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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