Ajeet
Singh Singhvi Vs. State of Rajasthan & Ors [1991] INSC 56 (20 February 1991)
Punchhi,
M.M. Punchhi, M.M. Sahai, R.M. (J)
CITATION:
1991 SCR (1) 579 1991 SCC Supl. (1) 343 JT 1991 (1) 668 1991 SCALE (1)250
ACT:
Rajasthan
Administrative Service Rules, 1954-Rules 6, 28-B and 32-`Higher post', `highest
post'- Identification of -Super time scale posts- Whether highest post.
HEAD NOTE:
The
appellants are high ranking officers in Rajasthan Administrative Service
governed by the Rajasthan Administrative Service Rules, 1954. Consequent upon
the amendment caused to the said rules on July 17, 1987, they felt that the amendment had
affected their further promotional chances. They therefore filed writ petitions
before the High court challenging the vires of the amendment dated 17.7.1987
contending that the creation of Super time scale did not have the automatic
effect of creating highest post/posts to be filled by merit alone, and that the
posts to which Super Time Scale was attracted remained `higher posts' in
contrast to `highest posts' available to the members of the Rajasthan
Administrative Service on the prescribed percentage of 50 per cent on merit and
the remaining fifty per cent on seniority-cum-merit.
Their
case was that section to the highest posts made under the amended rule solely
on the basis of the merit was bad in law. Before the High Court challenge to
the vires of the amendment was abandoned and the High Court considered the
question (i) whether the Super time scale is/are the highest post/posts in the
service and (ii) if it is so, whether the post/posts is/are to be filled on the
basis of seniority-cum-merit in the proportion of 50:50 or on merit alone in
accordance with sub-rule (7) of /Rule 28-B of the Rules:
The
High Court rejected the writ petitions opening that the Super Time Scale
post/posts was/were the highest post/posts in the service and those are
required to be filled on merit alone and not in the proportion of 50:50 on the
basis of merit and seniority-cum-merit. Hence these appeals by the appellants.
Dismissing
the appeals this Court
HELD:
The terms `higher post' and `highest post' occurring in 580 Rules 28-B and 32
by all means are relative ones expected to be created in singular or plural
terms under rule 6 whereunder the strength of posts in each grade was
determinable by the government from time to time. Sub-rule (7) even before the
amendment of 17.7.1987 postulated a highest post/post capable of being filled
on the basis of merit alone. [590 G-H] Super Time Scale posts are the highest
posts in the service and selection for promotion and appointment on that basis
in the service has to be made on the basis of merit alone and not on the basis
of seniority-cum-merit in the proportion of 50:50.[591 G] J.K. Cotton Spinning
& Weaving Mills Co. Ltd. v. State of U. P. and Ors. [1961] 3. SCR 185; Lt.
Col. Prithi Pal Singh Bedi etc. v. Union
of India and Ors. [1983] 1. SCR 393-referred
to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 4032 & 4033 of 1989.
From
the Judgment and Order dated 30.4.1988 of the Rajasthan High Court in D. B.
Civil W. P. Nos. 694 & 696 of 1988.
Appellant
in person in C. A. No. 4032 of 1989. Rajinder Sachher, and Ravinder Bana for
the Appellant in C. A. No. 4033 of 1989.
Aruneshwar
Gupta for the Respondents in both the appeals.
The
Judgment of the Court was delivered by PUNCHHI, J. The identification of the
highest post/posts in the Rajasthan Administrative Service, capable of being
filled by merit alone, under sub-rule (7) of 28-B of the Rajasthan Administrative
Service Rules, 1954 (hereafter referred to as the `Rules'), is the search
undertaken in these two connected appeals by special leave.
The
respective appellants herein are Ajeet Singh Singhvi, who appeared in person,
and Jagbir Singh who appeared through learned counsel. Both the appellants, at
the time they moved the Rajasthan High Court by means of their respective writ
petitions, were high ranked officers in the Rajasthan Administrative Service
but found their further chances to promotion obstacled on account of the
amendments caused in the said Rules with effect from July 17, 1987. Broadly stated, on such amendments
a Super Time scale was created which statedly was to remove stagnation in
service. The contention of 581 the appellants before the High Court was, and
is, that the creation of Super Time scale did not have the automatic effect of
creating highest post/posts to be filled by merit alone, and that the posts
which Super Time scale was attractive remained `higher posts' in contrast to
`highest post' available to the members of the Rajasthan Administrative Service
on the prescribed percentage of 50 percent on merit and the remaining fifty
percent on seniority-cum-merit. The appellants challenged the vires of the
amendments dated 17-7-1987 for confining the selection to the
highest posts made thereafter solely on the basis of merit. Before the High
Court, however, the question of vires of the amendments was given up and thus
the High Court invited its attention to the following two questions:
(i) whether
the Super Time scale is/are the highest post/posts in the service; and (ii) if
it is so, whether that post/posts is/are to be filled on the basis of
seniority-cum-merit in the proportion of 50:50 or on merit alone in accordance
with sub-rule (7) of Rule 28-B of the Rules? The High Court by a long and an
elaborate judgment, dated 30.4.1988 traced the history of the Rules and the
amendments made to rules 28-B and 32 from time to time expressed the opinion
that Super Time scale post/posts was/were the highest post/posts in the service
and those required to be filled on merit alone and not in the proportion of
50:50 on the basis of merit and seniority-cum- merit. It is to challenge that
view that these matters are here before us and we have had the opportunity of
hearing the party in person and learned counsel on both sides.
We
begin by taking note that the word `highest' has not been given a definitive
meaning in the Rules, and has to be understood and employed in the context in
its ordinary meaning and diction. Rule 6 prescribes the strength of the
service. It mandates that the strength of post in each grade of the service
shall be such as may be determined by the government from time to time. The
proviso thereto leaves all the possible flexibility with the government in the
creation of any post of any kind and nature and for its abolition.
The
latest notification in that regard, as was placed before us, is Notification
No. F1(2) Karmik/ Ka-IV/79 dated January 12, 1988 issued from the Department of Personnel and Administrative
Reforms, Government of Rajasthan specifying that as per Rule 6 of the Service
Rules, the strength of posts 582 in each grade of Rajasthan Administrative
Service is determined therein. The said notification is found in a compilation prepared
by the Rajasthan Administrative Service Association, amended upto June, 19,1988. It demonstrates posts with their
titles divided into seven categories. The first category is of Super Time Scale
posts in the grade of Rs. 3900-125-4400-150-5300. The second category is of
selection scale post in the grade of 2978-75-3050-100-3650- 125-4400-150-4700.
Thereafter there are lesser pay-scale given in the third category of senior
scale posts and in the fourth category, junior scale posts followed by special
ex- cadre posts, training reserve and leave reserve posts. The Super Time Scale
posts are 25 in number and those posts are named and numbered as follows:
-----------------------------------------------------------
S. NO. Name of the Post No. of Posts -----------------------------------------------------------
1.
Director of Agriculture Marketing & Ex- 1 Officio Dy. Secy. to Govt.
2.
Director, Local Bodies 1
3.
Commissioner, Devasthan Deptt. 1
4.
Revenue Appellate Authority 10
5.
Principal, A.P.R.T.S., TONK 1
6.
Addl. Divisional Commissioners 6
7.
Addl. Director, HCM RIPA, Udaipur 1
8.
Addl. Commissioner, Co,. Cum-R. A. A., Bikaner1
9.
Addl. Commissioner, TAD 1
10.
Addl. Commissioner, Desert Dav. 1
11.
Addl. Commissioner, Transport 1 ----- 25 ------------------------------------------------------------
Now whether these posts are the highest posts in the Rajasthan Administrative
Service or are just higher posts, so as to identify the criteria applicable for
promoting to these posts their personnel.
`Service'
has been defined in Rule 4-L to mean the Rajasthan Administrative Service.
Sub-rule (7) of Rule 28-B prescribes that 583 selection for promotion to the
highest post/posts in the State Service shall always be made on the basis of
merit alone. As said before, `highest posts' has nowhere been defined. Prior to
the amendment of July
17, 1987, sub-rule (7)
read as follows:
"Selection
for promotion to the highest post or highest category of posts in the State
Service shall always be made on the basis of merit alone." According to
the appellants, prior to July
17, 1987 the highest
post was never identified and equally the highest category of posts were
nowhere visible. The posts now falling in the Super Time Scale, tabulation of
which stands incorporated above, were always considered as higher posts and in
terms of sub-rule (6) of rule 28-B,Selection for promotion to all other higher
posts/higher category of posts in the State Service were required to be made on
the basis of merit and seniority-cum-merit in the proportion of 50:50.
The
proviso, however, to sub-rule (6) provided that if the Committee (appointed
under Rule 28) was satisfied that suitable persons are not available for
selection by promotion strictly on the basis of merit in a particular year,
selection by promotion on the basis of seniority-cum- merit may be made in the
same manner as specified in these Rules. The two appellants maintained that
before the introduction of the Super Time scale vide amendment dated July 17,
1987 there were only three categories, namely, ordinary scale posts
(alternatively known as junior scale), senior scale posts and selection scale
posts in the Service and these continued as such despite the amendments. Before
the High Court the exercise to identify the Super Time selection posts would
have been easy had the government notification dated 12th January,1988 been brought to its notice. In any
event after the issuance of the Government notification dated 12th January,
1988, those very posts in the Service have now been designated as junior scale,
senior scale, selection scale and super time scale posts and for valid
administrative reason have Super Time Scale posts been treated as highest posts
even though they may have hitherto belonged to the category of higher posts;
the State Service remaining the same.
Rule
15 prescribes eligibility for consideration for promotion on the basis of
qualifying service for promotion.
Rule
28 prescribes the procedure for promotion and postulates the Constitution of a Commitee.
Rule 28-B, so far as is relevant for our purpose, is called out below:
"28-B
REVISED CRITERIA, ELIGIBILITY AND 584 PROCEDURE FOR PROMOTION TO JUNIOR, SENIOR
AND OTHER POSTS ENCADRED IN THE SERVICE- (i) As soon as the appointing
authority determines the number of vacancies (under rule 9 of these Rules) and
decides that a certain number of posts are required to be filled in by
promotion, it shall, subject to provisions of sub-rule (9), prepare a correct
and complete list of senior-most persons who are eligible and qualified under
these Rules for promotion on the basis of seniority-cum- merit or on the basis
of merit to the class of posts concerned.
(2)
For appointment to the Service by promotion, the eligible persons included in
the list mentioned in rule 28 shall be considered.
(3) xxxxxxxxxxx
(4) Selection for promotion in the reguler line of promotion from the
post/posts not included in Service to the lowest post or category of post in
the Service shall be made strictly on the basis of merit and on the basis of
seniority-cum-merit in the proportion of 50:50.
PROVIDED
that if the Committee is satisfied that suitable persons are not available for
selection by promotion strictly on the basis of merit in a particular year,
selection by promotion on the basis of seniority-cum-merit may be made in the
manner as specified in these Rules.
(5)
Subject to the provisions of sub-rule (7),selection for promotion from the
lowest post or category of post in the State Service to the next higher post or
category of post in the State Service and for all posts in the Subordinate
Services and in the Ministerial Services shall be made strictly on the basis of
seniority-cum-merit from amongst the persons who have passed the qualifying
examination, if any, prescribed under these Rules, and have put in at least
five years service, unless a different period is prescribed elsewhere in these
Rules, on the first day of the month of April of the year of selection on the
post or category of post from which selection is made:
585
PROVIDED that in the event of non-availability of the persons with the
requisite period of Service of five years, the Committee may consider the
persons having less than the prescribed period of Service, if they fulfill the
qualifications and other conditions for promotion prescribed elsewhere in these
Rules, and are found otherwise suitable for promotion on the basis of
seniority-cum-merit.
(6)
Selection for promotion to all other higher posts or higher categories of posts
in the States Service shall be made on the basis of merit and on the basis of
seniority-cum-merit in the proportion of 50:50.
PROVIDED
that if the Committee is satisfied that suitable persons are not available for
selection by promotion strictly on the basis of merit in a particular year,
selection by promotion on the basis of seniority-cum-merit may be made in the
same manner as specified in these Rules.
EXPLANATION:
If in a Service, in any category of post, number of posts available for
promotion is an odd number then for purpose of determining the vacancies for
selection by promotion on the basis of seniority-cum-merit and merit in the
proportion of 50:50, the following cyclic order shall be followed:
The
first vacancy by seniority-cum-merit; The subsequent vacancy by merit; The
cycle to be repeated.
(7)
Selection for promotion to the highest post/posts in the State Service shall
always be made on the basis of merit alone:
PROVIDED
that- (a) in a Service or Groups or Sections thereunder, where there are only
two scales e.g.
junior
scale or senior scale and there is only one promotion then promotion shall be
made on the basis of seniority-cum-merit alone;
(b) in
a Service or Groups or Section thereunder, where there are three scales e.g.
junior
scale, and selection scale and there are two promotions then promotion shall be
as under:
586 (i)
first promotion on the basis of seniority- cum-merit.
(ii) second
promotion on the basis of seniority-cum-merit and merit in the proportion of
50:50;
(c) in
Services or Groups or Sections thereunder, where there are more than two
promotions then first promotion shall be made on the basis or
seniority-cum-merit alone and promotions to subsequent higher posts shall be
made on the basis of seniority-cum-merit and merit in the proportion of 50:50
except to the highest post.
PROVIDED
further that if the Committee is satisfied that suitable persons are not
available for selection by promotion to highest post/posts, strictly on the
basis of merit in a particular year, selection by promotion to highest post/posts
on the basis of seniority-cum-merit may be made in the same manner as specified
in these rules.
(8)
The persons having been selected and appointed by promotion to a post or
category of post on the basis of merit, shall be eligible for promotion to the
next higher post or category of post, which is to be filled in by merit, only
when they have put in after regular selection, at least five years' service,
unless a higher period of Service is prescribed elsewhere in these Rules, on
the first day of the month of April of the year of selection on the post or
category of post from which selection is to be made:
PROVIDED
that the condition of five years'service shall not be applicable to a person,
if any person junior to him is eligible for consideration for promotion on the
basis of merit.
PROVIDED
further that in the event of non- availability of persons equal to the number
of vacancies to be filled in, eligible for promotion in the category of post
next lower from which promotion is made, the Committee may consider the persons
having less than five years' service, if they are found otherwise suitable for
promotion on the basis of merit alone.
587
EXPLANATION: If any doubt arises about the categoriesation of the post as the
lowest, next higher or highest post in the Service, the matter shall be
referred to the Government in the Department of Personnel and Administrative
Reforms whose decision thereon shall be final.
(9)
The zone of consideration of persons eligible for promotion shall be as under:
i) no.
of vacancies no. of eligible persons to be considered a) for one vacancy Five
eligible persons b) for two vacancies Eight eligible persons c) for three
vacancies Ten eligible persons d) for four or more vacancies Three times the
number of vacancies.
ii) Where,
the number of eligible persons for promotion to higher post is less than the
number specified above, all the persons so eligible shall be considered.
iii)
Where, adequate number of candidates belonging to the Scheduled Castes or the
Scheduled Tribes, as the cases may be, are not available within the zone of
consideration specified above, the zone of consideration may be extended to
five times the number of vacancies and the candidates belonging to the
Scheduled Castes or the Scheduled Tribes, as the case may be, (and not any
other) coming within the extended zone of consideration shall also be
considered against the vacancies reserved for them.
iv)
For the highest post in a State Service a) if promotion is from one category of
post, eligible persons upto five in number shall be considered for promotion;
b) if
promotion is from different categories of the post in the same pay scale,
eligible persons upto two in number from each category of posts in the same pay
scale shall be considered for promotion;
588 c)
if promotion is from different categories of posts carrying different pay
scales, eligible persons in the higher paying scale shall be considered for
promotion first and if no suitable person is available for promotion on the
basis of merit in the higher pay scale then only the eligible persons of other
categories of posts in lower pay scales shall be considered for promotion and
so on and so forth. The zone of consideration for eligibility in this case
shall be limited to five senior-most eligible persons in all.
10. xxxxxxxx
11. a)
XXXXXX b) XXXXXX c) XXXXXX
12.
XXXXXX
13.
XXXXXX
14.
XXXXXX
15.
XXXXXX
16.
XXXXXX Rule 32 after the amendment reads as follows:
"32.
APPOINTMENT TO SENIOR POST-(1) [In accordance with vacancies determined according
to the provisions laid down in rule 9] appointment to [senior scale, selection
scale and super-time scale] post shall be made by Government from amongst the
members of the Service in accordance with the selection having been made on the
basis of merit and seniority-cum- merit on the recommendations of a Committee
which shall consist of following:
1.
Chairman, Rajasthan Public Service Commission ...Chairman
2.
Chairman, Board of Revenue ...Member
3.
Secretary to Government in Super-time scale of the 589 Indian Administrative
Service, as may be nominated by the State Government ....Member 4. Special
Secretary to Govt. in the Department of Personnel ...Member Secretary PROVIDED
that in case any Member or Member Secretary, as the case may be constituting the
Committee has not been appointed to the post concerned the officer holding
charge of the post for the time being shall be the Member or Member- Secretary,
as the case may be of the Committee.
(2)
Except as provided in this rule, the procedure and the principles for selection
by merit shall, in so far it may apply, be the same as provided in rule 28-B.
For selection by seniority- cum-merit, the Committee shall consider the cases
of all the persons eligible for promotion by examining their Confidential Rolls
and Personal Files and interviewing such of them as they may deem necessary,
and shall select a number of candidates equal to the number of vacancies likely
to be filled by promotion by seniority-cum-merit.
PROVIDED
(1) that appointment to the senior or selection grade post [or super-time
scale] post may be made by Government by appointing thereto temporarily a
person eligible for appointment by the promotion to the Service under the
provisions of these Rules.
(2) No
appointment made under [proviso (1)] above shall be continued beyond a period
of one year without referring it to the Commission for their concurrence and
shall be terminated immediately on their refusal to concur".
Argument
was sought to be built that in Rule 32, Super Time scale was introduced with
effect from 17-7-1987 whereunder the Government was required to make an
appointment on the basis of merit and seniority-cum-merit on 50:50 basis in
accordance with subrule 6 of rule 28-B in the absence of identification of
posts. The argument looses its thrust in entirety when viewed on the basis of
sub-rule (2) whereunder the procedure and principles for selection by merit 590
shall, in so far it may apply, is the same as provided in rule 28-B. which
embodies sub-rule (7) as well. We have in the context to apply the Rule of
harmonious construction.
In The
J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. The State of Uttar
Pradesh & Others; [1961] 3 SCR 185 this Court applied the rule of
harmonious construction even to subordinate legislation and laid down as
follows:
"In
applying the rule however we have to remember that to harmonise is not to
destroy. In the interpretation of statutes the courts always presume that the
legislature inserted every part thereof for a purpose and the legislative
intention is that every part of the statute should have effect. These
presumption will have to be made in the case of rule making authority
also." Then again in Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India
& Others, [1983] 1 SCR 393 at pages 404-05 it was observed as follows:
"The
dominant purpose in construing a statute is to ascertain the intention of the
Parliament. One of the well recognised canons of construction is that the
legislature speaks its mind by use of correct expression and unless there is
any ambiguity in the language of the provision the Court should adopt literal
construction if it does not lead to an absurdity. The first question to the
posed is whether there is any ambiguity in the language used in rule 40. If
there is none, it would mean the language used, speaks the mind of Parliament
and there is no need to look somewhere else discover the intention or meaning.
If the literal construction leads to an absurdity, external aids to
construction can be resorted to. To ascertain the literal meaning it is equally
necessary first to ascertain the juxtaposition in which the rule is placed, the
purpose for which it is enacted and the object which it is required to subserve
and the authority by which the rule is framed. This necessitates examination of
the broad features of the Act." On the application of above principles, it
is noticeable that the terms `higher post' and `highest post' occuring in Rules
28-B and 32 by all means are relative ones expected to be created in singular
or plural terms under Rule 6 whereunder the strength of posts in each grade was
determinable by the government from time to time. Sub-rule (7) even before the
amendment of 17-7-1987 postulated a highest post/posts capable of being filled
on the basis of merit alone. The fact that they 591 remained un-identified
gives no basis to the plea that the State was incapacitated to identify at a
later stage the highest posts in the State Service required to be filled on the
basis of merit alone. It seems to us, on a close analysis,and on the language
employed in Rules 28-B and 32 that the highest post/posts conceptually were
part of the Rules but their effectuation and identification has surfaced only
by means of the amendments of July 17, 1987
and the notification of January
12, 1988.
Another
significant factor which leans towards such an interpretation is the stance of
the State which militates against the views canvassed on behalf of the
appellants.
There
is an inbuilt safety kept in the explanation added to sub-rule (8) of Rule 28-B
which prescribes that if any doubt arises, amongst others, about the categorisation
of the posts as the highest posts in the Service, the matter shall be referred
to the government in the Department of Personnel and Administrative Reforms, whose
decision there on shall be final. The appellants could easily have raked up and
got referred the matter to the government to have a decision thereon. The view
of the government in maintaining that the Super Time scale posts are highest
posts is not only a bare and literal interpretation given by it to the Rules
but also is reflective of its policy in this regard and no decision needs to be
given by the Court in normal circumstances to amend or alter such policy. In
such a realm even contemporaneous exposition of a similar rule in an other set
of rules cannot play their part to influence either the Court or the Government
to give the same interpretation or exposition to the rules requiring
interpretation herein.
Besides
the government being the author of the rule, has kept to itself, as a matter of
prudence; the right to remove any ambiguity about the identification of any
post including the highest post/posts. The stance of the government in this
regard should have clinched the matter but since the same had been put forth as
a defence in the High Court, its view nonetheless are entitled to great weight
and the burden of the appellants to lift that weight, an uphill task by all
means, has remained unfulfilled.
To sum
up, our interpretation of the rules is in accord with the interpretation of the
rules as put by the High Court holding that the Super Time scale posts are the
highest posts in the Service and selection for promotion and appointment on
that basis in the Service has to be made on the basis of merit alone and not on
the basis of seniority- cum-merit and merit in the proportion of 50:50. In the
facts and circumstances of the case, however, we pass no order as to costs,
while dismissing the appeals.
Back
