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PETITIONER:

UNION OF INDIA & ORS.

Vs.

RESPONDENT:

S.N. DUBEY & ORS.

DATE OF JUDGMENT: 13/08/1998

BENCH:

S.C. AGRAWAL, M. SRINIVASAN, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.C. AGRAWAL, J. :

The question that falls for consideration in this

appeal relates to assignment of year of allotment for the

purpose of fixation of seniority in the Indian

Administrative Service [hereinafter referred to as `the

Service'] to Shripati Narain Dubey, the contesting

respondent [hereinafter referred to as `the respondent'].

The respondent was appointed as an Assistance Professor of

Civil Engineering in the Department of Industries and

Technical Education, a Class II service of the Government of

Bihar, in July 1968 and he jointed the said post on August

13, 1968. He was confirmed on the said post vide

notification No. 5036 dated December 13, 1969. He was

promoted as Associate Professor of Civil Engineering on May

21, 1975. He worked in the various posts under the

Government of Bihar and vide notification No. 37 dated May

1, 1976 he was appointed as Assistant Director in the Bureau

of Public Enterprises. By order dated September 3, 1977 the

post of Assistant Director was upgraded to that of Deputy

Secretary-cum-Deputy Director. Subsequently by notification

dated October 30, 1978 the post of Deputy Secretary-cum-

Deputy Director of the Bureau of Enterprises was

redesignated as Joint Secretary-cum-Joint Director. The

respondent was appointed to the Service by Notification

Dated May 12, 1981. He was assigned 1977 as the year of

allotment. In this regard, letter dated April 11, 1986 was

addressed by the Under Secretary from the Department of

Personnel and Training, Government of India, to the Chief

Secretary, Bihar, Patna, wherein it was stated that the

matter of determination of the year of allotment of the

respondent has been examined in consultation with the Union

Public Service Commission in accordance with the provisions

of Rule 3 (3)(c) of the Indian Administrative Service

(Regulation of Seniority) Rules, 1954 [hereinafter referred

to as `the Seniority Rules'] and that the year of allotment

of the respondent cannot be determined earlier than 1977

since, as per the information furnished by the State

Government, Shri Yadu Nath is the junior most officer of the

State Civil Service who was appointed in the Service before

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and in comparison to the length of service of the respondent

in the State in a Gazetted post, Shri Yadu Nath Jha had

served in the State Civil Service for a longer period and

hence, as per the proviso to Rule 3(3)(c) of t he Seniority

Rules, the year of allotment of the respondent could not be

determined earlier than 1877. The representation submitted

by the respondent against the said determination of 1977.

The representation submitted by the respondent against the

said determination of 1977 as the year of allotment was

rejected by the Government of India, Department of Personnel

and Administrative Reforms, Ministry of Home Affairs, by

letter dated July 14, 1987. Feeling aggrieved by the

aforesaid decision whereby 1977 was determined as the year

of allotment for the purpose of fixation of his seniority in

the Service, the respondent moved the Central Administrative

Tribunal, Patna Bench, Patna, [hereinafter referred to as

`the Tribunal'], by filing O.A.No. 424 of 1988, wherein he

claimed that the year of allotment should have been

determined as 1971 and not 1977. The said application of the

respondent was allowed by the Tribunal by judgment dated

September 17, 1990. The Tribunal quashed the orders dated

April 11, 1986 as well as July 14, 1987 and directed the

Union of India to fix 1971 as the year of allotment of the

respondent and place him below Shri Dev Das Chhotray the

junior most direct recruit of the year 1971. In the said

judgment the Tribunal, following its earlier judgment in

K.V. Nambiar v. Union of India & Ors., decided by the

Ernakulam Bench of the Tribunal, held that the proviso to

Rule 3(3)(c) of the Seniority Rules was unconstitutional and

void. In Special Leave Petitions Nos. 8773 of 1990 and 3127

of 1991 filed by the Union of India against the decisions of

the Tribunal in the cases of K.V. Zambiar and the respondent

this Court, by order dated April 8, 1991, granted special

leave to appeal and passed the following order :-

"Special leave granted.

Heard counsel.

We are inclined to take the

view that the Central

Administrative Tribunal should not

have struck down Rule 3(3)(c) of

the Indian Administrative Service

(Regulation of Seniority) Rule,

1954, merely n the basis that the

two instances which had come before

it fr consideration were not being

adequately answered years and t he

challenge that has now come fr

consideration was the rare instance

where under the Rules, it became

difficult to deal with the matter.

Union of India has in its affidavit

indicated that exceptional

situations as arising in the case

of the two respondents should be

answered under the residual Rules

and if not covered under the Rules,

under the administrative powers and

for that purpose the Rules should

not have been truck down. Counsel

for Union of India has told us

during the course of hearing of the

appeals that the relief granted by

the Central Administrative Tribunal

so far as the two officers are

concerned may be sustained in terms

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of the directions of the Tribunal

but the further direction that the

Rule referred to above is struck

down may be set aside. Counsel for

the respondents have no objections

to the submission of the appellant

being accepted.

We are inclined to accept the

submission and while vacating the

decision of the Tribunal on the

question of the vires of the Rules,

we sustain the reliefs granted by

the Tribunal in terms. Both the

appeal are partly allowed.

No costs."

Civil Appeal No. 1755 of 1991 arises out of Special

Leave Petition filed against the judgment of the Tribunal

dated September 17, 1990 in O.A. No. 424 of 1988 filed by

the respondent. The Union of India filed a Review Petition

for the review of the said order dated April 8, 1991 passed

by this Court. In the said Review Petition it was pointed

that in the case of the respondent the seniority has been

fixed in accordance with the provisions of Rule 3(3)(c) of

the Seniority Rule and that the relief granted by the

Tribunal could be sustained in so far as K.V. Nambiar was

concerned but the said relief could not be sustained in the

case of the respondent. The Review Petition filed by the

Union of India was dismissed by this Court by order dated

July 31, 1991. Thereafter the Central Government passed an

order dated August 19, 1991 whereby the year of allotment of

the respondent was revised from 1977 to 1971 and it was

directed that for the purpose of inter se seniority he would

be placed below Shri D.D. Chhotray (RR 71) in the gradation

list of the IAS officers borne on the cadre of Bihar. The

said order dated August 19, 1991 adversely affected the

seniority of the officers who had been assigned years of

allotment between 1971 to 1977. Mukesh Nandan Prasad and

Ahok Kumar were appointed to the Service by direct

recruitment and had been signed 1972 and 1974 as the year of

allotment respectively. As a result of order dated August

19, 1991 whereby his year of allotment was revised from 1977

to 1871 the respondent became senior to both these officers.

The said officers filed a Writ Petition [W.P. (c) No. 290 of

1992] in this Court wherein they challenged the validity of

the order dated August 19, 1991 regarding the revision of

the year of allotment of the respondent. It was urged that

the respondent h ad been correctly assigned 1977 as the year

of allotment on the basis of the proviso to Rule 3(3)(c) of

the Seniority Rules and since the validity of the said

provision has been upheld by this Court, the year of

allotment of the respondent cannot be altered from 1977 to

1971. On July 21, 1998 the learned counsel for the

petitioners in the said Writ Petition submitted that the

Writ Petition may be permitted to be treated as Review

Petition for review of the judgment of this Court dated

April 8, 1991 in Civil Appeals Nos. 1755 and 1784 of 1991

for the reason that the petitioners were not parties in

those proceedings but are adversely affected by the judgment

of this Court dated April 8, 1991 and that the said judgment

of this Court came to the knowledge of the petitioners only

after the order dated August 19, 1991 was passed on the

basis the said judgment and that soon thereafter the

petitioners had filed the Writ Petition in this Court. In

view of the said statement of the learned counsel, this

Court, by order dated July 21, 1998, directed that the said

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Writ Petition be treated as Review Petition for review of

the judgment of this Court in Civil Appeals Nos. 1755 and

1784 of 1991 and thereafter the said Writ Petition was

registered as Review Petition Nos. 1391-1392 of 1998.

At the time of the hearing of the Review Petition on

July 30, 1988 Shri Ranjit Kumar, the learned counsel for the

petitioners, stated that the petitioners have grievance only

against the order passed by this Court in Civil Appeal No.

1755 of 1991 relating to the respondent and they do not have

any grievance against the order passed in Civil Appeal No.

1784 of 1991 relating to K.V. Nambiar and that the Review

Petition may, therefore, be treated as seeking review of the

order dated April 8, 1991 passed by this Court in Civil

Appeal No. 1755 to 1991. After hearing Ranjit Kumar, the

learned counsel for the petitioners in the Review Petition,

and Shri H.N. Salve, the learned senior counsel appearing

for the respondent, this Court, by order dated July 30,

1998, allowed the Review Petition and the order dated April

8, 1991 to the extent it related to Civil Appeal No. 1755 of

1991 was set aside. Civil Appeal No. 1755 of 1991 was it

thereafter taken up for hearing and the petitioners, Mukesh

Nandan Prasad and Ashok Kumar, were ordered to be impleaded

as parties in the said appeal.

We have heard Shri Ranjit Kumar and Shri P.P. Malhotra,

the learned senior counsel for the Union of India in support

of the appeal and Shri H.N. Salve, the leaned counsel for

the respondent.

Under Rule 4 of the Indian Administrative Service

(Recruitment) Rules, 1965 [hereinafter referred to as `the

Recruitment Rule'] recruitment to the Service can be made

(i) by competitive examination; (ii) by selection of persons

among the Emergency Commissioned Officers and Short Service

Commissioned Officers of the Armed Force of the Union; (iii)

by promotion of substantive member of a State Civil Service;

and (iv) by selection in special cases from among persons,

who hold in a substantive capacity gazetted posts in

connection with the affairs of a State and who are not

members of a State Civil Service. Sub-rule(1) of Rule 8 of

the Recruitment Rules deals with recruitment to the Service

by promotion from amongst the substantive members of a State

Civil Service and sub-rule (2) of Rule 8 deals with

recruitment by selection of a person of outstanding ability

and merit serving in connection with the affairs of the

State who is not a member of the Date Civil Service of that

State but who holds a gazetted post in a substantive

capacity. Seniority in the service is determined on the

basis of year of allotment. Rule 3(1) of the Seniority Rules

lays down that every officer shall be assigned a year of

allotment in accordance with the provisions of the said

Rule. Sub-Rule (2) of Rule 3 deals with assigning the year

of allotment to an officer in the Service at the

commencement of the Seniority Rules. Sub-rule (3) of Rule 3

relates to assigning of year of allotment to an officer

appointed to the Service after the commencement of the

Seniority Rules. Clause (b) of sub-rule (3) of Rule 3 deals

with assigning the year of allotment to an officer appointed

to the Service after the commencement of the Rules where the

officer is appointed to the Service by promotion in

accordance with sub-rule (1) of Rule 8 of the Recruitment

Rules, while clause (c) of sub-rule (3) of Rule 3 relates to

assigning the year of allotment to a non-State Civil

Service officer who is appointed to the Service by selection

in accordanced with sub-rule (2) of Rule 8 of the

Recruitment Rules. In the present case we are concerned with

assigning of year of allotment to the respondent, a non-

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State Civil Service Officer, who was appointed to the

Service by selection in accordance with sub-rule (2) of Rule

8 of the Recruitment Rules. The determination of the year of

allotment of the respondent is governed by Rule 3(3)(c) of

the Seniority Rules which, at the relevant time, provided as

under :-

"(3) The year of allotment of an

officer appointed to the Service

after the commencement of these

rules, shall be----

(c) where the officer is appointed

to the Service by selection in

accordance with sub-rule (2) of

rule 8 of the Recruitment Rules,

such year as may be determined ad

hoc by the Central Government on

the recommendations of the State

Government concerned and in

consultation with the Commission :

Provided that he shall not be

allotted a year earlier than the

year of allotment of an after

appointed to the Service in

accordance with sub-rule (1) of

rule 8 of the Recruitment Rules,

whose length of service in the

State Civil Service is more than

the length of continuous service of

the former in connection with the

affairs of the State."

The Government of India had issued a circular/letter

dated June 6, 1978, with regard to fixation of seniority

under Rule 3(3)(c) of the Seniority Rules of non-State Civil

Service Officers recruited to the Service by selection. In

paragraph 1 of the said circular/letter it was stated :-

"I am directed to say that in this

Department's letter No.

14014/83/76-AIS (I) dated the

February 15, 1977 on the above-

mentioned subject it is laid down

that the seniority of a non-State

Civil Service Officer appointed to

IAS by selection shall be

determined in consultation with

UPSC on the analogy of Rule 3(3)(b)

of the IAS (Regulation of

Seniority) Rules, 1954 subject to

the proviso to Rule 3(3)(c) of the

Said rules."

In accordance with paragraph 1 of circular/letter

dated June 6, 1978 the seniority of a non-State Civil

Service officer appointed to the Service by selection was

required to be determined in consultation with UPSC on the

analogy of Rule 3(3)(b) of the Seniority Rules subject to

proviso to Rule 3(3)(c) of the Seniority Rules. The

respondent has to be allotted the year of allotment by

applying the provisions laid down in Rule 3(3)(b) of the

Seniority Rules and the proviso to Rule 3(3)(c) of the said

Rules.

The letters of the Government of India dated April 11,

1986 and July 14, 1987, whereby respondent was allotted 1977

as the year of allotment, are based on Rule 3(3)(b) read

with proviso to Rule 3(3)(c) of the Seniority Rules. The

letter dated April 11, 1986 proceeds on the basis that as

per the information furnished by the State Government the

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post of Associate Professor (Civil Engineering) in the pay

scale of 1200-1900 under the State Government held by the

respondent till My 22, 1975 can be considered as equivalent

to senior scale of pay of the Service and hence the relevant

date for determination of his seniority in equivalence to

Rule 3(3)(b) of the Seniority Rules could be May 22, 1975

and Shri Dev Das Chhotry (RR : 71) is the junior most

regular recruitment officer who was appointed in the senior

scale of pay of the Service with effect form December 20,

1974, i.e., on a date prior to May 22, 1975, the respondent

would have been entitled to be given the seniority of the

year 1971 in the Bihar Cadre of the Service as per Rule

3(3)(c) of the Seniority Rules but, as per the information

furnished by the State Government, Shri Yadu Nath Jha (State

Civil Service : 1977) is the junior most officer of the

State Civil Service who was appointed in the Service before

and in comparison to the length of service of the respondent

in the State in a gazetted post, he has served in the State

Civil Service for a longer period and hence as per the

proviso to Rule 3(3)(c) of the Seniority Rules, the year of

allotment of the respondent cannot be determined earlier

than 1977, the year of allotment of Shri Yadu Nath Jha. It

would thus appear that the year 1977 was assigned as the

year of allotment to the respondent in accordance with the

proviso to Rule 3(3)(c). The said order has been quashed by

the Tribunal by its judgment dated September, 17, 1990 on

the ground that the proviso to Rule 3(3)(c) had been held to

be unconstitutional and void by the Tribunal in the case of

K.V. Nambiar. Thus, the only ground on which the Tribunal

has proceeded to quash the orders assigning 1977 as the year

of allotment to the respondent was that the proviso to Rule

3(3)(c) could not be applied since it had been held to be

unconstitutional and void in the case K.V. Nambiar. The said

view of the Tribunal regarding the validity of the proviso

to Rule 3(3)(c) was not accepted by this Court in its order

dated April 8, 1991 in the appeal filed by the Union of

India against the judgment of the Tribunal in the case of

K.V. Nambiar. In the said order this Court has observed :--

"We are inclined to take the view

that the Central Administrative

Tribunal should not have struck

down Rule 3(3)(c) of the Indian

Administrative Service (Regulation

of Seniority) Rule, 1954, merely on

the basis that the two instances

which had come before it for

consideration were not being

adequately answered under the

Rules. These Rules have been in

force for almost 36 tears bad the

challenge that has now come for

consideration as the rare instance

where the Rules, it became

difficult to deal with the matter.

Union of India has on its affidavit

indicated that exceptional

situations as arising in the case

of the two respondents should be

answered under the residual Rules

and if not covered under the Rules,

under the administrative powers and

for that purpose the Rules should

not have been struck down."

This Court, while vacating the decision of the Tribunal

on the question of the vires of Rule 3(3)(c) of the

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Seniority Rules, has sustained the relief granted by the

Tribunal to K.V. Nambiar in view of the statement made by

the learned counsel for the Union of India that the said

relief may be sustained. The said decision thus reverses the

view of the Tribunal regarding validity of Rule 3(3)(c) of

the Seniority Rules.

In Union of India & Ors. v. G.K. Sangameshwar & Ors.,

1993 Supp. (3) SCC 697, the question regarding validity of

Rule 3(3)(c) and the circular/letter dated June 6, 1978 came

up for consideration before this Court. After taking note of

the order dated April 8, 1981 passed by this Court in

appeals filed by the Union of India in the case K.V. Nambiar

and the respondent this Court upheld the validity of the

proviso to Rule 3(3)(c) and has observed :-

"We find nothing unjust or

unreasonable in this provision

whereby the seniority of two

officers (one belonging to the

State Civil Service and the other a

non-State Civil Service Officer)

who have been found suitable for

appointment to the Service is so

fixed that a non-State Civil

Service officer does not become

senior to a State Civil Service

officers whose length of service in

the State Civil Service is more

than the length of continuous

service in connection with the

affairs of the State of the non-

State Civil Service officer." [p.

706]

Shri Salve has urged that the said decision in G.K.

Sangameshwar & Ors. (supra) needs reconsideration and has

contended that under Rule 8(2) of the Recruitment Rules only

a person of outstanding ability and merit serving in

connection with the affairs of the State who is not a member

of the State Civil Service of that State but who holds a

gazetted post in a substantive capacity can be appointed to

the Service by selection and, therefore, in the matter of

inter se seniority a non-State Civil Service officer and a

State Civil Service officer cannot be compared and seniority

of a non-State Service officer cannot be made dependent on

the seniority of a State Civil Service officer. We do not

find any merit in this contention. The State Civil Service

is composed of officers who are entrusted with the task of

public administration. The administrative experience gained

by them on various posts involving general administration

enables an officer in the State Civil Service to tackle the

more responsible administrative functions on his promotion

to the Service. A non-State Civil Service officer would not

be having the same degree of administrative exposure as a

State Civil Service officer. The State Civil Service

constitutes the main source for promotion to the Service

because under the Recruitment Rules the two principal modes

for recruitment to the Service are (i) by direct recruitment

by competitive examination, and (ii) by promotion of

substantive members of State Civil Service. The appointment

of non-State Civil Service officers is limited to a small

proportion (15%) of the posts falling in the quota reserved

for recruitment by promotion and selection. [See : Rule 9(1)

of the Recruitment Rules]. In view f the limited degree of a

administrative exposure the experience gained by a non-State

Civil Service officer cannot be equated with the experience

gained by a State Civil Service officer. For the purpose of

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seniority in the Service the length of service of non-State

Civil Service officer cannot, therefore, be equated with the

length of service of a State Civil Service officer. The

proviso to Rule 3(3)(c) f the Seniority Rules proceeds n

this basis since it provides that a non-State Civil Service

officer shall not be allotted a year earlier than the year

of allotment of a State Civil Service officer whose length

of service in the State Civil Service is more than the

length of continuous service of a non-State Civil Service

officer. The requirement of Rule 8(2) of the Recruitment

Rules that selection fro appointment to the Service from

amongst non-State Civil Service officers is to be made of a

person of outstanding ability and merit only means that only

the best among such officers would be selected for

appointment to the Service. The said provision does not have

any bearing on the nature of the experience gained by such

person prior to his appointment to the Service for the

purpose of seniority in the Service. The proviso to Rule

3(3)(c) of the Seniority Rules does not, therefore, suffer

from any infirmity and no ground is made out for

reconsideration of the decisions of this Court upholding the

validity of the said proviso.

It must, therefore, be held that the respondent has to

be assigned the year of allotment in accordance with the

proviso to Rule 3(3)(c) of the Seniority Rules. The learned

counsel for the respondent has not been able to show that if

the proviso is applied the respondent could be assigned a

year of allotment earlier than the year 1977. The

determination of 1977 as the year of allotment of the

respondent under the letters of the Government of India

dated April 11, 1986 and July 14, 1987 was, therefore, in

accordance with Rule 3(3)(c) read with proviso and the

Tribunal was in error in quashing the said orders.

In the circumstances, the judgment of the Tribunal

dated September 17, 1990 in O.A. No. 424 of 1988 filed by

the respondent quashing the orders regarding determination

of the year of allotment of the respondent contained in the

letters dated April 11, 1986 and July 14, 1987 is set aside

and the said O.A. No. 424 of 1988 is dismissed. The order of

the Central Government dated August 19, 1991 which was

passed in compliance with the judgment of the Tribunal dated

September 17, 1990 is also set aside. The Appeal is allowed

accordingly. No order as to costs.