ex. 'D'
circulated with the letter dated June 14, 1974 to which the revised seniority
list Ex. 'C' was annexed and as a consequence to cancel the panel of promotion
dated January 13, 1975, drawn-up in respect of 102 officers. A mandamus was
sought directing the respondents to give effect to the 1963 Seniority List
drawn- up on the principle of length of service-continuous officiation as set
out in the notification memorandum dated March 11, 1965. A cognate Writ
Petition No. 4273 of 1979 by one Manjunatha was also heard and disposed of by
the Court along with the writ petition filed by the appellant.
The factual matrix in juxtaposition with the
relevant rules may be set out in details because the very narration of
chronology of events would illumine the contours of controversy.
Appellant joined service as Supervisor in the
year 1953 in what is styled as Military Engineering Services (MES' for short).
He came to be promoted as Assistant Executive Engineer (AEE) in 1962. In the
seniority list of 'AEE' drawn up in the year 1963 the appellant was shown at
Serial No. 357. In the revised seniority list dated June 14, 1974 impugned in
the petition, the appellant did not find a place because consistent with the
quota rule on the basis of which the impugned revised seniority list of 1974
was prepared, the appellant was surplus and could not find his berth in the
seniority list. It is necessary to note an intervening event. One Bachan Singh
and Anr., the two promotees to the post of 'AEE' in the years 1958 and 1959
respectively, filed a writ petition in the High Court of Delhi challenging the
appointment of several direct recruits to 'MES' on the ground that their
appointment was contrary to and in violation of the rules of recruitment and
they were not validly appointed and, therefore; could not become members of the
service. The writ petition was dismissed by the High Court of Delhi and the 944
matter was carried in appeal in this Court. The decision rendered A by a
Constitution Bench of this Court in Bachan Singh & Anr v. Union of India
& ors(l) was interpreted by the first respondent to mean that the direct
recruitment, not by competitive examination but by interview and viva voce
test, was valid and such appointments being in consonance with the rules, the
confirmation of said direct recruits was within the quota of direct recruits in
permanent vacancies and was hence valid. The first respondent understood the
decision to mean that there was a quota for recruitment in the cadre of 'AEE'
in 'MES' Class I of 9 direct recruits to 1 promotee (9:1) since 1951 and the
quota must lead to rota for confirmation and proceeded to redraw the seniority
list in 1974 with the startling result in respect of the appellant and several
persons similarly situated as hereinabove set out. The appellant in his writ
petition questioned the criteria adopted for preparing revised seniority list
of June 1974 on diverse grounds based on the ratio of the decision in Bachan
Singh's case.
Criteria may be extracted from the memoranda
covering the seniority list dated June 14, 1974:
"(a) The inter se seniority of direct
recruits and depart mental promotees is to be fixed in accordance with the
quota laid down in ME (RPS) Rules 1951 from time to time. The same quota is to
apply both in the matter of confirmation and fixation of seniority.
(b) Seniority List of Assistant Executive
Engineers is to be prepared upto 1968 and excess departmental promotees who
cannot be brought into the cadre have to be shown separately and brought in the
cadre on the basis of quota as and when vacancies become available.
(c) From 1.2.1969, the date on which the
rules became statutory, the seniority of excess departmental promotees (Approx
'B') of the list is to be regulated as under:
(i) The seniority of departmental promotees
who are brought into cadre from 1969 onwards will count along with direct
recruits of the year in 945 which the promotees are brought into the cadre and
any service for further promotion to higher posts. For example a departmental
promotee of 1966, if brought on the incadred list in 1970 will count only the service
in the grade of AEE after 1970 for seniority in that grade for further
promotion as EE.
(ii) All excess promotees who are holding
higher appointment will be eligible for consideration for further promotion on
completion of the requisite service after their adjustment in the cadre.
(d) The revised seniority list based on the
above decisions will be subject to the out-come of the writ petition pending in
the Andhra Pradesh High Court and any other legal pronouncement that may be
made in this behalf. All promotions based on this seniority list will also be
subject to revision on the availability of the judgment in the writ petition.
While making promotions therefore, it may be made clear that these promotions
will be subject to any further decision of the Court." It would be
advantageous to mention that the criteria had the flavour emanating from the
reading and understanding of the decision in Bachan Singh's case. If the
understanding or interpretation of the ratio Bachan Singh's decision is incorrect
or contrary to what is laid down, the unavoidable consequence would be that the
seniority list drawn up on such incorrect or misinterpreted ratio would not
only fall but it would have to be quashed. Let us therefore first refer to the
various stages through which relevant rules have moved leading to the decision
in Bachan Singh's case.
There is a glut and mass of rules bearing on
the subject and we may briefly weave through them.
By notification dated September 17, 1949, the
Ministry of 1 Defence published Rules styled as Military Engineer Services,
Class I (Recruitment, Promotion and Seniority) Rules (1949 Rules for short).
'Service' was defined to mean Military Engineer Services.
946 Class I. Rules 3 and 4 have provided the
cornerstone for all contentions canvassed in this appeal and may be extracted:
"3. The service (other than the
Architect's Service and the Barrack and Stores Service) shall be recruited by
the following methods:
(i) By competitive examination held in India
in accor- dance with part II of these Rules.
(ii) By promotion in accordance with Part III
of these Rules
4. Subject to the provisions of Rule 3,
Government shall determine the method or methods to be employed for the purpose
of filling any particular vacancies or such vacancies as may require to be
filled during any particular period, and the number of candidates to be
recruited by each method provided that not more than 10 per cent, of the
vacancies in the service (not being vacancies filled by promotion from one
grade to another within the service) shall be filled by the method specified in
clause (ii) of Rule 3 above.
The recruitment was to be from two sources:
(i) direct recruitment by competitive examination; and (ii) by promotion in
accordance with Part III of the Rules. Rule 4 confers discretion on the
Government circumscribed by the provision of Rule 3 enabling the Government to
determine the method or methods to be employed for the purpose of filling in
particular vacancies or such vacancies as may be required to be filled during
any particular period, and the number of candidates to be recruited by each
method. There is a proviso to Rule 4 and it is the subject matter of
acrimonious debate in the Court. One submission of Mr. P. R. Mridul, learned
counsel for direct recruits was that the proviso is the proviso to sub-rule
(ii) of Rule 3 and it fixes the quota of 9 to 1 between direct recruits and
promotees. At the other end of the spectrum, the submission was that it merely
provides a. ceiling and not an inviolable quota rule. We would examine both the
submissions a little while after. Part II of the Rules makes detailed provision
for the competitive examination to be held in India for selecting direct
recruits. Rule 21 to 23 in Part III of the 1949 Rules, prescribe qualification
and method 947 for recruitment by promotion. One worth noticing is Rule 23
which prescribes that no individual shall be eligible for promotion to the A
service unless, he would, but for age, be qualified for admission to the
competitive examination under Part II. This would mean that except for age all
other qualifications including educational qualification for direct recruits
and promotees are the same. There are S Appendices to 1949 Rules. Para 3 in
Appendix V provides for inter se seniority between direct recruits and
promotees.
Sub para (iii) of para 3 is relevant and may
be extracted:
"(iii) A roster shall be maintained
indicating the order in which appointments are to be made by recruitment and
promotion in accordance with the percentages fixed for each method of
recruitment in the recruitment rules. The relative seniority of promotees and
direct recruits shall be determined by the dates on which the vacancies
reserved for the direct recruits and the promotees occur..." Though the
1949 Rules were published on September 17, 1949, they were brought into
operation by a notification of the Ministry of Defence dated July 29, 1950 with
effect from April 1st, 1951. 1949 Rules when enacted were admittedly
non-statutory in character.
By the notification dated July 18, 1953 of
the Ministry of Defence, the Rules styled as Military Engineer Service Class I
Recruitment Rules were promulgated. Rules 3 and 4 are in pari materia with
Rules 3 and 4 of the 1949 Rules.
Part II of the Rules makes detailed provision
for the competitive examination and the Rules in Part III deal with appointment
by promotion. It was not made clear whether the 1953 Rules superseded the 1949
Rules. They are almost identical save and except for a provision in Appendix V.
Para 3 in Appendix V of 1949 Rules provided
for inter se seniority of direct recruits and promotees, while para 3 in
Appendix V of 1953 Rules recited that 'the principles for determining seniority
are under consideration.' It is, therefore, suggested that para 3 in Appendix V
of 1949 Rules was abrogated and fresh principles for determining seniority were
yet to be devised. The contention arising from these two sets of Rules
occupying the same field would in course of time become worst confounded by
what has been done in 1969 but that would come later on.
948 Moving to the next stage, the Ministry of
Defence by its notification dated January 7, 1961 promulgated statutory Rules
enacted in exercise of the power conferred by the proviso to Article 309. These
Rules were to regulate the recruitment to the Military Engineer Services, Class
I? (1961 Rules for short). These Rules largely relate to the method to be
adopted for direct recruitment, the manner of holding examination and the
persons eligible for entrance to the examination. In a way 1961 Rules left
rules 3 and 4 of 1949 Rules and rules 3 and 4 of 1953 untouched, except to the
extent provided in para 8 of appendix lV wherein it is stated that promotions
to the Superior and Administrative posts are dependent on occurrence of
vacancies in the sanctioned establishment and are made wholly by selection in
consultation with the Departmental Promotion Committee and Commission as laid
down in the Home Department office memorandum No. 33/46-Ests(R) dated June
17th, 1946; mere seniority is considered to confer no claim to promotion.
Though these Rules are styled as Rules for
recruitment to Military Engineer Services, Class I, omits any reference to
recruitment by promotion is wholly absent yet Rule 3 in Appendix IV restated
the position that the principles for determining seniority are under
consideration. 1961 Rules do not even refer to 1949 Rules, but it may be
mentioned that 1961 Rules were superseded by 1962 rules.
In 1962, the Ministry of Defence by its
notification dated April 27, 1962 in exercise of the power conferred by the
proviso to Article 309 framed Rules regulating the recruitment to the Military
Engineer Services Class I in supersession of 1961 Rules. Both the 1961 and 1962
Rules neither refer to Rule 3 and Rule 4 of 1949 Rules permitting recruitment
by promotion and the permissible limit of recruitment by promotion. 1962 Rules
restated in Rule 3 in Appendix IV that the principles for determining seniority
are under consideration. Further para 8 in Appendix IV was repeated at the same
place as in 1961 Rules.
By the notification of Ministry of Defence
dated April 17, 1965 Rule 7 of 1962 Rules was amended. But it has no relevance
to the point under consideration. Then comes a noteworthy pro vision. Rule 3 in
Appendix IV of 1962 Rules which provided that 'the principles for determining
seniority were under consideration' was substituted as under:
"3. Relative seniority of officers
appointed to service on the basis of the combined Engineering Services 949
Examination or otherwise will be determined in accordance with the orders
issued by Government A from time to time." By the notification of the
Ministry of Defence dated February 18, 1967, a further amendment was introduced
in 1962 Rules with regard to the eligibility of persons who can offer
themselves as candidates for the competitive examination.
By the Ministry of Defence notification dated
February 25, 1967, non-statutory in character sub-rule (h) was added to Rule 20
in Part III of 1949 Rules providing reservation of 50% of the permanent
vacancies to be filled through direct recruitment after 17th May, 1963 of
graduate engineers who are commissioned in the Armed Forces on a temporary
basis during the Emergency and are later released subject to certain conditions
therein prescribed.
Then comes the land-mark change of 1969. On
February 1, 1969, the President in exercise of the power conferred by the
proviso to Article 309 framed and promulgated amendments to 1949 Rules styled
as Military Engineer Service Class I (Recruitment, Promotion and Seniority)
Amendment Rules, 1969 which came into force on February 1, 1969. Rule 4 was
amended by substituting '25' of the vacancies' in place of '10% of the
vacancies.' In other words, the quota between direct recruits and promotees was
modified from 9:1 to 3:1.
We may at this stage notice Army Instruction
241 of 1950. It provided for seniority of civilian employees in lower cadre.
The instruction refers to the order contained in para 2 of the Ministry of
Defence office Memorandum No.
0240/6362/0-12 dated 1st September 1949 which
was published as an annexure to the instruction. The instruction is that the
rule for determining seniority amongst Assistants recently devised must be
followed as a model. The model was that in any particular grade seniority as a
general rule, be determined on the basis of the length of service in that grade
- as well as service in an equivalent grade irrespective of whether the letter
was under the Central or Provincial Government in India or Pakistan.
Having journeyed through the maze of Rules,
we may turn to the primary contention raised in this appeal. Before we do so,
let 950 it be remembered that the appellant is a promotee to AEE in MES cl.I of
the year 1962 and by the impugned seniority list of June 14, 1974, he does not
find his place in the seniority list and is still in the surplus list to be
accommodated at a future date and Mr. Sanghi learned counsel for the appellant
asserted with some vehemence that he cannot come into the service till 1989 when
it may be time for him to retire from the service. In other words after having
rendered service in a post included in the class I, he is hanging outside the
service, without finding a berth in service, whereas direct recruits of 1976
have found their place and berth in the service. This is the situation that
stares into one's face while interpreting the quota-rota rule and its impact on
the service of an individual. But avoiding any humanitarian approach to the
problem, we shall strictly go by the relevant rules and precedents and the
impact of the Rules on the members of the service and determine whether the
impugned seniority list is valid or not. But, having done that we do propose to
examine and expose an extremely undesirable, unjust and inequitable situation
emerging in service jurisprudence from the precedents namely, that a person
already rendering service as a promotee has to go down below a person who comes
into service decades after the promotee enters the service and who may be a
schoolian, if not in embryo, when the promotee on being promoted on account of
the exigencies of service as required by the Government started rendering
service. A time has come to recast service jurisprudence on more just and
equitable foundation by examining all precedents on the subject to retrieve
this situation.
The contentions canvassed before the High
Court at the time of hearing this group of petitions are (i) what is the
character of '1949 Rules' when they were enacted and whether and when they
acquired statutory character ?; (ii) In making recruitment in the manner it was
done till '1949 Rules' acquired statutory character, was there a violation of
quota rule assuming that there was quota prescribed in Rule 4 of '1949 rules'
?, (iii) If Rule 4 of '1949 Rules' prescribed a quota of 9:1 between direct
recruits and promotees, had the Government the power to relax the quota rule
when necessary or under certain circumstances ?; (iv) What if any, is the
effect on the status of the promotees promoted to the service in relaxation of
the quota rule ?; (v) whether such promotees became the members of the service
so as to be assigned a place in the seniority list ?; (vi) If prior to '1949
Rules' acquiring statutory character in 1969 promotions were made in excess of
the quota, which principle 951 governed determination of inter se seniority of
later direct recruits with earlier promotees ?, (vii) If 1963 Seniority List
when drawn up was according to the Rules then in force, could it be rendered
ineffective by a revised rule for determining inter se seniority devised in
1974 and given retrospective effect. These and the connected questions call for
answer in this appeal.
We were often reminded in the course of
hearing that the Court is not scribbling on a clean slate and that some of the
contentions canvassed in this appeal are concluded by a decision of the
Constitution Bench of this Court in Bachan Singh & Anr. v. Union of India
& Ors.(1). It must be confessed that in Bachan Singh's case (supra),
various rules to which we have drawn attention in the earlier part of the
judgment came in for consideration by the Constitution Bench. Therefore, both
the sides extensively referred to the various observations and conclusions
recorded in the decision and it is incontrovertible that this decision is
binding on us and therefore, the contentions canvassed before us will have to
be answered within the parameters of the decision of the Constitution Bench. To
steer clear of a possible unintended transgression of this binding decision, it
is necessary to set out in some details the ratio of the decision of the
Constitution Bench in that case ? Bachan Singh and Anr. were promoted in the
years 1958 and 1959 respectively to AEE in MES (Class I Some of the respondents
in that case were appointed by direct recruitment after they had appeared in
the competitive examination, but all the respondents were appointed to the
service in the years 1962, 1963 and 1964. The first contention raised on behalf
of the promotee-appellants was that the recruitment of some respondents as
direct recruits not as the result of competitive examination as provided in the
Rules but by mere interview by the Union Public Service Commission was contrary
to and in violation of the relevant Rules and thus the recruitment being
invalid they did not become members of the service. It was said that if they
are not members of the service, they cannot claim seniority over promotees the
petitioners in that case. The second contention was that such of the
respondents who were recruited by interview and as a result of the competitive
examination after the appellants had been promoted to the service, are not
entitled to be confirmed in permanent posts before the appellants.
952 These contentions necessitated focussing
attention on the character A of ' 1949 Rules'. After briefly reviewing the
history of the rules from 1949 to 1969, the first important conclusion of the
Court is that the '1949 Rules' acquired statutory character in 1969 because as
a result of 1969 amendment! the entire body of rules of Class I became
statutory rules by incorporation. The Court then referred to rules 3 and 4 of '
1949 Rules' when they came into force in 1951 and noticed that the recruitment
to MES Class I could be made from two sources only, namely, by competitive
examination held in India in accordance with Part II of the Rules and by
promotion in accordance with Part III of the Rules. As set out in earlier
portion of the Judgment, Part II makes extensive provisions for holding
examination including the eligibility for admission to the same. It was
conceded in Bachan Singh's case that some of the respondents were directly
recruited by interview by the Union Public Service Commission. In other words,
some of the respondents in that case had not appeared at competitive
examination ar required by Rule 3. The rules did not permit direct recruitment
by mere interview by the Union Public Service Commission. The question arose:
What was the status of such direct recruits recruited in utter violation of
Rule 3 ? Promotee-petitioners contended that such direct recruits had not
become members of the service. Repelling this contention, the Constitution
Bench held as under:
"The appointments to Class I Service by
interview were made by the Government in consultation with the Union Public
Service Commission. The selection was made by the Union Public Service
Commission. The li appointments by competitive examination proved fruit less.
The country was in a state of emergency. Appoint- ment and selection by
interview was the only course possible. It could not be said that all
appointments should have been made by promotion. That would be not in the
interest of the service. The service Rules were administrative in character.
The Government relaxed the Rules. The amendments of the rules in 1967
recognised the reality of the situation of appointment by interview. That is
why the 1967 amendment recognised that 50 per cent of "the direct recruits
by competitive! ad hoc appointment were to be reserved for graduate engineers who
were commissioned in the Armed Forces on a temporary basis." 953 At an
earlier stage, the Court held that during the years 1962,1963 and 1964
particularly and until the year 1969, the Class I Service A Rules were not
statutory in character. The Union Government relaxed the Rules both in regard
to recruitment by interview and in regard to the quotas fixed by the Rules for
direct recruitment and recruitment by promotion to Class I Service. Keeping in
view the contention raised on behalf of the appellants before us that Rule 4
does not prescribe a quota to be invariably followed, but merely a ceiling and
the contention of Mr. P. R. Mridul for some of the direct recruits that rule 4
prescribes an invariable quota any violation of which would render the
appointees in excess of quota invalid, we would proceed as held in Bachan
Singh's case that rule 4 prescribes the quota. If the contention was open to
consideration by us, we have our own reservations about the same. However, as
it has been held in a binding decision that Rule 4 did prescribe a quota rule
of 9: 1 between direct recruits and promotees, we would proceed on that basis.
The Court then noticed that in 1962, there was a state of emergency. Engineers
were immediately required to fill the temporary posts in Class I Service. To
meet the emergency the Union Government in consultation with the Union Public
Service Commission decided to recruit candidates by advertisement and selection
by interview only by the Union Public Service Commission.
The Government with the aid of selection and
interview by the Union Public Service Commission directly recruited some
respondents to Class r Service in the years 1962, 1963 and 1964. The candidates
were selected after viva-voce examination.' The Court then proceeded to notice
the vacancies that occurred between 1951 and 1971 and concluded that it is
because of the conditions of emergency that the quota for filling the temporary
posts was ignored both for departmental promotees and direct recruitment. After
taking this view, the Court proceeded to answer the contention whether the
recruitment of some of the respondents in that case by a method not permitted
by rules was legal and valid which necessitated the Court considering and
answering the question as to whether the Government had the power to make
recruitment in relaxation of the Rules ? In this connection, the Court
categorically concluded as under:
"It is apparent that during the years
1959 to 1969, there was a relaxation in the observance of rules in the case of
appellants and the other departmental promotees. The Union Government all
throughout acted in consultation with the Union Public Service Commission.
The 954 departmental promotees gained
considerable advantage A by relaxation of the rules. The direct recruits were not
shown any preference at all, The proportion of confirmation of departmental
promotees and of direct recruits by interview was 1:1." The Court then
upheld the appointment of those direct recruits who were appointed after
interview by the Union Public Service Commission by holding that was done in
relaxation of the rules both as to competitive examination and the promotions
were given after relaxing the quota rule.
The Court held that direct recruits who were
appointed by interview fall within the class of direct recruits.
What emerges from the decision in Bachan
Singh's case? '1949 Rules' and the subsequent amendments thereto acquired
statutory flavour in 1969 and '1949 Rules became statutory in character by
incorporation only in 1969 and till then they were mere administrative
instructions. Rule 3 of '1949 Rules' permitted recruitment only from two
sources i.e. by competitive examination and by promotion. Rule 4 permitted the
Government to fill in any particular vacancies or such vacancies as may require
to be filled during any particular period, the method or methods to be employed
for the purpose of filling any particular vacancy and the number of candidates
recruited by each method. Rule 3 provides for the sources of recruitment,
namely, direct recruitment and promotion. Rule 4 confers discretion on the
Government either to fill the vacancies and from which service subject to the
proviso to Rule 4 which prescribes, according to Bachan Singh's case. a quota,
Rule 4 which was introduced in 1967 conferred power on the Union Government for
the reasons to be recorded in writing and after consultation with the Union
Public Service Commission to relax all or any of the rules with respect to
class or category of persons/ - posts.
As the '1949 Rules' were non statutory in
character till 1969 and this Court read power of relaxation is in ' 1949 Rules'
till 1969, the power of relaxation was exercised during 19611962-1963 because
there was emergency during this period. The Government was in need of large
number- of Engineers and therefore, had to make recruitment by a method not
prescribed by the rules in relaxation of the rules, and large number of persons
had to be given departmental promotion with the same end in view which would
amount to relaxation of the quota rule. This Court in terms 955 held that the
Government had the power to relax 1949 Rules till they acquired statutory
character in 1969 and Government did make recruitment from both sources after
exercising the power to relax rules. This ratio of the decision is binding on
us.
Even apart from this, in the statement of
case filed in this case on behalf of the Union of India, it is conceded that in
view of the exigencies of - service relaxation was made in the matter of
promotion to the cadre of Assistant Executive Engineers between 1951 and 1963.
Rule 24 enabled the Government to make recruitment in relaxation of the rule by
making an order to that effect in writing and after consulting the Union Public
Service Commission. Strictly speaking Rule 24 is hardly helpful as the rule was
introduced in 1967 and we are concerned with years 1959-61- 62-63. We asked Mr.
Abdul Khader, learned counsel for the Union of India whether orders were made
at the time of each recruitment for making recruitment by relaxing the rules
and if such orders were made after consulting the Union Public Service
Commission and if there are such orders in existence, same may be produced.
Pursuant to this querry, an affidavit was filed by Lt. Col. S. C. Sethi, Staff
officer Grade I (Personnel) dated December 7, 1982. This affidavit does not
satisfy the query and hardly illumines. the blurred area. It merely refers to
the variation in the quota, namely, it was raised from 9:1 to 1:1 upto the end
of 1963 and it was again restored to 9:1 after 1964 and the statutory rules of
1969 revised the quota. To this Affidavit, some correspondence is annexed which
hardly throws any light on the question raised by the Court.
If rule 3 provided methods of recruitment
indicating the sources from which recruitment could be made and if rule confers
discretion on Government to make recruitment from either source because Rule 4
opens with a limitation, namely, that it is subject to Rule 3, now if as held
in Bachan Singh's case 1949 Rules' while prescribing the quota conferred power
on the Union Government to make recruitment in relaxation of the rules, it is
implicit in this power to G make recruitment in relaxation of the quota rules
and it is admitted that because of the emergency and because of the exigencies of
service, recruitment was made in relaxation of the rules. Now, where the rule
provides for recruitment from two sources and simultaneously prescribes quota,
unless there is power to relax the rule as has been held in a catena decisions,
any recruitment in excess of the quota from either of the sources would be
illegal and the excess recruits unless they find their place by adjustment in
subsequent 956 years in the quota, would not be members of the service. In A s.
G. Jai Singhani v. Union of India & ors(l) a Constitution Bench of this
Court held as under.
"We are accordingly of the opinion that
promotees from Class II, Grade III, to class I Grade II Service in excess of
the prescribed quotas for each of the years 1951 to 1956 and onwards have been
illegally promoted and the appellant is entitled to a writ in the nature of
mandamus commanding respondents 1 to 3 to adjust the seniority of the appellant
and other officers similarly placed like him and to prepare a fresh seniority
list in accordance with law after adjusting the recruitment for the period 1951
to 1956 and onwards in accordance with the quota rule prescribed .. ' In
reaching this conclusion, the Court held that the absence of arbitrary power is
the first essential of the rule of law upon which our whole constitutional
system is based. The Court observed that in a system, governed by rule of law,
discretion, when conferred upon executive authorities, must be confined within
clearly defined limits.
The view was to some extent re-affirmed in B.
S. Gupta v. Union of India & ors.(a) and B. S. Gupta etc. etc. v. Union of
India & Ors. etc. etc.(3) But this result will not follow where even though
the rules prescribe sources of recruitment, methods of recruitment and quota,
if the very rules simultaneously confer power on the Government to make
recruitment in relaxation of the rules, unless mala fides are alleged and
attributed. Where rules thus confer a discretion on the Government to relax the
rules to meet with the exigencies of service, any recruitment made in
relaxation of the rules would not be invalid. This is no more res integra in
view of the decision of this Court in N.
K. Chauhan & ors. v. State of Gujarat
& ors.(1) In that case, a resolution of the Government of Bombay dated July
30, 1959 'directing that, as far as practicable, 50 percent of the substantive
vacancies occurring in the cadre with effect from 1st January 1959 should be
filled in by nomination of candidates to be selected in accordance with the
Rules appended 957 herewith, came in for consideration of this Court. "The
contention was that the Resolution prescribed a quota and the Government had no
discretion to make recruitment in relaxation of the quota and therefore, any
recruitment made in excess of the quota in view of the decision in
Jaisinghani's case and 2 B.S. Gupta's cases would be invalid. Repelling this
contention and distinguishing both the decisions in Jaisinghani's case and 2
B.S. Gupta's cases, the Court observed that the sense of the rule is that as
far as possible the quota system must be kept up and if not practicable
promotees in place of direct recruits or direct recruits in place of promotees
may be inducted applying the regular procedures without suffering the seats to
lie indefinitely vacant.' After examining the facts of the case, the Court held
that the State had tried as far as practicable to fill 50% of the substantive
vacancies from the open market, but failed during the years 1960-1962 and that
therefore it was within its powers under the relevant rule to promote
mamlatdars who, otherwise, complied with the requirement of efficiency. It thus
becomes crystal clear that when recruitment is from two independent sources,
subject to prescribed quota, but the power is conferred on the Government to
make recruitment in relaxation of the rules, any recruitment made contrary to
quota rule would not be invalid unless it is shown that the power of relaxation
was exercised mala fide. That is not the contention here, nor any such
contention was voiced in Bachan Singh's case.
In Bachan Singh's case the Court has
extensively referred to the emergency situation in the market of recruitment of
engineers between 1959 and 1969 and that fact situation not only was not
controverted but conceded before us. It is this emergency and the dire need of
urgently recruiting engineers, which led the Government to make recruitment in
relaxation of quota rule by fore-going the competitive examination and
promoting subordinate ranks to Class I service. Petitioners and similarly
situated persons were thus promoted to meet the dire need of service in
relaxation of the quota rule.
Now if recruitment contrary to Rule 3,
namely, by interview by the Union Public Service Commission, which is not the
recognised mode of recruitment, is held valid in Bachan Singh's case on the
ground that it was done in relaxation of the rules, it must follow as a
corollary that the same emergency compelled the Government to recruit by
promotion engineers to the post of AEE Class I in excess of the quota by
exercising the power of relaxation and such recruitment ipso facto would be
valid. The promotees being validly 958 promoted as the quota rule was relaxed,
would become the members of the service. Whether the vacancies were in the
permanent strength or in the temporary cadre is irrelevant because none of them
is reverted on the ground that no more vacancy is available. Appellant and
those similarly situated were recruited by promotion as provided in Rule 3(ii)
and it must be conceded that the recruitment by promotion during these years
was in excess of the quota as provided in Rule
4. But the recruitment having been done for
meeting the exigencies of service by relaxing the rules including the quota
rule, the promotion in excess of quota would be valid.
In this connection, it may be recalled that
the expression 'service' has been defined to mean Military Engineering Service
Class I. The rules are silent on the question of the strength of the service.
Keeping in view the exigencies of service and the requirements of the State,
temporary posts would be a temporary addition to the strength of the cadre,
unless it is made clear to the contrary that the temporary posts are for a
certain duration or the appointments to temporary posts are of an ad hoc nature
till such time as recruitment according to rules is made. In the absence of any
such provision, persons holding permanent posts and temporary posts would
become the members of the service provided the recruitment to the temporary
posts is legal and valid. Once the recruitment is legal and valid, there is no
difference between the holders of permanent posts and temporary posts in so far
as it relates to all the members of the service. This clearly follows from the
decision of this Court in S. B. Patwardhan & ors. etc. etc. v. State of
Maharashtra ors.,(') that there is no universal rule, either that a cadre
cannot consist of both permanent and temporary employees or that it must
consist of both. That is primarily a matter of. rules and regulations governing
the particular service in relation to which the question regarding the
composition of a cadre arises. '1949 Rules' throw no light on this aspect and
therefore, if the recruitment is made from either of the sources and is
otherwise legal and valid, persons recruited to temporary. posts would
nonetheless be members of the service.
The High Court while rendering the judgment
under appeal unfortunately did not examine this aspect even though vehemently
argued, with the result that the petitions were again set down for decision on
a memo filed by the learned counsel on behalf of the 959 present appellants in
the High Court on the very next day of the judgment informing the Court that
several important contentions A urged by him during the course of arguments at
the hearing of the writ petitions, have not been noticed by the Court in its
judgment dated May 15, 1979. One such contention was that Union of India In its
statement of case had conceded that as direct recruits were not available
during that period, even though the qualification of competitive examination
for direct recruits was completely relaxed and a mere interview by the Union
Public Service Commission was considered sufficient, large number of persons
from subordinate ranks had to be given promotion but this aspect was not
examined by the Court. Repelling this submission, the High Court observed that
the learned counsel was not able to point out any express admission to that
effect in the statement of objections filed on behalf of the Union Government
and the averment in Exhibit 'F' that there has been a relaxation from time to
time in the observance of the said rules by the Government in consultation with
Union Public Service Commission to meet the emergent requirements of the
Service, was not sufficient to permit an inference sought to be drawn as
desired by the learned counsel. With respect, the High Court was in error in
approaching the matter from this angle. In fact, before the High Court rendered
its decision, the Judgment of the Constitution Bench in Bachan Singh's case was
reported and as pointed out by us, this Court specifically held that the
recruitment from both the services was made in relaxation of the rules And in
the statement of case filed in this Court, there is a specific admission to
that effect. We are therefore of the view that the High Court was in error in
rejecting this contention The next question is, on what principle then in force
inter se seniority of promotees and direct recruits recruited to service in
relaxation of 1949 Rules including the quota rule was to be determined and how
they were to be integrated in the cadre of AEE for further promotion to the
cadre of Executive Engineers.
The appellant has impugned the seniority list
prepared by the Union Government on June 14, 1974. Prior to the impugned
seniority list, a seniority list of AEE was drawn up in the year 1963 in which
the place of the present appellant was at serial No. 357. There was another
seniority list drawn up in the year 1967 in which the appellant found his place
at serial No. 234. Then came the decision of the Constitution Bench in Bachan
Singh's case whereupon 960 the Union Government set aside the two
aforementioned seniority A list and drew up a fresh list on the criteria drawn
from the decision in Bachan Singh's `case as set out in the earlier portion of
this Judgment. In this seniority list, appellant did not find his place because
he was still surplus in 1974 seniority list and he was hanging out of the
service (Trishanku) because he was pushed down after applying the quota from
the date of the constitution of the service itself in 1951. The traumatic
effect of this approach can be gauged by merely pointing out that the appellant
who was promoted in the year 1962 as AEE and has held the post un-interruptedly
till today would be junior to the direct recruits of 1976,1977 and 1978. If
unfortunately, the law is to that effect, nothing can be done. Could the law be
that unjust ? Law being no respector a person must take its own course. But is
that the law ? or the approach overlooks a vital aspect which has a bearing on
the point.
The contention of the Union Government is
that the earlier seniority lists of 1963 and 1967/68 were not drawn up
according to any particular principle. In para 4 of the statement of the case
of the Union Government it is averred that 'seniority list drawn before 1973
were not based on any set rules but were prepared provisionally on the basis of
the then available rules to regulate the functioning of department.' This
statement apart from being self contradictory to some extent, is misleading and
would not be borne out by reference to the relevant rules on the subject.
It is a well recognised principle of service
jurisprudence that any rule of seniority has to satisfy the test of equality of
opportunity in public service as enshrined in Article 16. It is an equally well
recognised canon of service jurisprudence that in the absence of any other
valid rule for determining inter se seniority of members belonging to the same
service, the rule of continuous officiation or the length of service or the
date of entering in service and continuous uninterrupted service thereafter
would be valid and would satisfy the tests of Art. 16. However, as we would
presently point out we need not fall back upon this general principle for
determining inter se seniority because in our view there is a specific rule
governing inter se seniority between direct recruits and promotees in MES Class
I Service, and it was in force till 1974 when the impugned seniority list was
drawn up.
961 In the '1949 Rules' which came into force
on April 1, 1951, a provision was made for determining inter se seniority
between A direct recruits and promotees. In para 3(iii) of Appendix-V of '1949
Rules' it was provided that a roster shall be maintained indicating, the order
in which appointments are to be made by direct recruitment and promotion in
accordance with the percentages fixed for each method of recruitment in the
recruitment rules. The relative seniority of promotees and direct recruits shall
be determined by the dates on which the vacancies reserved by the direct
recruits and the promotees occur. It would appear at a glance that this rule
was related to the quota of 9:1 between direct recruits and promotees
prescribed in rule 4.
A combined reading of rule 4 and para 3(iii))
of Appendix V would clearly show that a roster has to be maintained consistent
with the quota so that the relative inter se seniority of promotees and direct
recruit be determined by the date on which vacancy occurred and the vacancy is
for the direct recruit or for the promotee. If quota prescribed by rule 4 was
adhered to or was inviolable, the rule of seniority enunciated in para 3(iii)
of Appendix V will have to be given full play and the seniority list has to be
drawn in accordance with it. But as pointed out by this Court in Bachan Singh's
case during the years 1959, 1969 and especially during 1962, 1963 and 1964 on
account of adverse market conditions for recruitment of engineers, the
Government had to be make recruitment in complete relaxation of rules 3 and 4
including the relaxation of the quota rule.
As quota rule was directly inter-related with
the seniority rule, and once the quota rule gave way, the seniority rule
enunciated in para 3(iii) of Appendix V became wholly otiose and ineffective.
It is equally well recognised that where the quota rule is linked with the
seniority rule if the first breaks down or is illegally not adhered to giving
effect to the second would be unjust, inequitous and improper. An identical
situation was noticed by this Court in First B. S. Gupta's case wherein this
Court while rejecting the contention of the promotees that the quota rule and
the seniority rule deserved to be independent of each other held that with the
upgrading of the large number of posts and the appointments to them of
promotees, the quota rule collapsed and with that the seniority rule also.
Therefore, once the quota rule was wholly
relaxed between 1959 and 1969 to suit the requirements of service and the
recruitment made in relaxation of the quota rule and the minimum qualification
rule for direct recruits is held to be valid, no effect can be given to the
seniority rule enunciated in para (iii), which was wholly inter-linked with the
quota rule and cannot 962 exist apart from it on its own strength. This is
impliedly accepted A by the Union Government and is implicit in the seniority
lists prepared in 1963 and 1967-68 in respect of AEE. because both those
seniority lists were drawn up in accordance with the rule of seniority
enunciated in Annexure 'A' to Army Instruction No. 241 of 1950 dated September
1, 1949, and not in compliance with para 3(iii) of Appendix v.
The Ministry of Defence issued Army
Instruction No. 241 of 1950 styled as 'Seniority of civilian employees in lower
formations', which provides that in accordance with the orders contained in
para 2 of Ministry of Defence O.M.No.
0240/6362/D-12 dated September 1,1949
published as Annexure 'A' to this instruction, seniority of persons employed in
a particular grade is to be determined as indicated herein.
Annexure 'A' reproduced the rule of seniority
which was then followed as a model in the grade of Assistant which had been
adopted by the Ministry of Defence. The principle of seniority therein
enunciated is that the rule for determining inter se seniority in the cadre of
Assistants should generally been taken as the model in framing the rules of
seniority for other services and in respect of persons employed in any
particular grade seniority should as a general rule, be determined on the basis
of the length of service in that grade as well as service in an equivalent
grade irrespective of whether the latter was under the Central or Provincial
Government in India or Pakistan. This was the rule of seniority which would be
applicable in the absence of any other rule specifically enacted for MES class
I service. It could have been urged with confidence that the seniority rule
enunciated in part 3(iii) of Appendix V of '1949 Rules' was the one
specifically enacted for MES Class I service and the special rule would prevail
over the general rule issued in Army Instruction No. A.I. 241 of 1950. But as
pointed out earlier, the rule in para 3(iii) of Appendix V gave way when the
quota rule was relaxed. This is recognised by the Ministry of Defence when
while enacting '1953 Rules', a provision was made in para 3 of Appendix v that
the principles for determining seniority are under consideration. Assuming that
the rule of seniority of para 3(iii) of Appendix V of '1949 Rules' held the
field, it appears to have been abrogated by the '1953 Rules' because a clear
provision is made that principles for determining seniority are under
consideration. Similar situation is recognised in '1961 Rules' which to some
extent imparted a statutory flavour to '1949 Rules'. In para 3 of Appendix IV
of '1961 Rules' it was stated that principles for determining seniority of 963
members of the service meaning Military Engineer Services Class I are under
consideration. This position was reiterated when '1962 A Rules' were enacted in
relation to the service. In Para 3 of Appendix IV of '1962 Rules' it is
reiterated that the principles for determining seniority are under
consideration. It is nowhere suggested that till the decision in Bachan Singh's
case, any other rule for determining inter se seniority was prescribed.
That takes us to the impugned seniority list
of 1974.
On June 14, 1974, seniority list of AEE was
circulated. The preamble to the seniority list sets out the criteria on which
inter se seniority of members is determined. Amongst other things, it states
that the inter se seniority of direct recruits and departmental promotees is to
be fixed in accordance with the quota laid down in '1949 Rules' which came into
force on April 1, 1951. It further recites that the same rule for determining
seniority list is to be applied in both the matter of confirmation and fixation
of seniority. Therefore, it clearly transpires that the seniority list is drawn
up on the basis of fixed quota as enunciated in rule 4, that is, 9:1 direct
recruit, promotee, revised between 1959 and 1963 to 1:1 and again restored to
9:1 from 1964. The 1974 seniority list would be without anything more invalid,
as it proceeds on the assumption that there was a rigid quota rule and that the
recruitment in excess of the quota would be invalid and the excess recruits
from either source will have to be adjusted and regularised in succeeding
years. Probably, the authorities concerned while drawing up the seniority list
were influenced by some of the observations in Jaisinghani's case and the two
successive B. S. Guuta's cases, all of which were clearly distinguishable and
will have no application to the facts of the present case. Another error that
has crept in prescribing the criteria on which the impugned 1974 seniority list
is founded, is the assumption that there was an inviolable quota rule which
could not be relaxed. The second criterion recites that seniority list of
Assistant Executive Engineers is to be prepared upto 1968 and excess
departmental promotees who cannot be brought into the cadre have to be shown
separately and brought into the cadre on the basis of quota as and when
vacancies become available.
As clearly brought out hereinbefore, the
recruitment was made in relaxation of the quota. Once the quota rule was
relaxed, the rota for confirmation disappeared. In the absence of any other
rule coupled with the Army Instruction upto 1968 continuous officiation would
be the only available rule for determining the inter se seniority. And it may
be recalled that 964 both the 1963 and 1967 seniority lists were drawn up in
accordance A with that principle. Thus the two fundamental basic assumptions on
which the impugned seniority list was drawn up are wholly invalid and contrary to
the relevant rules, and any seniority list based thereon must fail. But this
conclusion alone would leave the matter again in the hands of the first
respondent with a fresh exercise. It is therefore necessary to proceed further
and determine on what basis the seniority list of AEE was to be drawn up upto
1969, when the '1949 Rules' became statutory according to the decision in
Bachan Singh's case.
Between 1959 and 1969 and especially during
the years 1962, 1963 and 1964 and some subsequent years, the Government
consistent with its requirements and exigencies of service made recruitment
including recruitment by promotion in relaxation of the '1949 & subsequent
rules' which the Government undoubtedly had the power to do. A good number of
persons were so promoted. The direct recruits enjoyed comparatively greater
benefit in that they entered service avoiding a competitive examination, which
the re required to be held and through which alone direct recruits could enter
service. Equally a good number of persons entered MES Class I through the
comparatively easy and highly subjective test, namely, interview. Therefore, it
cannot be gainsaid that a considerable number of direct recruits derived the
advantage of the power of relaxation of rules exercised by the Union
Government. In Bachan Singh's case, this Court also has rightly observed that
some depart- mental promotees also obtained advantage of the same. It is not
necessary for us to consider comparative advantage. The supervening
consideration was the exigencies of service of which the best judge, as
recognised in Bachan Singh's case, is the Government. It may also be made clear
that the promotees were not less qualified then direct recruits. They have to
meet the same rigorous test of qualifications save and except the qualification
as to age. This becomes abundantly clear from para 3 of rule 23 of '1949 Rules'
which provided for appointment by promotion. Rule 23 provided that 'no
individual shall be eligible for promotion to the service unless he would, but
for age, be qualified for admission to the competitive examination under Part
II of these Rules, and satisfies the Commission that he is in every respect
suitable for appointment to the service.' Part II contains provisions
prescribing eligibility criteria for taking the competitive examination.
Amongst others, it provided minimum educational qualification of an Engineering
degree.
965 Therefore, as for as the minimum
educational qualification is concerned, promotees and direct recruits are on
par. One need not therefore, look upon promotees as persons belonging to an
inferior breed. The promotees were promoted by the Government to man its
services keeping in view the exigencies of service and non-availability of
direct recruits as held in Bachan Singh's case and as admitted before us. And
while giving promotion, it was not even for a moment suggested that the
promotions are ad hoc or till such time as direct recruits are available or for
a limited period. Therefore, the promotions were regular promotions, may be to
the temporary posts which was a temporary addition to the strength of the
service. But to all intents and purposes, the promotion of the promotees during
this period was a regular promotion and the promotees have held the posts
uninterruptedly for all these years meaning thereby that it could never be said
that posts were not available.
Even then by the impugned seniority list,
1962 promotee is hanging, outside the cadre and the list drawn up on such an
illegal and invalid criteria has led to such a startling result that is 1962
promotee does not find his berth in service even in 1974.
The next question is whether 1963 seniority
list and 1967 seniority list were valid when drawn up. As pointed out earlier,
the rule of quota enunciated by para 3(iii) of Appendix V of '1949 Rules' has
ceased to be of any legal efficiency till 1969. The Army Instructions of
September 1, 1949 directed seniority list to be drawn up in accordance with the
principle of continuous officiation. In the absence of any other valid
principle, seniority determined on the basis of continuous officiation is valid
because it satisfies the test of Art. 16. There is nothing to suggest that 1963
and 1967 seniority lists were provisional or were likely to be re-drawn.
Therefore till the 1949 Rules acquired statutory character in 1969, the
seniority lists of 1963 and 1967 in respect of AEE were quite legal and valid
and were drawn up on the basis of the principle which satisfies the test of
Article 16.
The question is whether a new principle for
determining inter se seniority evolved in 1974 could be retrospectively applied
from 1951 thereby setting at naught all previous seniority lists validly drawn
up. It is open to the Government to prescribe principles for determining inter
se seniority of persons belonging to the same service or cadre except that any
such principle must meet the test of Art.
16. It is equally open to the Government to
retrospectively 966 revise service rules, if the same does not adversely affect
vested A rights. But if the rule for determining inter se seniority is revised
or a fresh rule is framed, it must be constitutionally valid. The criteria on
which 1974 seniority list is founded are clearly illegal and invalid and this
stems from a misunderstanding and misinterpretation of the decision of this
Court in Bachan Singh's case. It also g overlooks the character of the
appointments made during the period 1959 to 1969. It treats valid appointments
as of doubtful validity. It pushes down persons validly appointed below those
who were never in service and for reasons which we cannot appreciate, it is
being made effective from 1951.
In our opinion, there was no justification
for redrawing the seniority list affecting persons recruited or promoted prior
to 1969 when the rules acquired statutory character.
Therefore, the 1974 seniority list is liable
to be quashed and the two 1963 and 1967 seniority lists must hold the field.
At this stage, we must briefly deal with some
technical contentions of minor importance.
It was contended that those members who have
scored a march over the appellant in 1974 seniority list having not been
impleaded as respondents, no relief can be given to the appellants. In the writ
petition filed in the High Court, there were in all 418 respondents. Amongst
them, first two were Union of India and Engineer-in-Chief, Army Headquarters,
and the rest presumably must be those shown senior to the appellants. By an
order made by the High Court, the names of respondents 3 to 418 were deleted
since notices could not be served on them on account . Of the difficulty in
ascertaining their present addresses on their transfers subsequent to the
filing of These petitions.
However, it clearly appears that some direct
recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and
had made the submissions on behalf of the directs. Further any application was
made to this Court by 9 direct recruits led by Shri T. Sudhakar for being
impleaded as parties, which application was granted and Mr. P. R. Mridul,
learned senior counsel appeared for them. Therefore, the case of direct
recruits has not gone unrepresented and the contention can be negatived on the
short ground. However, there is a more cogent reason why we would not
countenance this contention. In this case, appellant does not claim seniority
over particular individual in the background of any particular fact
controverted by that person against whom the claim is made. The contention is
that criteria adopt- 967 ed by the Union Government in drawing-up the impugned
seniority list are invalid and illegal and the relief is claimed against the
Union Government restraining it from upsetting or quashing the already drawn up
valid list and for quashing the impugned seniority list. Thus the relief is
claimed against the Union Government and not against any particular individual.
In this background, we consider it unnecessary to have all direct recruits to
be impleaded as respondents. We may in this connection refer to General
Manager, South Central Railway, Secunderabad & Anr. etc. v. A.V.R. Sidhanti
and ors. etc.(l) Repelling a contention on behalf of the appellant that the
writ petitioners did not implead about 120 employees who were likely to be
affected by the decision in this case, this Court observed that the respondents
(original petitioners) are impeaching the validity of those policy decisions on
the ground of their being violative of Arts. 14 and 16 of the Constitution. The
proceedings are analogous to those in which the constitutionality of a statutory
rule regulating the seniority of government servants is assailed. In such
proceedings, the necessary parties to be impleaded are these against whom the
relief is sought, and in whose absence no effective decision can be rendered by
the Court. Approaching the matter from this angle, it may be noticed that
relief is sought only against the Union of India and the concerned Ministry and
not against any individual nor any seniority is claimed by anyone individual
against another particular individual and therefore, even . if technically the
direct recruits were not before the Court, the petition is not likely to fail
on that ground. The contention of the respondents for this additional reason
must also be negatived.
Appellant had also sought a discretion for quashing
the penal for promotion dated January 13, 1975 of 102 officers included in F
E-in-Cs Proceedings No. 65020/EE/74/EIR on the ground that the panel for
promotion is drawn up on the basis of impugned seniority list, in which the
appellant and several similarly situated AEE promoted way back in 1962 onwards
did not find their place and were therefore not treated as being within the
zone of selection. This relief must follow as a necessary corollary because
once 1974 seniority list is quashed and consequently a declaration is being
made that 1963 and 1967 seniority lists were valid and cannot be set at naught
by principles of seniority determined in 1974, any panel drawn up on the basis
of the invalid seniority must fall and must be quashed.
968 Pursuant to an integrated reading of
Judgment in Bachan Singh's case and this case a fresh panel for promotion will
have to be drawn up consistent with the seniority list of 1963 & 1967
because it was not disputed that promotion from the cadre of AEE to Executive Engineer
is on the principle of seniority-cum-merit. It may be mentioned that the
appellant had sought interim relief by way of injunction restraining the
respondents not to promote anyone on the basis of the panel. This Court
declined to grant such relief because exigencies of service do demand that the
vacancies have to be filled. But in order to protect the interest of the
appellant and those similarly situated, it was made abundantly clear that any
promotion given subsequent to the date of the filing of the petition in the
High Court must be temporary and must abide by the decision in this appeal.
Therefore, consequent upon the relief being
given in this appeal, the promotions will have to be readjusted and the case of
appellant and those similarly situated will have to be examined for being
brought on the panel for promotion..
Before we conclude this judgment, we will
have qualm of conscience if we do not draw attention to a very unjust, unfair
and inequitable situation having a demoralising effect on public services
probably ensuing from certain rules framed by the Government and the decisions
of this Court. Even where the recruitment to a service . is from more than one
source and a quota is fixed for each service, yet more often the appointing
authority to meet its exigencies of service exceeds the quota from the easily
available source of promotees because the procedure for making recruitment from
the market by direct recruitment is long prolix and time consuming. The
Government for exigencies of service, for needs of public services and for
efficient administration, promotees person easily available because in a
hierarchical service one hopes to move upward.
After the promotee is promoted, continuously
renders service and is neither found wanting nor inefficient and is discharging
his duty to the satisfaction of all, a fresh recruit from the market years
after promotee was inducted in the service comes and challenges all the past
recruitments made before he was born in service and some decisions especially
the ratio in Jaisinghani's case as interpretted in two B. S. Gupta's cases
gives him an advantage to the extent of the promotee being preceded in
seniority by direct recruit who enters service long after the promotee was
promoted. When the promotee was promoted and was rendering service, the direct
recruit may be a schoolian or college going boy. He emerges from the
educational insti- 969 tution, appears at a competitive examination and starts
challenging everything that had happened during the period when he has had
nothing to do with service. A mandamus issued in Jaisirlghani's case led to a
situation where promotees of the year 1962 had to yield place to direct
recruits of 1966 and the position worsoned thereafter. In the case in hand,
appellant a promotee of September 27, 1962 is put below N. K. Prinza who
appeared at competitive examination in April 1976 i.e. One who came 14 years
after the appellant, and it does not require an intelligent exercise to reach a
conclusion that 14 years prior to 1976 Mr. Prinza who is shown to be born on
July 20, 1950 must be aged about 12 years and must have been studying in a
primary school. Shorn of all service jurisprudence jargon one can bluntly
notice the situation that a primary school student when the promotee was a
member of the service, barged in and claimed and got seniority over the
promotee. If this has not a demoralising effect on service one fails to see
what other inequitous approach would be more damaging. It is therefore, time to
clearly initiate a proposition that a direct recruit who comes into service
after the promotee was already unconditionally and without reservation promoted
and whose promotion is not shown to be invalid or illegal according to relevant
statutory or non-statutory rules should not be permitted by any principle of
seniority to score a march over a promotee because that itself being arbitrary
would be violative of Arts. 14 and 16. Mr. Ramamurthi, learned counsel for some
of the direct recruits in this connection urged that if at the time when the
promotee was recruited by promotion, his appointment/promotion was irregular or
illegal and which is required to be regularised, any subsequent direct recruits
coming in at a later date can seek relief and score a march over such irregular
and illegal entrant. We find it difficult to subscribe to this view. Though we
have dwelt at some length on this aspect any enunciation of general principle
on the lines indicated by us would require a reconsideration of some of the
decisions of this Court. We say no more save that we have solved the riddle in
this case in accordance with the decisions of this Court and interpretation of
relevant rules.
Accordingly, this appeal must succeed and is
hereby allowed. The judgment of the High Court dated May IS/17, 1979 is set
aside and the writ petition filed by the appellant in the High Court to the
extent herein indicated is accepted. Let a writ of certiorari be issued
quashing and setting aside the seniority list dated June 14, 1974. It is
further hereby declared that the seniority lists of 1963 and 970 1967/68 were
valid and hold the field till 1969 and their revision can be made in respect of
members who joined service after 1969 and the period subsequent to. 1969. The
Panel for promotion in respect of 102 officers included in E-in-C's proceedings
No. 65020/EE/741/EIR dated January 13, 1975 is quashed and set aside. All the
promotions given subsequent to the filing of the petition in the High Court are
subject to this decision and must be readjusted by drawing up a fresh panel for
promotion keeping in view the 1963 and 1967/68 seniority list of AEE in the
light of the observations contained in this judgment.
In the circumstances of the case, there will
be no order as to costs.
S.R. Appeal allowed.
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