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PETITIONER:

RAM SARAN AND ANR. ECT.

Vs.

RESPONDENT:

STATE OF PUNJAB AND ORS. ETC.

DATE OF JUDGMENT22/02/1991

BENCH:

FATHIMA BEEVI, M. (J)

BENCH:

FATHIMA BEEVI, M. (J)

AHMADI, A.M. (J)

RAMASWAMI, V. (J) II

CITATION:

1991 SCR (1) 729 1991 SCC (2) 253

JT 1991 (1) 569 1991 SCALE (1)359

ACT:

Service and Labour Law: Punjab Excise and Taxation

Department (State Service Class III-A) Rules, 1956/Punjab

Excise and Taxation Department (State Service Class II)

Rule 57 Punjab Excise Subordinate Service Rules, 1943-Rules

7(a)(ii).

Rule 5-Punjab Excise and Taxation Department (State

Service Class-II) Rules-Promotion of ministerial staff cadre

as Excise and Taxation Officers-Abolition of cadre of

Assistant Excise and Taxation Officers eligibility

requirement for Excise/Taxation Inspector 5 years minimum

experience as such-Employees on deputation/transfer or

holding post in different cadre not entitled to claim

service in that cadre to be treated experience in the

ministerial cadre.

HEADNOTE:

In the Punjab Excise and Taxation Department there were

two separate cadres known as "Assistant Excise & Taxation

Officers" governed under the State Service Class III-A

Rules, 1956 and "Excise & Taxation Officers" governed by the

State Service Class II Rules. Under the class II Rules,

appointments were made in the ratio of(a) 50% by direct

recruitment and (b) 50% by promotion from amongst Assistant

Excise and Taxation Officers. Likewise under the Class

III-A Rules 50% of the vacancies were filled by direct

recruitment and 50% by promotion from the subordinate staff

comprising the Taxation Inspectors, Excise Inspectors,

Ministerial Staff Head Office and Ministerial Staff Sub-

office who within themselves had shares as laid down.

The Writ Petitioners and the contesting respondents-Ram

Saran and O.P. Singhla had initially joined the Punjab

Excise and Taxation Department as clerks and were confirmed

as such. The Petitioners were promoted and appointed as

Excise/Taxation Inspectors by transfer under Rule 7(a)(ii)

of the Punjab Excise Subordinate Service Rules, 1943 and

their lien in the taxation department suspended under Rule

3.14(b) of the Punjab Civil Service Rules. Whereas Ram

Saran and O.P. Singhla continued in the ministerial cadre

and were Assistant and Superintendent respectively at the

relevant time.

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730

Following reorganisation of the department, the carde

of Assistant Excise & Taxation Officers was abolished and

all the Assistant Excise & Taxation Officers were

redesignated as Excise and Taxation Officers. Consequently

Class III-A Rules became redundant. As under Class II Rules

there was no provision for promotion of subordinate staff

direct as Excise & Taxation Officers the Government in order

to provide avenues of promotion to the ministerial carde

including Taxation Inspectors and Excise Inspectors brought

in suitable amendments to these Rules on the following

terms.

"Rule 5. The members of the service shall be recruited

in the following manner namely:

(a) xxx xxx xxx

(b). In the case of an Excise and Taxation Officer;

(i) by promotion from amongst the Taxation Inspectors

and Excise Inspectors who have an experience of working as

such for a minimum period of five years; or

(ii) by promotion from amongst the Superintendents,

Assistant, Accountants and Senior Scale Stenographers

working in the Excise and Taxation Commissioners Head Office

and in the Divisional and District Offices of the Department

of Excise and Taxation, Punjab."

Applying the draft amended Rules before they were

formally promulgated the contesting respondents Ram Saran

and O.P. Singhla were promoted as Excise & Taxation Officers

on 22.8.1983. The Writ Petitioners who had been transferred

earlier to other cardes of Excise/Taxation Inspectors and

worked there for 14/15 years beyond the probation period

were not considered. They therefore, filed writ petitions in

the High Court challenging the promotion of the appellants

mainly on the ground that on the basis of their seniority

and lien in the ministerial cadre, they had a right to be

considered for promotion prior to the appellants.

The appellants and the State contended that if the

Petitioners wanted to be considered for this post on the

basis of their lien in the ministerial carde, they may seek

reversion to this cadre and thereafter their case would be

considered on merits in accordance with the eligilbility as

prescribed under the amended Rule 5-which includes

experience of working as such for a period of five years in

the ministerial

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cadre. To this reply of the Writ Petitioners was that if

the service rendered by them in the other cadre as Excise

and Taxation Inspectors was not considered as service

rendered in the ministerial cadre, they would be ineligible

for consideration to this post. The learned single judge

accepted the petitioners' contention and in allowing the

Writ Petitions held that there was no conscious decision to

apply the draft rules and consequently the Petitioners were

entitled to be considered for the post of Excise & Taxation

Officers without any bar of eligibility as their juniors had

already been considered. On appeal, the Division Bench took

the view that the draft rules, though not promulgated were

rightly implemented. However on the question whether

service rendered by the Petitioners on transfer to the other

cadres could be considered as having been rendered in the

Ministerial cadre, the Division Bench relying on the

decision of this court in State of Mysore & Anr. v. P.N.

Nanjundiah & Anr., [1969] 3 SCC 633, held that it did and

that if that is counted the petitioners would be eligible

for promotion under the relevant rules with their suspended

lien reviving with effect from the date it had suspended and

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they shall be considered forthwith. Against this order Ram

Saran and O.P. Singhla have preferred appeals by special

leave and so has the State separately. Reversing the

decision of the High Court and allowing the appeals

dismissing the writ petitions, this Court,

HELD: From the scheme of the Rules and the method of

recruitment it is clear that the petitioners while working

as Inspectors on appointment by transfer to that cadre had

the advantage of being considered for promotion as Officers

under the amended Rule 5 out of the quota for Inspectors,

while the ministerial staff to the exclusion of the

Inspectors were entitled to certain percentage. [739E]

The petitioners without being on the ministerial cadre

even by reversion could not claim promotion as a member of

the ministerial cadre without revival of the lien. Such

revival could be effected only on reversion and not while

the lien remained suspended. [739F]

If the Government employee was on deputation or holding

a post in another cadre, the lien shall revive as soon as he

ceased to hold the post in another cadre. There is no

revival of the lien during the period the employee continues

to hold a post in another cadre. Therefore, during the

period the suspension is operative, the employee cannot

claim that he had been continuing in the post in the parent

cadre and gaining experience. [740G]

732

When the rule is clear and specific that for the

purpose of promotion from the cadre of Superintendents,

Assistants, Accountants, Senior Scale Stenographers to the

post of Excise and Taxation Officers, the eligibility

qualification is 'experience of working' as such' for five

years, the employee is not entitled to claim the experience

in the ex-cadre as experience of working in the ministerial

cadre. [740H-741A]

State of Mysore & Anr. v. P.N. Nanjundian & Anr.,

[1969] 3 SCC 633, distinguished.

C. Narasinga Rao & Ors. v. State of Andhra Pradesh by

its Secretary, Vol. 2 1968 S.L.R. 644 relied upon.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 945-47

of 1991.

From the Judgment and Order dated 8.8.1990 of the

Punjab & Haryana High Court in L.P.A. Nos. 266, 267 and 268

of 1986.

P.P. Rao, J. Lal, Ms. Yasmin Tarapore, S.K. Bagga and

C.M. Nayar for the Appellants.

G.L. Singhi, J.K. Sibal and Ms. Kamini Jaiswal for the

Respondents.

The Judgment of the Court was deliverd by

FATHIMA BEEVI, J. Special leave granted.

These Civil Appeals arise from the common judgment

dated 8.8.1990 of the High Court of Punjab and Haryana

dismissing Letters Patent Apeals against the judgment dated

12.2.1986 of the single Judge allowing writ petitions filed

under Articles 226 and 227 of the Constitution of India.

Civil Appeals arising out of S.L.P. (C) Nos. 14471-73 of

1990 are filed by the State of Punjab and Civil Appeals

arising out of S.L.P. (C) Nos. 14236-38 of 1990 are filed by

Ram Saran and O.P. Singhla, the respondents in the writ

petitions. We shall hereinafter refer the contesting

respondents Ram Saran and O.P. Singhla as 'the appellants'

and writ petitioners as 'the petitioners' for the sake of

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convenience.

In the Punjab Excise & Taxation Department, there were

two separate and distinct cadres known as Assistant Excise

and Taxation

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Officers governed under the Punjab Excise and Taxation

Department (State Service Class III-A) Rules, 1956

(hereinafter referred to as Class III/A Rules') and the

Excise and Taxation Officers governed by the Punjab Excise

and Taxation Department (State Service Class II) Rules.

Under the Class II Rules, appointment to the cadre of Excise

and Taxation Officers was made (a) by direct recruitment to

the extent of 50% and (b) by promotion from amongst

Assistant Excise and Taxation Officers to the extent of 50%.

Under Class III-A Rules, subordinate staff was eligible for

promotion to the extent of 50% of the vacancies of Assistant

Excise and Taxation Officers and their shares were as under:

(i) Taxation Inspector 25%

(ii) Excise Inspector 12 1/2%

(iii) Ministerial Staff Head Office 6 1/4%

(iv) Ministerial Staff Sub-Office 6 1/4%

The appellants as well as the writ petitioners joined

the ministerial cadre of the Excise and Taxation Department

as Clerks and were confirmed as such. The writ petitioners

were promoted to the higher post and later appointed as

Excise/Taxation Inspectors in 1971-72 by transfers under

Rule 7(a)(ii) of the Punjab Excise Subordinate Service

Rules, 1943. On such transfer as Excise/Taxation

Inspectors, the lien of the writ petitioners was suspended

in accordance with the provisions of Rule 3.14(b) of the

Punjab Civil Services Rules (Volume I Part-I). The

appellants continued in the ministerial cadre, Ram Saran as

Assistant and O.P. Singhla as Superintendent.

The Excise and Taxation Department was reorganised on

18th May, 1977. The cadre of Assistant Excise and Taxation

Officers was abolished on 18th May, 1977 and the Assistant

Excise and Taxation Officers were redesignated as Excise

and Taxation Officers. Thereafter Class III-A Rules became

redundant and inoperative and under Class II Rules became

redundant and inoperative and under Class II Rules, there

was no provision for promotion from subordinate staff direct

as Excise and Taxation Officers.

The Government in order to provide avenues of promotion

to the subordinate staff decided to make suitable amendment

to the Class II Rules on the following terms:

"Rule 5. The members of the service shall be recruited

in

734

the following manner, namely:

a. xxx xxx xxx

b. In the case of an Excise and Taxation Officer;

(i) by promotion from amongst the Taxation

Inspectors and Excise Inspectors who have an

experience of working as such for a minimum period

of five years; or

(ii) by promotion from amongst the Superintendents,

Assistant, Accountants and Senior Scale

Stenographers working in the Excise and Taxation

Commissioners Head Office and in the Divisional and

District Offices of the Department of Excise and

Taxation, Punjab,"

It was further provided that there will be certain

quota for each of the above categories for promotion to the

rank of Excise and Taxation Officers. The State Government

decided to adopt and apply the draft provision of Rule 5 in

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the matter of filling up of the vacancies in the carde of

Excise/Taxation Officers before rules could be formally

promulgated. Thus on 22.8.1983, Ram Saran and O.P. Singhla

were promoted as Excise/Taxation Officers. The writ

petitioners having been transferred to the other cadres of

Excise/Taxation Inspectors have continued there for 14/15

years beyond and period of probation and also qualified the

departmental test for Inspectors and they were not

considered for the promotion as Excise and Taxtion Officers.

The writ petitions were, therefore, filed challenging the

promotion of the appellant mainly on the ground that on the

basis of their seniority and lien on the post in the

ministerial cadre, the writ petitioners had a right to be

considered for promotion to the post of Excise and Taxation

Officers prior to the appellants.

The contention of the appellants as well as the State

was that though the lien of the writ petitioners in the

ministerial cadre was suspended in terms of Rule 3.14(b) of

the Punjab Civil Service Rules, if the petitioners wanted

that they should be considered for the post of Excise and

Taxation Officers on the basis of their lien in the

ministerial cadre, they may seek reversion and thereafter

their case would be considered on merits and under rules.

It was clarified by the Financial Commissioner in the order

dated 7.8.1985 that the case of the writ petitioners would

be considered in the light of the eligibility under the

735

relevant rule, that is to say, the amended Rule 5. The

eligibility prescribed under the said rule for promotion

from amongst Superintendents etc. in the ministerial service

includes experience of working as such for a period of five

years. The writ petitioners felt that if the service

rendered by them as Excise and Taxation Inspectors was not

being considered as service rendered in the ministerial

cadre, they would be ineligible for consideration to the

post of Excise and Taxation Officers.

The learned single Judge accepted the contention of the

writ petitioners that there was no conscious decision to

apply the draft rules and consequently for the post of

Excise and Taxation Officer, the writ petitioners are

entitled to be considered without any bar of eligibility as

their juniors had already been considered for the post. On

appeal, the Division Bench proceeded on the assumption that

the draft rules though not promulgated were rightly

implemented. The Division Bench dealt with the question

whether the service rendered on transfer to the ex-cadre

would be available to the writ petitioners in the matter of

their promotion to the higher posts thus:

"In view of this, question that calls for

determination is as to whether on the return of the

writ petitioners from the post of Excise and

Taxation Inspectors to the Ministerial cadre, the

service rendered by them on the post of Excise and

Taxation Inspector could by deeming fiction be

considered as having been rendered in the

Ministerial cadre? The answer to this question is

that such a service is to be counted as if the

petitioners were always in the Ministerial cadre.

Once it is held that the petitioner lien was only

suspended under Rule 3.14(b) of the Punjab Civil

Service Rules, the petitioners had a right to come

back to their posts in the Ministerial cadre and

once that is so, the rest would follow as if for

all times deemingly they were in the Ministerial

cadre."

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The Division Bench relied on the decision of this Court

in State of Mysore & Anr. v. P.N. Nanjundiah & Anr., [1969]

3 SCC 633, and opined that the entire service rendered by

the petitioners as Excise and Taxation Inspectors will be

considered in the Ministerial cadre and if that is counted

the petitioners would be eligible for promotion under the

relevant rules. It rejected the contention that the

petitioners could not be said to be retaining a lien in the

Ministerial cadre as they had successfully completed the

period of probation as Excise and Taxation

736

Inspectors and they will be deemed to be confirmed there.

The Division Bench endorsed the view that the revival of the

lien essentially means that it stands revived with effect

from the date it had been suspended, and dismissed the

appeals observing:

"......we may observe that the petitioners shall

now be considered forthwith for the posts of ETOs

from the date their juniors were promoted and if

found suitable they will be promoted to that rank

from the dates their juniors were promoted and they

would be entitled to all the consequential benefits

arising out of their promotion from the said date."

Shri P.P. Rao, the Senior Counsel for the appellants,

and Shri G.L. Sanghi, the Senior Counsel for the respondents

(writ petitioners), conceded that both parties claim

promotion to the post of Excise and Taxation Officers only

by virtue of the provision in the amended Rule 5 of Class II

Rules and, therefore, the question whether there had been

conscious application of the said rule before promulgation

is only academic. We agree with the view of the High Court

that for the purpose of present controversy we have to

assume that the amended Rules were rightly implemented

before they were formally promulgated in effecting the

promotions now challenged.

The appellants maintain that the Division Bench as

clearly wrong, and that the petitioners in order to claim

the benefit of promotion from the ministerial cadre under

the amended Rules have necessarily to satisfy the

eligibility test. To be more specific, they should have

actual experience of five years in the ministerial cadre

even when they are reverted back to that cadre.

We have said that the petitioners were appointed as

Inspectors by transfer under Rule 7 of the Punjab Excise

Subordinate Service Rules, 1943 and thereafter they belonged

to a different cadre. Their lien had also been suspended

after three years.

The Punjab Civil Services Rules, Volume, I, Part I,

Rule 3.14 reads:

"3.14. (a) A competent authority shall suspend the

lien of a Government employee on a permanent post

which he holds substantively; if he is appointed in

a substantive capacity-

737

(1) to a tenure post, or

(2) to a permanent post outside the cadre on which

he is borne, or

(3) provisionally, to a post on which another

Government employee would hold a lien, had his lien

not been suspended under this rule.

(b) A competent authority may, at its option,

suspend the lien of a Government employee on a

permanent post which he holds substantively if he

is deputed out of India or transferred to foreign

service, or in circumstances not covered by clause

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(a) of this rule, is transferred, whether in a

substantive or officiating capacity, to a post in

another cadre, and if in any of these cases there

is reason to believe that he will remain absent

from the post on which he holds a lien, for a

period of not less that three years.

(c) xxx xxx xxx

(d) If a Government employee's lien on a post

is suspended under clause (a) or (b) of this rule,

the post may be filled substantively, and the

Government employees appointed to hold it

substantively shall acquire a lien on it: Provided

that the arrangements shall be reversed as soon as

the suspended lien revives.

Note 1. xxx xxx xxx

Note. 2.-When a post is filled substantively under

this clause, the appointment will be termed "a

provisional appointment"; the Government employee

appointed will hold a provisional lien on the post;

and that lien will be liable to suspension under

clause (a) but not under clause (b) of this rule.

(e) xxx xxx xxx

(f) A Government employee's lien which has

been suspended under clause (b) of this rule shall

revive as soon as he ceased to be on deputation

out of India or on foreign service or to hold a

post in another cadre ..."

738

According to the appellants, the respondents having

been transferred to the cadre of Excise and Taxation

Inspectors and having continued there for 14/15 years beyond

the period of probation, their lien over ministerial post

was suspended. The consideration of their names for the

purpose of promotion as Excise and Taxation Officers from

the ministerial post did not arise. The amended Rule

introduced eligibility that would exclude the service

rendered by the petitioners in other posts and if such

service is excluded, the petitioners would be ineligible.

The lien of the petitioners had been suspended by the

competent authority under the mandatory provisions of Rule

3.14(b) referred to. They could seek reversion to their

parent ministerial cadre and claim consideration for

promotion to the post of Excise and Taxation Officers

according to their eligibility and suitability. The next

below rule does not apply to the case of promotion to the

higher posts in other cadres under specific rules governing

promotions to those cadres.

The recruitment to the post of Excise and Taxation

Officer is governed by Punjab Excise and Taxation Department

(State Service Class II) Rules, 1956. The eligibility of

Taxation Inspectors and Excise Inspectors and members of

ministerial establishment for the post is governed by the

amended Rule 5. According to the proposed Rule 5(b)(ii),

promotion to the post of Excise and Taxation Officer is to

be made from amongst the Superintendents, Assistants,

Accountants and Senior Scale Stenographers working in the

Excise and Taxation Commissioners Head Office and in the

District and Divisional Offices. In view of this provision,

the Taxation Inspectors and Excise Inspectors whose lien

against their posts in the ministerial cadres has been

suspended and who are not working on the eligible

ministerial establishment posts and who have been working as

Taxation Inspectors and Excise Inspectors for a long number

of year cannot claim that they are to be considered

automatically for recruitment to the post of Excise and

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Taxation Officer. The normal line of promotion within the

cadre for the members of the ministerial establishment was

from the lowest post of a Clerk to the highest post of a

Superintendent. So also the further channel of promotion

was open to the Inspectors to the post of Excise and

Taxation Officer. If the Inspectors are to be considered

for the post of Excise and Taxation Officer from the quota

of the ministerial establishment, that will result in the

Inspectors getting two avenues for promotion while the

ministerial staff losing even the one which had been

provided.

The appointment to the ex-cadre posts of Excise and

Taxation Inspector is made by transfer in accordance with

the provisions of Rule

739

7 of Subordinate Service Rules, 1943 which provide that

appointment to the cadre post shall be made by transfer or

deputation of an official already in Government service. It

implies that any Government employee irrespective of his

office can be appointed as Excise or Taxation Inspector.

The Excise and Taxation Inspectors' cadre is distinctly

different from the ministerial cadre having duties or

functions altogether different in nature and content.

Instead of waiting for their turn to be promoted from the

Inspectors quota, the petitioners have laid the claim to the

quota in the ministerial service. The appellants are also

persons who have been confirmed in the ministerial cadre and

have worked for more than 20 years as such. The result

would be that there would be no promotions to the post of

Excise and Taxation Officer from the ministerial staff as

such, and those who got transferred as Inspectors would be

getting double benefit by claiming promotion to the post of

Excise and Taxation Officer as members of the ministerial

staff while retaining their right to claim promotion from

within the quota specifically provided for the Inspectors.

The petitioners with suspended lien on the post of Clerk

and continuously holding the Inspector's post for over 13

years cannot be considered to be at par with officials

continuously working on the ministerial post for over 21

year.

From the scheme of the Rules and the method of

recruitment, it is clear that the petitioners while working

as Inspectors on appointment by transfer to that cadre had

the advantage of being considered for promotion as Officers

under the amended Rule 5 out of the quota for Inspectors,

while the ministerial staff to the exclusion of the

Inspectors were entitled to certain percentage. The

petitioners without being on the ministerial cadre even by

reversion could not claim promotion as a member of the

ministerial cadre without revival of the lien. Such revival

could be effected only on reversion and not while the lien

remained suspended. When the rule requires members of the

ministerial staff to have experience as such for five years

to satisfy the elibility requirement, the Inspectors cannot

claim that service in the different cadre with their lien

suspended be equated to service in the ministerial cadre and

treated as experience in the ministerial cadre even if the

functions and duties of the Inspectors may be of identical

nature. The purpose of the rule is to provide promotional

avenues to different categories within specified limits.

The benefit intended for one category cannot be extended to

another category by stretching the rules, particularly when

no injustice would result. The argument that the

petitioners if found ineligible would remain in the lower

cadre while their juniors are being promoted to the higher

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cadre

740

cannot be coutenanced. Even when the juniors continued in

the lower ministerial cadre for long years, the petitioners

were in a different cadre which had a larger promotional

avenue and they are satisfied in that post. If the

petitioners did not exercise their option to revert back to

the ministerial cadre at the right time to qualify

themselves for further promotion, the appellants cannot be

deprived of the benefit they derived by continuing in the

lower cadre on account of that situation. The High Court

was clearly wrong in holding that the petitioners have

acquired eligibility by rendering service in the cadre of

Inspectors since their lien had been suspended.

The decision in State of Mysore's case (supra) is

distinguishable on facts. Rule 53(b)(i) of the Mysore

Service Rules considered in that case provided that service

in another post whether in a substantive or officiating

capacity shall count for increments in the time scale

applicable to the post on which the Government servant holds

a lien or as well as in the time scale applicable to the

post, if any, on which he would hold a lien had his lien not

been suspended. The Court noticed that the service of an

officer on deputation to another department is treated as

equivalent to the service in the parent department under the

rule. On account of that equation between the service in

the two departments, it was held that the service on

deputation should be deemed to be rendered in the parent

department. The ratio of the decision is, therefore, not

applicable in the present case.

In C. Narasinga Rao & Ors. v. State of Andhra Pradesh

by its Secretary, Vol. 2 1968 S.L.R.644, Rule 9 of the

Andhra Pradesh State and Subordinate Service Rules provided

that service rendered in the transferred department should

be deemed to have been rendered in the parent department for

promotion and seniority. And when the rule is thus

specific, it was held that the petitioners' service in the

police department should be deemed to have been rendered in

the parent department entitling them to promotion.

If the Government employee was on deputation or holding

a post in another cadre, the lien shall revive as soon as he

ceased to hold the post in another cadre. There is no

revival of the lien during the period the employee continues

to hold a post in another cadre. Therefore, during the

period the suspension is operative, the employee cannot

claim that he had been continuing in the post in the parent

cadre and gaining experience. When the rule is clear and

specific that for the purpose of promotion from the cadre of

Superintendents, Assistants, Accountants, Senior Scale

Stenographers to the post of Excise and

741

Taxation Officers, the eligibility qualification is

'experience of working 'as such' for five years' the

employee is not entitled to claim the experience in the ex-

cadre as experience of working in the ministerial cadre.

In the light of what has been stated above, we are

unable to uphold the decision of the High Court. The writ

petitions are liable to be dismissed. Accordingly, we allow

the appeals.

R.N.J. Appeals allowed.

742