Narendra
Nath Pandey & Ors Vs. State of U.P. & Ors [1988] INSC 180 (21 July 1988)
Misra
Rangnath Misra Rangnath Dutt, M.M. (J)
CITATION:
1988 AIR 1648 1988 SCR Supl. (1) 574 1988 SCC (3) 527 JT 1988 (3) 101 1988
SCALE (2)37
ACT:
Civil
Services: Uttar Pradesh Non-Technical (class Il) Services (Reservation of
vacancies for demobilised officers) Rules 1973/U.P. Non-Technical (class ll/Group
B) Services (Appointment of Demobilised officers) Rules, 1980-Rules 1, 3 and
6/Rule 5-Demobillsed officers from armed forces recruited in Civil
Service-Seniority-Period between demobilisation and recruitment to Civil
Service-Computation of.
HEAD NOTE:
The
appellants have been appointed in the U.P. Civil Service as direct recruits on
the basis of competitive examination held by the U.P. Service Commission. They
are governed by the U.P. Civil Service (Executive Branch) Rules, 1941. The
respondents were recruited under the U.P. Non- Technical (Class-II) Services
(Reservation of Vacancies for Demobilised officers) Rules, 1973 and/or U.P.
Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised
officers) Rules, 1980. They were either Emergency Commissioned officers or
Short Service Commissioned Officers of the armed forces. They were demobilised
from the armed forces in or about 1968. In order to rehabilitate such persons
who rendered services to the country during the operation of the emergency when
the nation's security was in peril due to aggression, the 1973 Rules were
framed under the proviso to Art. 309 of the Constitution of India.
In
1976, a seniority list was prepared showing the respondents as seniors to the
appellants on the basis of their service in the armed forces and the gaps
between their discharge and recruitment in civil service. Similar list was
prepared in 1980 as well. Aggrieved by this, the appellants moved two writ
petitions before the High Court challenging the validity of the 1973 Rules as
also the 1980 Rules. The High Court held that these Rules were legal and valid
and upheld the validity of the impugned seniority list. These two appeals by
special leave are against the High Court judgment.
On
behalf of the appellants, it was contended that the High 575 Court's
interpretation of Rule 6 of the 1973 Rules relating to seniority and pay was in
excess of the relief intended to be granted by the rule. It was also urged that
when a candidate who was in the armed forces joined civil service, the
assumption should be that he had entered the civil service at the second
opportunity of competing for the recruitment, but no other period including
that between the discharge and recruitment would be taken into account for the
purpose of computing his seniority.
The
contention of the Respondents was that since only ten per cent of the vacancies
were reserved for war service candidates, it was difficult for them to get a
chance within a reasonable time after their discharge from war service and it
would be quite consistent with rules of natural justice to take into account
the interregnum between the date of discharge and the date of recruitment in
civil service.
Allowing
the appeals, this Court, ^
HELD:
1.1. The High Court was right in holding that the 1973 Rules as also the 1980
Rules are quite legal and valid.
However,
under Rule 6 of the 1973 Rules or Rule 5 of the 1980 Rules, only a reasonable
period of three years for taking the examination and the time taken for
recruitment or posting would be taken into consideration for the purpose of
computing seniority and pay. [582D-E]
1.2.
Under Rule 6 of the 1973 Rules, the recruitment of a war service candidate will
be assumed to have been made in the year in which he had the second opportunity
of competing for such recruitment, the first being on attaining the minimum age
to compete. It does not provide for the period between demobilisation and
recruitment of a war service candidate in the civil service. Nor does it forbid
consideration of such period. It cannot, however, he denied that after the
discharge from war service, there will be some lapse of time for the
recruitment of a candidate in the Provincial Civil Service. There is a question
of competing in the examination. Though Rule 6 does not provide for any gap to
be taken into consideration, it is apparent that some reasonable period has to
be allowed to a candidate to enable him to avail himself of the opportunity of
appearing at the competitive examination for recruitment in the Provincial
Civil Service. Competitive examinations are generally difficult and at least
two years' time should be allowed to a candidate, after his discharge, for his
preparation for the competitive examination and that will be his first
opportunity. The second opportunity will arise in the next year, that is, in
the third year 576 of his discharge from the armed forces. In other words, he
should be allowed three years for competing in the relevant examination for
recruitment in the civil service. Apart from the three years, the period of
time taken for recruitment or posting will also be taken into consideration for
the purpose of computing the seniority of a war service candidate. [580H;
581C-H]
1.3.
If, however, a candidate does not avail himself of the opportunity within three
years of his discharge from war service or takes the examination but becomes
unsuccessful, the period between his discharge and subsequent recruitment will
not be taken into account for the purpose of computing the seniority. [582C]
[This Court set aside the judgment of the High Court relating to the
interpretation of Rule 6 of the 1973 Rules, quashed the seniority lists of 1976
and 1980, and directed the State of U.P. to prepare the seniority list within
six months in the light of this judgment.] [582F-G]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 973-74 of 1985.
From
the Judgment and order dated 15.7.1983 of the Allahabad High Court in Writ
Petition Nos. 3532 of 1979 & 357 of 1981.
Dr.
L.M. Singhvi, K.R. Nagaraja, R.S. Hegde and C. Mukhopadhyay for the Appellants.
A.D.
Singh, Mrs. S. Dikshit, A.K. Gupta, Raju Ramachandaran and B.S. Chauhan for the
Respondents.
Subhash
Chandra, Respondent No. 34 in person.
The
Judgment of the Court was delivered by DUTT, J. These two appeals by special
leave involve the interpretation of the Uttar Pradesh Non-Technical (Class-II)
Services (Reservation of Vacancies for Demobilised officers) Rules, 1973,
hereinafter referred to as 'the 1973 Rules', and the Uttar Pradesh
Non-Technical (Class-II/Group 'B') Services (Appointment of Demobilised
officers) Rules, 1980, hereinafter referred to as 'the 1980 Rules', relating to
the seniority of the appellants vis-a-vis the private respondents.
577
The appellants have all been appointed in the Provincial Civil Service of the
State of Uttar Pradesh as direct recruits on the basis of
competitive examinations held by the Uttar Pradesh Public Service Commission.
The appointments of the appellants were made under the U.P. Civil Service
(Executive Branch) Rules, 1941 framed under section 241(1)(b) of the Government
of India Act, 1935, hereinafter referred to as 'the Service Rules'.
The
respondents were recruited under the 1973 Rules and/or the 1980 Rules. The
respondents were either Emergency Commissioned officers or the Short Service
Commissioned officers of the armed forces of the Union of India and were
commissioned on or before November 1, 1962
during the Indo-Chinese war. They were demobilised from armed forces in or
about 1968. These respondents, therefore, rendered services to the country
during the operation of the emergency when the nation's security was in peril
due to external aggression. In order to rehabilitate such persons and to ensure
them that in civil life, after the cessation of emergency, they were not to
suffer for rendering services to the nation and with a view to putting the
respondents at par with other persons, the 1973 Rules were framed by the
Governor of U.P. in exercise of his powers under the proviso to Article 309 of
the Constitution of India.
Rule
1(3) of the 1973 Rules provide that they shall remain in force for a period of
five years from the date of their commencement. Rule 3, inter alia, provides
for the reservation of ten per cent of the permanent vacancies in all
Non-Technical (Class-II) Services to be filled substantively by direct
recruitment through competitive examination in any year. Rule 6 relating to
seniority and pay, which is important for the purpose of these appeals, is
extracted below:
"R.6.
Seniority and pay- (1) Seniority and pay of candidates appointed against the
vacancies reserved under sub-rule (1) of rule 3, shall be determined on the
assumption that they entered the service concerned at their second opportunity,
of competing for recruitment, and they shall be assigned the same year of
allotment as successful candidates of the relevant competitive examination:
Provided
that any such candidate who had two opportunities before the date of his
joining the training 578 prior to his commission whether he actually availed
any A such opportunity or not, shall be assigned the same year of allotment as
successful candidates of the first competitive examination held after the said
date.
Explanation-The year of a candidate's second
opportunity will be determined by the date of his birth in relation to the
prescribed minimum age for competing for recruitment to the service.
(2)
Seniority inter se of candidates who are appointed against vacancies reserved
under sub- rule (1) of rule 3 and allotted to a particular year shall be
determined according to the merit list prepared by the Ayog on the basis of the
results of their performance at the examination.
(3)
All candidates appointed against vacancies reserved under sub-rule (1) of rule
3 and allotted to any particular year shall rank below the candidates who were
successful at the competitive examination held for recruitment to the service in
that year.
(4) The
pay of candidates appointed against vacancies referred to in sub-rule (3) of
rule 3 shall also be determined in the same manner as indicated in sub-rule (1)
of this rule but their seniority shall be determined in accordance with the foregoing
sub-rules only if and at the point of time when they are appointed
substantively against permanent vacancies." For the purpose of seniority
and pay, rule 6 takes into account the period of war service rendered by a
candidate who, after his demobilisation from such service, successfully
competes in the relevant examination which is in the present case, the
Provincial Civil Service Examination. Under Rule 6, when such a candidate is
recruited after his successfully competing in the relevant examination, it will
be assumed that he had entered service with retrospective effect from the year
in which he had the second opportunity of taking the relevant examination for
his recruitment, which he could not take on account of his having joined the
service of the armed forces of the Union of India.
So far
as the actual period rendered by the respondents in the 579 armed forces during
the emergency is concerned, there is no dispute that such period shall be taken
into consideration for the purpose of computing the seniority and pay. The
grievance of the appellants is that although there were long gaps between the
dates of demobilisation and the dates of recruitment of the respondents, the
State of Uttar Pradesh had, in computing the seniority of the respondents,
taken into consideration not only the period during which the respondents were
in the services of the armed forces, but also such long gaps. It is pointed out
by the appellants that in the cases of one or two respondents, the gaps were
even of about 11 years and these long gaps had been taken into account in
computing their seniority. As a result of such computation, the respondents
after their appointments were placed above the appellants, although the
appellants were recruited to the Provincial Civil Service under the Service
Rules long before the respondents were recruited. If such gaps are excluded
from consideration, the appellants will be seniors to the respondents.
It is
also alleged by the appellants that several of the respondents, after coming back
from the army, joined various services, both Government and private services,
and had spent 3 to 10 years or more in those services before they were
recruited under the 1973 Rules or 1980 Rules.
In
1976, a seniority list was prepared showing the respondents seniors to the
appellants on the basis of the period of their service in the armed forces and
the gaps between their discharge and recruitment. In 1980 also, a seniority
list was prepared in like manner showing the appellants as juniors to the respondents.
Being
aggrieved by the 1976 seniority list, the appellants moved two writ petitions
under Article 226 of the Constitution before the Allahabad High Court, inter alia,
challenging the validity of the 1973 Rules and also 1980 Rules. The High Court overruled
the contention of the appellants that the 1973 Rules and 1980 Rules were
invalid being violative of Article 14 of the Constitution of India and held
that both these Rules were legal and valid. It, however, took the view that
under rule 6 of the 1973 Rules or rule 5 of 1980 Rules, which are verbatim the
same, the period during which the respondents had no employment or were
employed elsewhere till recruitment in the Provincial Civil Service after
competing in the relevant examination, will be taken into account along with
the period during which they were in the services of the armed forces for the
purpose of computing their seniority in the Provincial Civil Service.
Accordingly, the High Court upheld the vali- 580 dity of the impugned seniority
list. Hence this appeal.
It is
urged by Dr. Singhvi, learned Counsel appearing on behalf of the appellants,
that the interpretation given by the High Court of rule 6 of the 1973 Rules
relating to seniority and pay is in excess of the relief intended to be granted
by that rule. It is submitted that rule 6 was framed for the purpose of taking
into consideration the period of service in the armed forces in computing the
seniority of a candidate appointed in the Provincial Civil Service after
competing in the relevant examination, so that he does not suffer because of
joining the armed forces. Rule 6 does not provide for taking into consideration
the gap between the date of demobilisation of a candidate and the date on which
he is appointed in the Provincial Civil Service after competing in the relevant
examination. If such gaps are also taken into consideration, it would be doing
injustice to the appellants who have been appointed long before the
respondents. Accordingly, Dr. Singhvi submits that when a candidate who was in
the armed forces of the Union joined the Provincial Civil Service after his
discharge from the armed forces, it would be assumed that he had entered the
Provincial Civil Service at the second opportunity of competing for the
recruitment, but no other period including that between the discharge and
recruitment will be taken into account for the purpose of computing the
seniority of such a candidate.
on the
other hand, it is submitted by Mr. Anil Dev Singh and Mr. Gupta, learned
Counsel for the respondents, and Mr. Subhash Chandra, respondent No. 34,
appearing in person, that rule 6 does not prohibit, either expressly or by
necessary implication, the taking into account of the period between demobilisation
and recruitment in the Provincial Civil Service. It is submitted that not only
the length of the war service but also such gaps should be considered for the
purpose of computation of seniority. They submit that as only ten per cent of
the vacancies were reserved for war service candidates, it was difficult for
such candidates to get a chance within a reasonable time after their discharge
from war service and it would be quite consistent with rules of natural justice
to take into account the interregnum between the date of discharge and the date
of recruitment.
Rule 6
only provides that after the discharge of a candidate from the armed forces and
his subsequent appointment in civil service on the basis of competitive
examination, it will be assumed that he had joined the service at the second
opportunity of competing for the recruitment. The second opportunity has been
explained in the Expla- 581 nation to rule 6. It provides that the year of a
candidate's second opportunity will be determined by the date of his birth in
relation to the prescribed minimum age for competing for recruitment to the
service. For example, if the minimum age for taking the competitive examination
for recruitment is 21 years, the first opportunity of a candidate will be in
the year he attains that age and the second opportunity will be in the next
year, that is, at the age of 22 years. Under rule 6, the recruitment of a war
service candidate will be assumed to have been made in the year in which he had
the second opportunity of competing for such recruitment. In other words, the
seniority of such a candidate will be computed on the basis that he had joined
the civil service in the year of his second opportunity of competing for the
recruitment.
It is
true that rule 6 does not provide for the period between demobilisation and recruitment
of a war service candidate in the civil service. Nor does it forbid
consideration of such period. It cannot, however, be deemed that after the
discharge from war service, there will be some lapse of time for the
recruitment of a candidate in the Provincial Civil Service. Immediately after
discharge, one cannot get himself recruited in the Provincial Civil Service.
There is a question of competing in the examination. Rule 6 does not provide
for any gap to be taken into consideration, yet it is apparent that some
reasonable period has to be allowed to a candidate so as to enable him to avail
himself of the opportunity of appearing at the competitive examination for his
recruitment in the Provincial Civil Service. It cannot be gainsaid that to compete
in the examination, a candidate has to make preparation for that. Competitive
examinations are generally difficult and, in our opinion, at least two years'
time should be allowed to a candidate, after his discharge, for his preparation
for the competitive examination and that will be his first opportunity. The
second opportunity will arise in the next year, that is, in the third year of
his discharge from the armed forces. In other words, he should be allowed three
years for competing in the relevant examination for recruitment in the civil
service.
Even
after he becomes successful, he is not recruited immediately. There is the
question of availability of vacancies and posting. It is common knowledge that
some time is taken for posting. On a proper construction of rule 6, the period
spent by a candidate for competing in the examination which, in our opinion,
will not be more than three years, and the period of time taken for his
recruitment or posting will also be taken into consideration for the purpose of
computing the 582 seniority of a war service candidate. Thus, if a candidate is
discharged in the year 1968, he should be given three years' time to avail
himself of the opportunity of competing in the examination. Suppose, he is
successful in the examination held in 1971 and posted in 1973. In view of rule
6, he would be deemed to have entered service at the second opportunity of
competing for recruitment and the entire period from the date of assumed entry
in the service up to his recruitment in 1973 shall be taken into account for
the purpose of computing seniority and pay. If, however, a candidate does not
avail himself of the opportunity within three years of his discharge from war
service or takes the examination but becomes unsuccessful, the period between
his discharge and subsequent recruitment will not be taken into account for the
purpose of computing the seniority. Rule 6 should be given a reasonable
interpretation. We do not find any reason to interpret rule 6 in a way which
will be doing injustice to the appellants who have been recruited under the
Service rules after competing successfully in the examination.
We
agree with the High Court that the 1973 Rules as also the 1980 Rules are quite
legal and valid. We are, however, of the view that under rule 6 of the 1973
Rules or rule 5 of the 1980 Rules only a reasonable period, namely, the period
of three years, required for taking the examination and the time taken for
recruitment or posting, as discussed above, along with the period of war service,
but no other period, will be taken into consideration for the purpose of
computing the seniority and pay. The impugned seniority list prepared in 1976
and also that prepared subsequently in the year 1980 cannot be sustained, as
they have been prepared by taking into consideration the entire period between
the discharge and the recruitment without any reservation for computing the
seniority.
For
the reasons aforesaid, we set aside the judgment of the High Court relating to
the interpretation of rule 6 of the 1973 Rules. The impugned seniority lists of
1976 and 1980 are also quashed. The State of Uttar Pradesh is directed to
prepare the seniority list in the light of the observations made hereinabove
within a period of six months from date.
The
appeals are allowed to the extent indicated above.
There
will, however, be no order as to costs in either of these appeals.
G.N.
Appeals allowed.
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