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PETITIONER:

RAM SEWAK PRASAD

Vs.

RESPONDENT:

STATE OF U.P. AND ORS.

DATE OF JUDGMENT11/07/1991

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

FATHIMA BEEVI, M. (J)

CITATION:

1991 AIR 1818 1991 SCR (2) 884

1991 SCC Supl. (2) 114 JT 1991 (3) 84

1991 SCALE (2)45

ACT:

Uttar Pradesh Subordinate Excise Service Rules, 1967-

Rule 3(ix) and 5 and Uttar Pradesh Subordinate Excise

Service Rules, 1983- Rule 3(g), 3(j), 5 and 21(1)-

Interpretation of-Excise Inspector-Appointed on ad hoc

basis-Held entitled to claim seniority and promotion vis-a-

vis those who were appointed later in point of time.

HEADNOTE:

The petitioner was appointed as Excise Sub-Inspector in

February 1964 in the State of U.P. and was later promoted

as Excise Inspector on ad hoc basis on February 24, 1972.

He was confirmed as Excise Sub-Inspector w.e.f. April 1,

1967. Though promoted on ad hoc basis, the petitioner has

continuously been working as Excise Inspector since February

24, 1972. Raghubir Singh and Ram Dhan, respondents are

direct recruits to the post of Excise Inspector and they had

joined the cadre later in point of time than the petitioner

i.e. after 24.2.1972. They were promoted to the post of

Excise Superintendent on 29.9.1983 and the petitioner was

ignored. Being aggrieved the petitioner has filed this

petition under Article 32 of the Constitution.

According to the State and other respondents, the

petitioner's promotion to the post of Excise Inspector being

on ad hoc basis was against the 1967 rules, he continues to

be an ad hoc appointed and as such is not a member of the

Excise Inspectors service constituted under the rules. His

name has not been shown in the seniority list of Excise

Inspectors. According to them his case has rightly not been

considered for further promotion. On the other hand, it is

contended on behalf of the petitioner that the 1967 Rules in

as much as they confine the channel of promotion to Tari

Inspectors and Clerks were wholly arbitrary and as such

violative of Articles 14 and 16 of the Constitution. It is

submitted on his behalf that the petitioner is, in any case,

entitled to be promoted substantively to the cadre of excise

Inspectors under 1983 rules and he is also entitled to

fixation of seniority by counting his entire service as

Excise Inspector from 1972 onwards. Respondents concede

that the petitioner can be appointed under 1983 rules, but

contend that he is not entitled to the benefit of past

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service for purposes of seniority.

885

Allowing the writ petition this Court

HELD: When the 1967 rules were enforced on May 24, 1967

there was in existence a permanent cadre of Excise Sub-

Inspectors. The nature of duties of both the cadres were

similar. The Excise Inspectors, on molasses duty of the

ranges, used to supervise the work of excise Sub-Inspectors

under them. The Excise Sub-Inspectors were thus natural

contenders for the post of Inspectors. There was no

justification whatsoever with the framers of the 1967 rules

to have kept the Excise Sub-Inspectors out of the channel of

promotion to the post of Excise Inspectors. Prime facie

there is no escape from the conclusion that the Excise Sub-

Inspectors were dealt with in an arbitrary manner by the

framers of 1967 rules. [890H-891B]

It is not disputed that under the 1983 rules, the

petitioner is eligible to be promoted and appointed as

Excise Inspector. [891C-D]

The 1983 rules came into force on March 24, 1983. There

is nothing on the record to show as to why the petitioner

was not considered for promotion under the 1983 rules till

today. Inaction on the part of the State Government is

wholly unjustified. The petitioner has been made to suffer

for no fault of his. He has been serving the State

Government as Excise Inspector since February 24, 1972

satisfactorily. [891E]

Rule 21(i) of the 1983 rules specifically permits

substantive appointment to the cadre of Excise Inspectors

with back date. In all probability the provision of back

date appointment was made in the 1983 rules to do justice to

persons like the petitioner. The petitioner is eligible

under the rules to be appointed as Excise Inspector by way

of promotion. Accordingly the Court directed that the

petitioner shall be deemed to be appointed by way of

promotion as substantive Excise Inspector under the 1983

rules with effect from February 24, 1972. The petitioner

shall be entitled to the benefit of his entire period of

service as Excise Inspector from February 24, 1972 towards

fixation of his seniority in the cadre of Excise Inspector.

The petitioner shall be considered for promotion to the post

of Excise Superintendent from a date earlier than the date

when respondents Ram Dhan and Raghubir Singh were promoted

to the said post. The petitioner shall also be entitled to

be considered to the post of Assistant Excise Commissioner

in accordance with the rules from a date earlier than the

date when any of his juniors were promoted to the said post.

[891G, 892B-E]

None of the respondents who have already been promoted

to the

886

higher rank of Excise Superintendents or Assistant Excise

Commissioners be reverted to accommodate the petitioner or

any other person similarly situated. The State Government

shall create additional posts in the cadre of Excise

Superintendents and Assistant Excise Commissioners to

accommodate the petitioner and other similar persons, if

necessary. [892F]

Masood Akhtar Khan & Ors. v. State of Madhya Pradesh,

[1990] 4. S.C.C. 24; Direct recruits Class-II Engineering

Officers Association v. State of Maharashtra & Ors., [1990]

2 S.C.C. 715; P. Mahendran & Ors, etc. v. State of Karnataka

JUDGMENT:

Singh & Ors., [1964] 4 S.C.R. 964; Krishena Kumar & Ors. v.

Union of India & Ors., [1990] 4 S.C.C. 207; A.K. Bhatnagar &

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Ors. v. Union of India & Ors., [1990] 2 Scale 949; Baleshwar

Dass & Ors. etc. v. State of U.P. & Ors., [1981] 1 S.C.C.

449; Narender Chadha & Ors. v. Union of India & Ors., [1988]

3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc. v. State

of U.P. & Ors., [1990] 4 J.T. 211, referred to.

&

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 13704

of 1983.

(Under Article 32 of the Constitution of India)

P.N. Lekhi and M.K. Garg for the Petitioner.

Prithvi Raj, P.P. Rao, Govind Mukhoty, Satish Chander,

Raju Ramachandran, Mrs. S. Dikshit, A.K. Sangal, P.K.

Chakraborty. Ms. Sadhya Goswami and Y.C. Maheshwari for the

Respondents.

K.R. Gupta, Smt. Nanita Sharma, R.C. Gubrele, Vivek

Sharma and O.P. Sharma for the Intervener.

The Judgment of the Court was delivered by

KULDIP SINGH, J. Ram Sewak Prasad, the petitioner

before us, was appointed as Excise Sub-Inspector, in the

State of Uttar Pradesh in February, 1964 and was promoted

to the post of Excise Inspector on ad hoc basis on February

24, 1972. He was confirmed as Excise Sub-Inspector by an

order dated December 2, 1972 with effect from April 1, 1967.

Though promoted on ad hoc basis the petitioner

887

has continuously been working as Excise Inspector since

February 24, 1972.

Raghubir Singh and Ram Dhan, respondents are direct

recruits to the post of Excise Inspector. The joined as

such on March 29, 1972 and May 14, 1972 respectively. They

were promoted to the post of Excise Superintendent by an

order dated September 29, 1983. It is not disputed that the

petitioner was not considered for promotion alongwith the

respondents or at any time thereafter. Even his name was

not shown in the seniority list of Excise Inspectors

circulated from time to time. The respondents, including

the State Government, have taken the stand that the

petitioner's promotion to the post of Excise Inspector was

against the rules, he continues to be an ad hoc appointee

and is not a member of the Excise Inspectors Service

constituted under the rules. For that reason he is neither

been shown in the seniority list of Excise Inspectors nor

considered for promotion to the post of Excise

Superintendent.

It is necessary to examine the relevant statutory rules

regulating recruitment and conditions of service of the

Excise Inspectors. Rule 3(ix) and 5 of the Uttar Pradesh

Subordinate Excise Service Rules, 1967 (hereinafter called

`1967 rules') are as under:

"3(ix). "Member of the service" means a person

appointed in a substantive capacity under the

provisions of these rules, or of rules in force

previous to the enforcement of these rules to a

post in the cadre of the service"

..5. Sources of recruitment-Recruitment to the

service shall be made-

(a) by direct recruitment of candidates, on the

result of a combined competitive examinations

conducted by the Commission, who having been

selected in the prescribed manner for undergoing

practical training have completed the course of

training and passed the departmental examination

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prescribed in rule 23:

Provided that no candidate shall be allowed

to avail of more than three chances for

appearing at the competitive examination;

(b) by promotion of permanent clerks of the

office at

888

the Headquarters of the Excise Commissioner and

other regional and Subordinate Excise Offices of

Assistant Excise Commissioners and

Superintendents of Excise in Uttar Pradesh; and

(c) by promotion of permanent Tari Supervisors

The 1967 rules were superseded by the Uttar Pradesh

Subordinate Excise Service Rules, 1983 (hereinafter called

1983 rules) which came into force on March 24, 1983. Rule

3(g), 3(j), 5 and 21(1) of the 1983 rules are reproduced

hereinafter:

"3(g). "Member of Service" means a person

substantively appointed under or the rules or

orders in force prior to the commencement of these

rules to a post in the cadre of the service".

"3(j). "Substantive appointment" means an

appointment, not being an ad-hoc appointment, on a

post in the cadre of the service, made after

selection in accordance with the rules and, if

there are no rules, in accordance with the

procedure prescribed for the time being by

executive instructions, issued by the Government."

Sources of Recruitment."5. Recruitment to the

various categories

of posts in this

service shall be made

from the following

sources:

(A) EXCISE INSPECTOR

(1) 90% by direct recruitment on the result of a

combined competitive examination conducted by the

Commission.

(2) 10% by promotion from amongst the permanent

sub-Excise Inspectors.

"Rule 21(1) Except as hereinafter provided, the

seniority of persons in any category of post shall

be determined from the date of the order of

substantive appointment and if two or more persons

are appointed together, by the order in which their

names are arranged in the appointed order;

889

Provided that if the appointment order

specifies a particular back date with the effect

from which a person is substantively appointed,

that date, will be deemed to be the date of order

of substantive appointment and, in other case it

will mean the date of issue of the order;"

Mr. Satish Chandra, learned senior advocate, appearing

for some of the respondents who are direct recruits of

1982/83 has contended that the 1967 rules were holding the

field when the petitioner was promoted as Excise Inspector

on ad hoc basis. According to him only clerks and Tari

Supervisors could be considered for promotion to the post of

Excise Inspector under rule 5 of the 1967 rules and the

Excise Sub-Inspectors were not eligible. The petitioner's

promotion being in violation of the 1967 rules, he was not a

member of the service and as such was rightly not shown in

the seniority list of Excise Inspectors. He, however,

accepts the position that the petitioner can be considered

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for promotion to the post of Excise Inspector under the 1983

rules and would become member of the service from the date

of promotion under the said rules. Mr. Satish Chandra

finally contended that the appointment of the petitioner

from 1972 to 1983 being violative of 1967 rules, the benefit

of the said service cannot be given to the petitioner

towards seniority in the cadre of Excise Inspectors. In

support of his arguments Mr. Satish Chandra relied upon the

judgments of this Court in Masood Akhtar Khan and Others v.

State of Madhya Pradesh and Others, [1990] 4 S.C.C. 24 and

Direct recruits class-II Engineering Officers Association v.

State of Maharashtra and Others, [1990] 2S.C.C. 715. Mr.

Govind Mukhoty, Mr. P.P. Rao and Mr. O.P. Sharma, learned

senior advocates appearing for various respondents

reiterated, with different flavour, the arguments advanced

by Mr. Satish Chandra. They further cited P. Mahendran and

Ors etc. v. State of Karnataka and Ors. etc., [1990] 1 SCC

411; State of Punjab v. Jagdip Singh and Ors., [1964' 4 SCR

964; Krishena Kumar and Ors. v. Union of India and Ors.,

[1990] 4 SCC 207 and A.K. Bhatnagar and Ors. v. Union of

India and Ors., [1990] 2 Scale 949. Mr. Prithviraj, learned

senior advocate appearing for the State of Uttar Pradesh

stated that it may be possible to absorb the petitioner in

the cadre of Excise Inspectors from the date of enforcement

of the 1983 rules but the benefit of service rendered by him

as Excise Inspector prior to that date cannot be given to

him.

Mr. P.N. Lekhi, learned senior advocate appearing for

the petitioner vehemently argued that the petitioner was

promoted in `public interest' as Excise Inspector in the

year 1972 and since then he

890

has been working as such continuously. He is being paid the

same salary for doing the same work as is being done by the

directly recruited Excise Inspectors. There can no

justifiable reason to treat the petitioner as an ad hoc

Excise Inspector even after working as such for almost two

decades. According to him the 1967 rules which confined the

channel of promotion to Tari Inspectors and Clerks were

wholly arbitrary and as such violative of Articles 14 and 16

of the Constitution of India. The Excise Sub-Inspectors are

at a lower-rung in the same hierarchy of service to which

Excise Inspectors belong. The Sub-Inspectors perform

similar duties of less responsibility. Mr. Lekhi further

contended that providing avenue of promotion to Tari

Inspectors and Clerks who had no similarity or service0link

with the cadre of Excise Inspectors and depriving the same

to the Excise Sub-Inspectors render the 1967 rules arbitrary

and discriminatory. He relied upon Baleshwar Dass and Ors.

etc. v. State of U.P. and Ors., [1981] 1 SCR 449; Narender

Chadha and Ors. v. Union of India and Ors., [1986] 1 SCR

211; Rajendera Parsad Dhasmane v. Union of India and Ors.,

[1988] 3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc.

v. State of U.P. and Ors., [1990] 4 J.T. 211. Mr. Lekhi

finally submitted that the petitioner is, in any case,

entitled to be promoted substantively to the cadre of Excise

Inspectors under the 1983 rules and he is entitled to

fixation of seniority by counting his entire service as

Excisa Inspector from 1972 onwards.

It is not necessary to go into the judgments cited by

the learned counsel for the parties. The judgments are on

the peculiar facts of these cases and do not render much

assistance to resolve the controversy before us.

The 1967 rules provided recruitment to the cadre of

Excise Inspectors by way of direct recruitment and by

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promotion. Recruitment by promotion was only confined to

permanent clerks in the office of Excise Commissioner and

Tari Supervisors. The Excise Sub-Inspectors were not

eligible. On the plain interpretation of 1967 rules Mr.

Satish Chandra is justified to contend that the petitioner

was not eligible for promotion to the post of Excise

Inspector and as such he could not be member of the Uttar

Pradesh Subordinate Excise Service as constituted under the

1967 rules. On the other hand there is plausibility in the

argument of Mr. P.N. Lekhi that rule 5 of the 1967 rules

which denies avenue of promotion to the Excise Sub-

Inspectors is arbitrary and discriminatory. When the 1967

rules were enforced on May 24, 1967 there was in existence a

permanent cadre of Excise Sub-Inspectors. The nature of

duties of both the cadres

891

were similar. The Excise Inspectors, on molasses duty of

the ranges, used to supervise the work of Excise Sub-

Inspectors under them. The Excise Sub-Inspectors were thus

natural contenders for the post of Inspectors. There was no

justification whatsoever with the framers of the 1967 rules

to have kept the Excise Sub-Inspectors out of the channel of

promotion to the post of Excise Inspectors. Prima facie

there is no escape from the conclusion that the Excise Sub-

Inspectors were dealt with in an arbitrary manner by the

framers of 1967 rules. However, the view we propose to take

on the interpretation of 1983 rules it is not necessary for

us to deal with the respective arguments of the learned

counsel for the parties regarding the 1967 rules.

Rule 5 of the 1983 rules provides recruitment to the

cadre of Excise Inspectors from two sources, 90% by direct

recruitment and 10% by promotion from amongst the permanent

Excise Sub-Inspectors. It is not disputed that under the

1983 rules the petitioner is eligible to be promoted and

appointed as Excise Inspector. In the writ petition the

petitioner has specifically pleaded that the service record

of the petitioner is unblemished and he is holding the post

of Excise Inspector within the 10% promotion quota provided

for the permanent Excise Sub-Inspectors. The State

Government in its counter has not denied these averments.

The 1983 rules came into force on March 24, 1983. There is

nothing on the record to show as to why the petitioner was

not considered for promotion under the 1983 rules till

today. Inaction on the part of the State Government is

wholly unjustified. The petitioner has been made to suffer

for no fault of his. He has been serving the State

Government as Excise Inspector since February 24, 1972

satisfactorily. Least the State Government could do was to

consider the petitioner under the 1983 rules. Mr.

Prithviraj, learned counsel for the State of Uttar Pradesh

has however fairly stated that the State Government is

willing to promote the petitioner to the cadre of Excise

Inspectors under the 1983 rules effect from the date of

enforcement of the said rules.

Rule 21(1) of the 1983 rules provides that the

seniority of a person in any category of post shall be

determined from the date of the order of substantive

appointment. First proviso provides that if the appointment

order specifies a particular back date with effect from

which a person is substantively appointed then the said

back-date shall be deemed to be the date of order of

substantive appointment. It is thus obvious that rule 21(1)

of the 1983 rules specifically permits substantive

appointment to the cadre of Excise Inspectors with back

date. The framers of the 1983 rules were conscious that the

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cadre of

892

Excise Sub-Inspectors was in existence from 1964 onwards and

some of them were promoted to the post of Excise Inspectors

much earlier to the enforcement of the 1983 rules. In all

probability the provision of back-date appointment was made

in the 1983 rules to do justice to persons like the

petitioner. The petitioner is eligible under the rules to

be appointed as Excise Inspector by way of promotion. It is

not disputed that the petitioner was appointed as Excise

Inspector on February 24, 1972 and he has been actually

working in the said post continuously from that date and

has been drawing the salary of the post of Excise Inspector.

This is a fit case where the petitioner should be appointed

as Excise Inspector under the 1983 rules by giving him back

date appointment with effect from February 24, 1972.

We, therefore, hold that the petitioner shall be deemed

to be appointed by way of promotion as substantive Excise

Inspector under the 1983 rules with effect from February 24,

1972. The petitioner shall be entitled to the benefit of

his entire period of service as Excise Inspector from

February 24, 1972 towards fixation of his seniority in the

cadre of Excise Inspector. We further direct that the

petitioner shall be considered for promotion to the post of

Excise Superintendent from a date earlier than the date when

respondents Ram Dhan and Raghubir Singh were promoted to the

said post. The petitioner shall also be entitled to be

considered to the post of Assistant Excise Commissioner in

accordance with the rules from a date earlier than the date

when any of his juniors were promoted to the said post.

We make it clear that none of the respondents who have

already been promoted to the higher rank of Excise

Superintendents or Assistant Excise Commissioners be

reverted to accommodate the petitioner or any other person

similarly situated. The State Government shall create

additional posts in the cadre of Excise Superintendents and

Assistant Excise Commissioners to accommodate the

petitioner and other similar persons, if necessary.

The writ petition is allowed with costs in the above

terms. We quantify the costs as Rs.10,000 to be paid by the

State of Uttar Pradesh.

Y.Lal. Petition allowed.

893