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PETITIONER: GOVIND DATTATRAY KELKAR & ORS.

       Vs.

RESPONDENT: CHIEF CONTROLLER OF IMPORTS & EXPORTS& ORS.

DATE OF JUDGMENT: 01/11/1966

BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) HIDAYATULLAH, M. SIKRI, S.M. BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1967 AIR  839            1967 SCR  (1)  29  CITATOR INFO :  R          1974 SC   1  (24)  R          1975 SC 483  (28)  F          1976 SC 490  (33,208)  D          1977 SC 251  (33,35)  RF         1980 SC2056  (73)  F          1984 SC1291  (29)

ACT: Constitution  of India, 1950, Arts. 14  and  16(1)-Promotees and   direct   recruits-Fixation   of   seniority   between- Constitutional validity.

HEADNOTE: On  30th  November 1955, the Assistant  Controllers  in  the Import  and Export Organisation of the Government  of  India consisted  of 47 officers appointed before 1st January  1952 and 76 departmental promotees appointed between Ist  January 1952  and  30th November 1955, all the  appointments  having been  made  on an ad hoc basis.  The  Union  Public  Service Commission   objected  to  the  appointments.   After   some correspondence the Government decided that the  appointments made before Ist January 1952, should be regularised and that after that date, there should be 75% direct recruits and 25% departmental  promotees.   Pursuant to  that  agreement  the Union Public Service Commission called for applications  and 57  (75%  of  76) Assistant Controllers  were  selected  and appointed by direct recruitment.  The Departmental Promotion Committee  considered  the cases of those who  were  already working  as Assistant Controllers and selected  25  officers out  of  whom 19 (25% of 76) were  appointed.   In  November 1961, a seniority list of Assistant Controllers was prepared in  which  the  19 promotees were placed  above  the  direct recruits,   and  later  appointees  were  arranged  on   the principle  of rotation in the ratio 25 : 75.  The effect  of that  list was to place the petitioners (some of  whom  were working  as Assistant Controllers even before the 57  direct recruits  were appointed) after the aforesaid 123  (47  plus 76)  appointees.  They challenged the list on the  following grounds

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(1)The  petitioners  were  promoted  before  the  new   57 appointments were made, subject to the condition that,  they were  approved  by the Union Public Service  Commission  and that,  therefore,  the direct recruits could not  be  placed over  them;  (2)  the ratio of I : 3  was  embodied  in  the recruitment  rules  made, by the Government of  India  under Art. 309 of the Constitution only in 1962, and as the  rules were not retrospective,, the seniority list was without  any authority  of law and was violative of Arts. 14 and 16;  (3) the ratio was arbitrary and violative of Art. 14; (4)  prior to November 1955, there was only one source of  recruitment, namely by departmental promotion, to the cadre of  Assistant Controllers, and therefore, the decision to relate back  the seniority  of the direct recruits to the period between  Ist January   1952  and  30th  November  1955,  was   based   on ’reservation  for those who were not then in existence,  and amounted   to  carrying  forward  of  vacancies  which   was unconstitutional. HELD : (1) The petitioners were promoted under orders  which stated  that their appointments were made on an  ad  interim basis pending selection of the officers by the Union  Public Service Commission.  In the context in which the petitioners were appointed, it was not the, intention of the  Government that  they were to be -appointed subject to the approval  of the Union Public Service Commission.  The intention 30 of the Government on the contrary was that as the  selection to the posts was impending through the usual channel of  the Union   Public  Service  Commission  from  all  sources   of recruitment,  the petitioners should only be promoted on  an ad  hoc basis.  Therefore, the petitioners had no  right  to the posts of Assistant Controllers. [35 B-E] (2)(a)  The recruitment to the 76 posts was made from  two sources  with  different  qualifications,  namely,  (i)   by promotion  from  the subordinate staff and  (ii)  by  direct recruitment.  Since the preferential treatment of one source was based on the differences between the two sources and the differences have a reasonable relation to the nature of  the office to which recruitment was made, the said  ’recruitment could  legitimately  be sustained on the basis  of  a  valid classification. [33 H; 35 If] (b)Where the recruitment to a cadre was from two  sources, a rotational system would not violate the principle of equal opportunity enshrined in Art. 16(1). [36 A-B] Mervyn Coutinho v. The Collector of Customs, Bombay,  [1966] 3 S.C.R. 600, followed. (3)When the recruitment to certain posts is from different sources,  what ratio would be adequate and  equitable  would depend   upon  the  circumstances  of  each  case  and   the requirements  and needs of a particular post.   Nothing  was suggested in the present case to show that the ratio of 3  : I was flagrant or unreasonable. [36 C] (4)In a case where a service is divided into two parts and there  are two sources of recruitment, one by promotion  and the  other  by direct recruitment, there is no  question  of carrying anything forward from year to year in the matter of annual  intake. when the vacancies that arose  between  1952 and  1955 were filled up subsequently, it was not a case  of vacancies  being carried forward to the subsequent  year  or years.   All that happened was, that certain  vacancies  had arisen  and  for certain reasons they were  not  permanently filled up, but some ad hoc appointments were made in  regard thereto  and subsequently, they were filled up by  permanent appointments. [36 H-37D]

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JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 40 of 1965. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. H.R.  Gokhale,  G. L. Sanghi and B. R. Agarwal,  for  the petitioners. Niren De, Addl.  Solicitor General, R. Ganapathy Iyer and R. N. Sachthey, for respondents Nos. 1-3. N.S. Bindra and K. Baldev Mehta, for respondents Nos. 11, 14 and 27. The Judgment of the Court was delivered by Subba  Rao, C. J. This writ petition raises the question  of the   constitutional   validity  of   the   appointment   of respondents  4  to  74 by direct  recruitment  as  Assistant Controllers of Imports and Exports. 3 1 The  relevant facts may briefly be stated.  The Imports  and Exports  organization came into existence during the  Second World  War.  It was expected to be a temporary  organization and,  therefore, appointments to the various  categories  in the said organization were made on an ad hoc basis.  In  the year   1949   it  comprised  the  following   posts:   Chief Controller, Joint Chief Controller, Deputy Chief Controller, Assistant Chief Controller of Imports and Exports, Executive Officers, Licensing Officers and Junior Licensing  Officers. of  these the last 3 were Class II posts and the  rest  were Class  I posts.  Subsequently, the posts of Assistant  Chief Controllers were redesignated as "Controllers" and the posts of   Executive  Officers,  Licensing  Officers  and   Junior Licensing Officers were converted into one category, namely, Assistant  Controllers,  Class  11.  In the  year  1949  the appointment  of the said officers and their promotions  were governed by the principles enunciated in the Memorandum  No. 30/44-48-Appts. dated June 22, 1949 issued by the Government of India (Ministry of Home Affairs).  But, as no rules  were prescribed  and the appointments were made on ad hoc  basis, the   Union   Public  Service  Commission   rightly   raised objections;  and  after  protracted  correspondence  it  was agreed  in 1955 that the appointments made by  the  Ministry during  1947-1951 should be regularized on the basis of  the record of work and that in regard to subsequent appointments there  should  be  a  ratio of 25  %  for  the  departmental promotees and 75 % for direct recruits.  Ultimately, on June 13,   1962,  the  said  arrangement  was  embodied  in   the recruitment  rules  made by the ;Government of  India  under Art. 309 of the Constitution. There  are  three main categories of employees in  the  said department, namely, (i) those appointed prior to January  1, 1952;  (ii)  those  appointed between January  1,  1952  and November 30, 1955; and (iii) those appointed after  November 30, 1955.  We are now concerned in this petition with  those appointed  after November 30, 1955.  Assistant  Controllers, Class  11,  are  appointed  from  two  sources,  namely,  by promotion  from the lower cadre and by  direct  recruitment. Nothing need be said in this case about the first  category, for  their appointments are not in question.  In the  second category there were 76 posts available for recruitment.   On the  agreed formula of 25% for the department and 75  %  for direct  recruitment, 19 posts would go to  the  departmental candidates and 57 posts to the direct recruits. In  December, 1955, pursuant to an advertisement  issued  by the   Union   Public  Service   Commission,   57   Assistant Controllers  were  appointed by direct  recruitment.   After

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consulting  the  said Commission, the  Government  of  India fixed  the  seniority  of  the  Assistant  Controllers   and prepared a seniority list dated November 30, 1961. 32 At  this  stage it may be mentioned that 76 posts  to  which recruitment was made were temporarily manned by departmental promotees.  The effect of the new recruitment was that their position  of  seniority  was  disturbed  by  reason  of  the application  of the said ratio of 25 % for the  departmental candidates and 75 % for the direct recruits and by reason of the fact that the direct recruits took precedence over  some of  them.   On November 30, 1961, the  Government  of  India prepared a new seniority list and the said seniority list is given  as  Annexure  ’F’ to the  petition.   The  said  list comprises  three categories of officers: the first  category of 47 officers were those that were appointed before January 1, 1952, and whose appointments had been regularized by  the Union  Public  Service Commission; the  second  category  of officers  are  76  in  number  comprising  of   departmental promotion  and  the  nominees of the  Union  Public  Service Commission in the ratio of 25 : 75 respectively as laid down in  the  recruitment  rules,;. and the  third  category  are departmental promotees and the nominees of the Union  Public Service Commission arranged on the principle of rotation  in the  ratio of I : 3. But, in the second category with  which we  are  now  concerned, it appears  that  the  Departmental Promotion  Committee  considered  the  cases  of   Assistant Controllers  who  were  working  on  an  ad  hoc  basis  and selected, on the basis of merit, 25 officers out of whom  19 were  adjusted against the said quota of 25 % and  these  19 officers were placed above the direct recruits.  Serial Nos. 48  to  66  in the list are promotees  so  selected  by  the Departmental Promotion Committee, and serial Nos. 68 to  123 in the said list are direct recruits. The   first  petitioner  joined  the  office  of   the   3rd respondent,  the  Joint Controller of Imports  and  Exports, Bombay, on April 29, 1946, as an Appraiser.  He was promoted to  the post of Assistant Controller with effect from  March 31, 1956; that is to say, he has been holding the post for a period of about 9 years at the time he filed the petition. The  second  petitioner Joined the said office on  March  5, 1941  and  in  due course he was promoted  to  the  post  of Assistant Controller with effect from April 1, 1956.  He was also holding the said post for a period of about 9 years  at the time of filing the petition. The third petitioner joined the said office on May 8 1945 as a  B Grade Clerk and was promoted to the post  of  Assistant Controller with effect from September 4, 1956.  He had  been holding  the  said post for about 81 years at  the  time  of filing the petition. The  4th petitioner joined the said office on July 28,  1943 as a lower division clerk and in due course he was  promoted as  Assistant Controller with effect from November 1,  1961. But  he  was reverted to the post of Section Head  on  June. 14,1963. 3 3 The  effect of the new seniority list prepared  on  November 30,  1961 is that, as the said ratio was applied and as  the direct  recruits. were put above the petitioners and  others similarly situated, the Ist petitioner, who should have been shown at No. 67 in the list but for the new recruitment, was shown  at No. 124; the 2nd petitioner, who should have  been shown at No. 69, was put at No. 132; the 3rd petitioner, who should  have been above all direct recruits,, was not  shown in  the seniority list at all; and the 4th  petitioner,  who

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should  have been above all direct recruits appointed  after November  1,  1961  and  below  the  departmental  promotees appointed  prior to November 1, 1961, was not shown  in  the seniority  Est at an.. The petitioners allege that the  said order dated November 30, 1961 fixing the seniority  violated Art. 16 of the Constitution and that they’ should have  been placed above the direct recruits. Mr.  Gokhale,  learned counsel for the  petitioners,  raised before  us the following points: (i) The rules of 1962  were not retrospective in operation and, therefore, the seniority list  dated November 30, 1961 based on the decision  of  the 2nd  respondent,  Union of India, dated July 29,  1961,  was without  any authority of law and was violative of Arts.  14 and  16  of the Constitution; (ii) prior to  November,  1955 there  was only one source of recruitment to the  cadre  of’ Assistant Controllers and, therefore, the decision to relate back  .the  seniority of the direct recruits to  the  period between January 1, 1952 and November 30, 1955 being based on reservations  to  those  who  were  then  not  in  existence amounted to carrying forward of vacancies which was held  by this Court to be unconstitutional; (iii) the ratio of 75 % : 25 % between direct recruits and promotees was violative  of Art. 14 of the Constitution and (iv) the appointment of  the officers  of  the Ministry of Rehabilitation  to  the  posts reserved  for  direct  recruits  through  the  Union  Public Service Commission violated Art. 14 of the Constitution. The relevant law on the subject is well settled and does not require   further  elucidation.   Under  Art.  16   of   the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any  office under the State or to promotion from one  office to a higher office thereunder.  Art. 16, of the Constitution is  only  an incident of the application of the  concept  of equality  enshrined in Art. 14 thereof.  It gives effect  to the  doctrine of equality in the matter of  appointment  and promotion.   It  follows  that there  can  be  a  reasonable classification   of  the  employees  for  the   purpose   of appointment  or promotion.  The concept of equality  in  the matter  of  promotion  can  be  predicated  only  when   the promotees   are  drawn  from  the  same  source.    If   the preferential’  treatment  of one source in relation  to  the other  is  based  on the differences between  the  said  two sources, and the said difference& have a reasonable relation to the nature of the office or offices to, 34 which   recruitment  is  made,  the  said  recruitment   can legitimately   be  sustained  on  the  basis  of   a   valid classification.   There can be cases where  the  differences between the two groups of recruits may not be sufficient  to give any preferential treatment to one against the other  in the  matter of promotions, and, in that event, a  court  may hold   that  there  is  no  reasonable  nexus  between   the differences and the recruitment.  In short, whether there is a reasonable classification or not depends upon the facts of each  case and the circumstances obtaining at the  time  the recruitment  is  made.   Further,  when  a  State  makes   a classification  between two sources of  recruitment,  unless the  classification  is unjust on the face of it,  the  onus lies upon the party attacking the classification to show  by placing  the  necessary material before the court  that  the said classification is unreasonable and violative of Art. 16 of the Constitution: see Banarsidas v. The State of.   Uttar Pradesh(1). 411 India Station Masters’ and Assistant Station Masters’    Association   v.   General   Manager,    Central Railways(2);  and The General Manager, Southern  Railway  v.

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Rangachari(3). Let  us apply the said principles to the facts of the  case. The ,sheet-anchor of the contentions of the learned  counsel for  the  petitioners was that the petitioners,  along  with others, were promoted before the new appointments were  made as Assistant Controllers, subject to the condition that they were  approved  by the Union Public Service  Commission  and that,  therefore,  the direct recruits could not  be  placed over  them either on the principle of aforesaid ratio or  on the  principle of rotation and that in doing so the  Govern- ment violated the doctrine of equality.  The placing of  the direct recruits over the petitioners and others who had  had long  experience  as  Assistant  Controllers,  the  argument proceeded, was violative of the doctrine of equality.  There would  be much force in this argument had the premises  been correct.  But the documents filed demonstrate that it has no foundation.  The promotion of two of the petitioners, Kelkar and  Deshmukh,  were made by the Government by  Order  dated March 31, 1956; and the other two petitioners were also,  it is  not  disputed,  promoted  under  similar  Orders   dated September  4,  1956 and November I,, 1961.  Paragraph  5  of Order dated March 31, 1956 reads:               "I  am  to add that the  appointments  of  the               Officers mentioned above have been made on  an               ad  interim  basis pending  selection  of  the               officers   by   the   Union   Public   Service               Commission". By  that  time in November, 1955, the Union  Public  Service Commission  had  advertised  for  the  posts  of   Assistant Controllers. (1)  [1956]  S.C.R. 357.                      (2)  [1960]  2 S.C.R. 31 1. (3)  [1962] 2 S.C.R. 586. 35 There was also admittedly correspondence between the Govern- ment and the Union Public Service Commission indicating that the  Union  Public Service Commission  was  questioning  the regularity of the appointments made earlier without  framing rules and without consulting them.  With the said background if the said order is looked into, there cannot be any  doubt that  the order in terms as well as in intent made  only  ad hoc appointments pending the filling up of the posts through the  Union  Public Service Commission.  The  order  says  in terms that the appointment of the officers mentioned therein were  made on an ad interim basis pending selection  of  the officers  by  the Union Public Service Commission.   If  the intention of the Government was that the officers  mentioned therein were appointed subject to the approval of the  Union Public  Service Commission, the phraseology used would  have been different.  It would have run: "the appointments of the officers  mentioned  above have been made,  subject  to  the approval  by the Union Public Service Commission".   On  the other   hand,  the  word  "selection"  indicates  that   the appointments were only pending selection of the officers  to the posts.  To state it differently, as the selection to the said  posts was impending through the usual channel  of  the Union  Public  Service Commission from all  the  sources  of recruitment,  the said officers were promoted on an  ad  hoc basis.   If that was the intention-we have no doubt that  it was so-it follows that the petitioners and others  similarly situated had no right to the posts of Assistant Controllers. If  that be so, the factual position was that there were  76 vacancies  and  that  the petitioners and  others  who  were temporarily  in charge of some of the said posts were to  be treated  as  occupying their substantive posts  of  inferior

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grade.   The  result  was that there  were  two  sources  of recruitment  to  the  76  posts  advertised,  namely,  (i)by promotion  from  non-gazetted posts in the  department,  and (ii)by.  direct recruitment.  The qualifications  for  both are   different.   For  direct  recruitment   as   Assistant Controllers the following are the qualifications: (i) degree of   a  recognised  university;  and  (ii)  about  5   years experience in responsible supervisory capacity in Government service   or  business  concerns.   The  qualification   was relaxable  at  the discretion of the  Union  Public  Service Commission;  and experience of work connected  with  imports and   exports  was  made  desirable.   For  promotion,   the qualification prescribed was that the candidate should be  a Section  Head with a minimum of three years service in  that grade.  It will, therefore, be seen that the recruitment was made from two sources with different qualifications, namely, (i)  by  promotion from the subordinate staff; and  (ii)  by direct  recruitment.  It follows that they belonged  to  two different categories. It  was  then  suggested that the ratio of  75%  for  direct recruits and 25% for promotion from departmental  candidates was discri- 36 minatory.   This point directly arose for  consideration  in Mervyn  Coutinho  v. The Collector of  Customs,  Bombay.(1). Therein,  this  Court accepted the  validity  of  rotational system where the recruitment to a cadre was from two sources and held that such a system did not violate the principle of equal   opportunity   enshrined  in  Art.   16(1)   of   the Constitution. But,  it  is  said  that  if  the  system  of  rotation  was necessary,  the Government should have applied the ratio  of 50:50 and not 75:25.  When the recruitment to certain  posts is from different sources, what ratio would be adequate  and equitable would depend upon, the circumstances of each  case and the requirements and needs of a particular post.  Unless the ratio is so unreasonable as to amount to discrimination, it  is  not  possible for this Court to strike  it  down  or suggest  a different ratio.  Nothing has been placed  before us  to  show  that the ratio of 3 : I  is  so  flagrant  and unreasonable as to compel us to interfere with the order  of the Government. The  next  argument is that the Government,  in  effect  and substance,  accepted the principle of "carry forward"  which was  struck down by this Court in T. Devadasan v. The  Union of  India.(2)  There  certain  reservations  were  made  for recruitment  to  certain  posts  for  the  members  of   the Scheduled  Caste and Scheduled Tribes; and if the  vacancies reserved  for the said Castes and Tribes were not filled  up in  a  particular year, the Government  Order  provided  for carrying forward the said vacancies to the subsequent  year, and  if in the subsequent year also the said vacancies  were not  filled  up, they would be carried forward to  the  next year and so on.  That rule was struck down by this Court  on the ground that the guarantee given under Art. 16(1) was for each individual citizen and, therefore every citizen who was seeking employment or office under the State was entitled to be  afforded an opportunity for seeking such  employment  or appointment which was intended to be filled up and that  the principle  of "carry forward" deprived him of such a  right. This  decision has no bearing on the question raised  before us.  When a similar argument was advanced in Mervyn Coutinho v.  The  Collector  of  Customs,  Bombay(1),  Wanchoo.   J., observed thus:               "Nor do we think that this system (the  system

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             of  rotation)  is  on a par  with  the  carry-               forward  rule, which was struck down  by  this               Court in T. Devadasan v. The Union of India(2)               and  on  which strong reliance  is  placed  on               behalf of the petitioners.  In the case of the               carry  forward  rule certain  quota  is  fixed               annually for a certain class of persons and it               is carried forward from year to year.  This is               very different from a case where a service (1) [1966]3 S.C.R. 600. (2) [1964] 4 S.C.R. 680. 37               is  divided into two parts and there  are  two               sources  of recruitment, one of promotion  and               the  other by direct recruitment.  In  such  a               case  the whole cadre of a particular  service               is  divided  into two parts and  there  is  no               question  of  carrying anything  forward  from               year  to year in the matter of annual  intake.               The basis on which the carry-forward rule  was               struck down by this Court does not, therefore,               apply  to  a case where the whole cadre  of  a               service   is   divided   in   certain    fixed               proportions   between  promotees  and   direct               recruits". These observations directly apply to the present case.   But it is said that there is a difference between that case  and the  present  one.  It is argued that the vacancies  in  the cadre  of Assistant Controllers that arose  between  1952-55 were  filled up subsequently and, therefore, in  effect  and substance,  those  vacancies  were carried  forward  to  the subsequent year or years.  This argument, if we may say  so, is fallacious.  The vacancies were not reserved to be filled up  in any year nor were they carried forward to  subsequent years.   Certain  vacancies arose and  for  certain  reasons they,  were  not  permanently filled up,  but  some  ad  hoc appointments  were  made  in regard thereto  and  they  were subsequently   filled  up  by  permanent  appointees.    We, therefore, reject this contention. In this view the other points raised by learned counsel  for the petitioners need not be considered. As  regards costs, we do not think that this is a  fit  case for awarding costs to the State, for, as no rules under Art. 309   of  the  Constitution  were  made  in  time   and   as appointments were made on an ad hoc basis without consulting the Union Public Service Commission, allot of confusion  was introduced  in  the administrative set up, with  the  result that persons who acted as Assistant Controllers for a number of  years had to be superseded by direct recruits.   Whether another  formula could have been more equitably  evolved  is not for us to say, but the fact remains that the petitioners cannot  be  blamed  for coming to court  for  getting  their rights   settled  one  way  or  other.   The  petition   is, therefore, dismissed without costs. V.P.S.                                              Petition dismissed, 38