http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: ANAND PARKASH SAKSENA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 14/12/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) SHELAT, J.M. MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  754            1968 SCR  (2) 311  CITATOR INFO :  R          1976 SC2345  (16)  RF         1980 SC1275  (24)

ACT: Indian  Administrative  Service-I.A.S. Extension  to  States Scheme-Officer in the junior scale of pay if has a right  to a  post in the senior scale-All India  Services  (Discipline and  Appeal) Rules 1955, r. 3-Filling of posts by  non-Cadre officers,  if  penalty-I.A.S. Recruitment  Rules,  1954,  r. 4(3),   if  bad  for  excessive   delegation-Regulation   of Seniority  Rules,  1954, r. 3(3)(b),  Seniority  of  Special Recruits Regulation, 1960, regulation 3(3), if violative  of Constitution of India, Arts. 14, 16.

HEADNOTE: The Madhya Bharat Cadre of the Indian Administrative Service was constituted in 1951 under the I.A.S. Extension to States Scheme.   The Cadre included all senior posts.  A number  of junior  and  training  posts were provided  to  be  held  by officers  recruited  to the cadre before they  acquired  the experience  and  seniority necessary to hold  senior  posts. The primary source for the initial constitution of the Cadre was the existing incumbents of the State Service.  They were selected  and included in three Lists.  Officers in List  I, were  immediately appointed to the service Officers in  List 11 were to be taken in the service only when found  suitable and  those  in  List  III were not to  be  absorbed  in  the service.   List  11 and III officers were  counted  against’ senior posts but these posts held by them were excluded from the  Cadre for the period they were held by those  officers. The  Cadre  was  to be maintained on a  permanent  basis  by direct recruitment by competitive examination and  promotion of State Civil Service Officers and twenty-five per cent  of the  senior posts were reserved for the latter.   The  Cadre continued  Co be governed by the Scheme until 1954 when  the I.A.S. Recruitment, Seniority Cadre and Pay Rules were made. Rule  9(1)  of the Cadre Rules provides for  appointment  of non-cadre  officers  to cadre posts, i.e. senior  posts,  if suitable cadre officers are not available and the proviso to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

the  rule preserved the arrangement under the  Extension  to States  Scheme for the holding of cadre posts  by  non-Cadre officers.  Under Rule 9(1) of the Recruitment Rules  twenty- five  per cent of the senior posts are reserved for  persons recruited  under  rule 8, i.e. by promotion  of  substantive members of the State Civil Service and by selection of those who hold gazetted posts in connection, with the affairs of a State.   The  Special Recruitment  Regulations,  1956,  made under  rule  4  of the Recruitment of  Rules,  provides  for recruitment  by  promotion to the Service  by  selection  of persons  serving in connection with the affairs of a  State. In  the  matter of seniority, the  Regulation  of  seniority Rules, gives a promote from State Civil Service the year  of allotment  of  the junior-most  direct  recruit  officiating continuously  in  a  senior post earlier than  the  date  of commencement  of  such  officiation by  the  promotee.   The seniority of Special Recruits Regulation,, 1960, adopts  the formula applicable to promotees for fixing the seniority  of those  recruited by promotion under the Special  Recruitment Regulations. The   petitioner,   a   direct   recruit   by    competitive examination,, was appointed to a junior post in the  Service on April 2, 1952.  He was originally allotted to the  Madhya Bharat  Cadre, which along with the former  Vindhya  Pradesh and Madhya Pradesh Cadres merged in the present L2 Sup CI/68-9 612 Madhya  Pradesh Cadre constituted on November 1,  1956.   He was  not found suitable to hold a senior post till  November 17,  1956, when. he was appointed to officiate in  a  senior post.  At the time his appointment to the service there were no vacancies in the senior posts.  Vacancies arose before he was  appointed  to officiate in the senior post  and  after. Some  of  the respondents who were officers  of  the  Madhya Bharat  and the former Madhya Pradesh State  Civil  Services were  promoted  before  the integration  of  the  cadres  on November  1, 1956 to fill the vacancies against the  twenty- five  per  cent quota and several  non-Cadre  officers  were appointed under r. 9(1) of the Cadre Rules.  Vacancies  were also  filled in by promotion under the  Special  Recruitment Regulations.  In the gradation List published on January  1, 1966  all  the  respondents  were shown  as  senior  to  the petitioner. In  a writ petition, under Art. 32 the petitioner  contended that  (i) he had a right to hold a post in the senior  scale of  pay from April 2. 1952 to November 17, 1956,  under  the Rules  and in tile light of this Court’s decision in  P.  C. Wadhwa v. Union of India and the filling of the vacancies by non-Cadre officers amounted to withholding of promotion  and penalty within the meaning of r. 3 of the All India  Service (Discipline  and Appeal) Rules. 1955; (ii) under  the  rules seventy-five  per cent of the total number of  senior  posts was  exclusively  reserved for direct recruits and  that  in computing  the twenty-five per cent quota officers in  Lists 11 and III and special recruits had to be included; (iii) r. 4(3)  of the Recruitment Rules which authorised the  Central Government  to make regulation for special  recruitment  was bad on the ground of excessive deletation; (iv) r. 3 (3) (b) of  the  Regulation of Seniority Rules,  1954,  made  unjust discrimination  between a promotee and a direct  recruit  in the  matter  of seniority by arbitrarily allotting  a  lower year of allotment to a promotee and therefore violated Arts. 14  and 16 of the Constitution; and (v) regulation  3(3)  of the Seniority of Special Recruits, Regulation 1960, offended Arts.  14  and  16  inasmuch  as  the  relevant  rules   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

regulations  set  up  an arbitrary  double  standard  for  a special recruit enlisted by promotion. HELD : Dismissing the petition. (i)  The  filling of a vacancy by a non-Cadre officer  under r.  9 of the Cadre Rules does not infringe any right of  the Cadre officer nor does it amount to withholding of Promotion or a Penalty within the meaning of r. 3 of All India Service (Discipline and Appeal) Rules, 1955.  A Cadre Officer in the junior scale of pay cannot claim ’a right to fill a  vacancy in  the  senior scale if he is not ’suitable  and  no  Cadre officer junior to him is Promoted to fill the vacancy.   The decision  in  Wadhwa’s case is distinguishable.   That  case only  decided that the reversion of a Cadre,  office,  while Cadre  officers junior to him continued in the senior  scale amounted  not  only  to  reduction  in  rank  but  also   to withholding  of promotion.  Rule 6 A(2) of  the  Recruitment Rules introduced in 1965 after the decision in Wadhwa’s case now  makes explicit what was always implicit in r.  9(i)  of the Cadre Rules. In  the  instant  case  no  Cadre  Officer  junior  to   the Petitioner  was  promoted  to the  Cadre  post  be-fore  his Promotion  on November 17, 1956 and after Promotion  he  was neither  reverted nor reduced in rank nor was his  promotion withheld. [619 F-H: 620 E-F] P.   C.  Wadhwa  v.  Union of India, [1964]  4  S.C.R.  598. distinguished. 613 (ii) Seventy-five per cent of the senior posts may be filled by  recruits  other  than those recruited  by  promotion  or selection  under  r. 8 of the  Recruitment  Rules.   Special recruits  are  appointed against the seventy-five  per  cent quota and rule 9(3)(b)(iv) added in 1965 makes explicit what was  always  implicit in r. 9(1) of the  Recruitment  Rules. Under  the Extension. to State Scheme officers in  Lists  II and  III were not counted against the twenty-five  per  cent quota.   Rule 9(3)(b)(iii) of the Recruitment Rules make  it clear  that in computing the twenty-five per cent quota  the appointments  of officers in List 11 will be excluded.  [620 G, H] (iii)     Assuming that the doctrine of excessive delegation of  Legislative  power applies to rules, r.  4(3)  does  not suffer from the vice of excessive delegation. in making .’he regulations  under the rule the Central Government is to  be guided  by the exigencies of the service and the  advice  of the  State  Governments  ’and  (,he  Union  Public   Service Commission.   There authorities are the best judges  of  the appropriate regulations to be made in the matter [622 A-C] (iv) Rule  3(3)(b) of the Regulation of Seniority  Rules  is not  violative of Arts. 14 or 16 of the  Constitution.   The object of the rule is to fix the seniority of the  promotees who obtained promotion after long service in the State Civil Service, in relation to direct recruits.  The ’rule attempts to strike a just balance between the- conflicting claims  of the promotees and direct recruits. [622 F-G] (v)  Regulation  3(3)  of  the  Special  Recruits  Seniority Regulations  is not violative of Arts. 14 and  16.   Special recruits  ’are neither direct recruits nor promotees.   They form a distinct class.  The regulation, properly adopts  the formula applicable to promotees for fixing the seniority  of special recruits enlisted by promotion so that in the matter of  seniority  all officers recruited from the  State  Civil Services ’are placed on the same footing. [623 A-C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967. Petition  under Article 32 of the Constitution of India  for the enforcement of the Fundamental Rights. N.   C. Chatterjee, A. N. Sinha, S. Balakrishnan and K.  B.. Rohtage, for the petitioner. Niren De, Solicitor-General, V. A. Seyid Muhammad and R.   H. Dhebar for R. N. Sachthey, for respondent No. 1. B. Sen and I. N. Shroff, for respondents Nos. 2 to 18,, The Judgment of the Court was delivered by Bachawat, J. The petitioner is a member of the Indian  Admi- nistrative  Service having been appointed to a  junior  post therein  on  April  2, 1952 on the basis  of  a  competitive examination  held by the Union Public Service Commission  in the  year  1951.  He completed his probation on  October  2, 1953.  He was originally allotted to the Madhya Bharat Cadre of  the Indian Administrative Service which along  with  the former Vindhya Pradesh and Madhya Pradesh cadres, merged  in the  present Madhya Pradesh cadre of  Indian  Administrative Service constituted on November 1, 1956. 614 He  was appointed to officiate in a senior post on  November 17,  1956.   In the gradation list published on  January  1, 1966,  hi,; number is 70.  In this writ petition under  Art. 32  of the Constitution he claims that (a) he had the  right to hold a post in the senior scale of pay from April 2, 1952 up to November 17, 1956 under the relevant rules read in the light  of the decision in P. C Wadhwa v. Union  of  India(1) and  that  (b)  he is entitled to  a  higher  place  in  the gradation list.  He asks for the issue of appropriate  writs declaring his rights and giving him consequential reliefs. The  Madhya  Bharat  cadre  of  the  Indian   Administrative Service:  was constituted on June 1, 1951 under  the  Indian Administrative  Service  Extension to  States  Scheme.   The cadre  included  all senior posts.  A number of  junior  and training  posts  were  provided,  to  be  held  by  officers recruited  to the cadre before the) acquired the  experience and  seniority  necessary  for holding  senior  posts.   The initial  constitution  of the cadre was made  from  (1)  the existing   incumbents  and  (2)  emergency  recruits.    The existing  incumbents  were considered to be  the  first  and primary  source  of recruitment.  They were  selected  by  a Special  Recruitment  Board  and  divided  in  three  lists. Officers  in  List  I  were  considered  fit  for  immediate appointment  to  the Service.  Officers in List II  were  to continue  to hold their present posts, their work was to  be watched  for 5 years and were to be absorbed in the  Service as and when they were found fit.  Officers in List III  were to  hold  their present posts or posts  of  equivalent  rank until  they retired but they were not to be absorbed in  the Service.   The  posts held by officers in Lists 11  and  III were  excluded  from the cadre for the period  during  which they  were  held  by those officers.  The cadre  was  to  be maintained on a permanent basis by (a) direct recruitment on the result of the competitive examination and (b)  promotion from amongst officers of the State Civil Service.  As in the case  of  the Provincial cadres, 25 per cent of  the  senior posts were earmarked for promotion of officers of the  State Civil Service. On  June 1, 195 1, the number of senior posts in the  Madhya Bharat   cadre  was  25.   On  selection  by   the   Special Recruitment Board, 6 officers were placed in List I and were appointed  to  the  Service  from  January  1,  1951.   Four officers were placed in List II and 11 officers were  placed in List III and they continued to hold their posts under the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

Extension  to States Scheme.. The remaining 4  senior  posts were held by 4 emergency recruits.  On April 2, 1952,  there was  thus  no available vacancy for the  petitioner  in  the senior posts.  As a matter of fact, 2 direct recruits senior to the petitioner were in the junior scale of pay. (1)  [1964] 4 S.C.R. 598.                             615 In September 1954, the Central Government framed the  I.A.S. Cadre  Rules, 1954, I.A.S. Recruitment Rules,  1954,  I.A.S. Pay  Rules, 1954 and I.A.S. Regulation of  Seniority  Rules, 1954  in  exercise of its powers under s. 3(1)  of  the  All India  Services  Act, 1951.  These rules were  amended  from time  to time.  Under r. 2 (a) of the Cadre Rules,  a  cadre officer means a member of the Indian Administrative Service. Under r. 2(b), a cadre post means a senior cadre post  under the  State  Government.   Under r. 3,  an  I.A.S.  cadre  is constituted for each State or group of States.  Under r.  4, the strength and composition of each cadre is determined  by regulations made by the Central Government.  Rule 8 provides that "Save as otherwise provided in these rules, every cadre post  shall  ’be  filled  by a  cadre  officer."  Rule  9(1) provides  that "A cadre post in a State may be filled  by  a person who is not a cadre officer if the State Government is satisfied  (a)  that the vacancy is not likely to  last  for more  than  three months; or (b) that there is  no  suitable cadre  officer  available  for filling the  vacancy."  If  a person  other than a cadre officer is appointed to  a  cadre post for a period exceeding three months, the fact shall  be reported  to the Central Government who may, on  receipt  of the  report,  direct the State Government to  terminate  his appointment  and if he is likely to fill a cadre post for  a period  exceeding  six months, the Central  Government  must seek  the advice of the Union Public Service Commission  and in the light of its advice, give suitable directions to  the State  Government.   It  was provided that r.  9  would  not affect  the  existing  arrangements  made  by  the   Central Government  in  connection with the Governments  of  Part  B States  and the State of Vindhya Pradesh at the time of  the initial constitution of the cadre for certain cadre posts to be filled by non-cadre officers. Rule 3 of the I.A.S. Recruitment Rules, 1954 gives the cons- titution  of the service.  Rule 4 specifies the  methods  of recruitment.   Sub-rule  (1) of r. 4, as  amended,  provides that "Recruitment to the Service, after the commencement  of these rules, shall be by the following methods, namely:  (a) by  a competitive examination; (aa) by selection of  persons from  among  released Emergency  Commissioned  Officers  and Short  Service  Commissioned Officers, commissioned  in  the Armed Forces of the Union after the 1st November, 1962;  (b) by  promotion  of  substantive  members  of  a  State  Civil Service;  (c)  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 (3)  of  r.  4 provides  that "Notwithstanding anything contained  in  sub- rule  (1), if in the opinion of the Central  Government  the exigencies of the service so require, the Central Government may,  after consultation with the State Governments and  the Commission, adopt 616 such methods of recruitment to the Service other than  those specified  in  the said sub-rules as it may  by  regulations made  in  this behalf prescribe." Rule 6  provides  that  no appointment  to  the  Service shall  be  made  except  after recruitment  by one of the methods specified by r.  4  Rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

6A(2)  introduced with effect from September 24, 1966  after the  decision  in P. C. Wadhwa’s case(1)  provides  that  "A direct  recruit  in the junior time-scale of  pay  shall  be appointed  to  a post in the senior time-scale  of  pay  if, having  regard  to his length of  service,  experience,  and performance  in  the  junior time-scale of  pay,  the  State Government is satisfied that he is suitable for  appointment to  a  post in the senior time-scale of pay." Rules  7.  7A, 8(1)  and  8(2) deal with the four  methods  of  recruitment specified  in  r. 4 and empowers the Central  Government  to make   appropriate  regulations.   Rule  8(1)   deals   with recruitment by promotion of substantive members of the State Civil   Service.   Rule  8(2)  deals  with  recruitment   by selection in special cases from amongst persons who hold, in a  substantive capacity, gazetted posts in  connection  with the  affairs  of the State and who are not  members  of  the State Civil Service.  Rule 9(1), as amended, provides  inter alia  that "the number of persons recruited under rule 8  in any State or group of States shall not, at any time,  exceed 25  per cent of the number of" senior posts in  relation  to that  State or group of States.  Rule 9(3)(b) provides  that "for the purpose of determining the percentage specified  in sub-rule (1)(b) the following category of officers shall ’be excluded  namely  :- (i) officers of a State  Civil  Service appointed  to  the Service under the  Emergency  Recruitment Scheme otherwise than against the 25 per -cent quota;  (iii) officers  of a State Civil Service appointed to the  Service from  List  II, prepared by the  Special  Recruitment  Board under  the  Indian  Administrative  Service  (Extension   to States)  Schemes;  (iv) officers of a  State  Civil  Service appointed  to  the Service under the  Indian  Administrative Service (Special Recruitment) Regulations, 1956." Rule 9 (3) (b) (iv) was added oil October 15, 1965. The I.A.S. (Special Recruitment) Regulations, 1956 were made under  r. 4(3) of the Recruitment Rules.  Regulation 3  pro- vides  that special recruitment will be made (a)  by  direct recruitment by selection and (b) by promotion to the Service by  selection  of  persons serving in  connection  with  the affairs  of  the State.  Regulations 8 and 9 adopt  for  the purposes   of  special  recruitment  the   regulations   for appointment   by  competitive  examination,  promotion   and selection  made  under  rules  7,  8(1)  and  8(2)  of   the Recruitment Rules with appropriate modifications.  Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of pay  admissible to the members of the Service.  The  _junior scale is (1)[1964] 4 S.C.R. 598. 617 scale is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800 (22 years).  The selection grade is Rs. 1800-100-2000.  Rule 4(1) provides that the initial pay of a direct recruit shall be fixed at the minimum of the junior time-scale.  Rule 4(2) provides  that  the pay of a member of the  Service  in  the junior  time-scale  shall on appointment to a  post  on  the senior  time-scale, be fixed at the corresponding  stage  of the senior time-scale as shown in Sch. 1. The two scales  of pay  are  given in Sch. 1 in parallel  columns  against  the years of service.  The increments, withholding of increments and grant of advance increments are regulated by rules 5,  6 and 7. Rule  3(1) of I.A.S. (Regulation of Seniority)  Rules,  1954 provides  that  every officer shall be assigned  a  year  of allotment.  Rule 3 (3) (a) provides inter alia that the year of  allotment of an officer appointed to the  Service  after the commencement of these rules, shall be-where the  officer

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

is appointed to the Service on the results of a  competitive examination,  the  year  following the year  in  which  such examination was held." Rule 3 (3) (b) provides that the year of  allotment of an officer shall be "where the  officer  is appointed  to  the Service by promotion in  accordance  with subrule (1) of rule 8 of the Recruitment Rules, the year  of allotment of the junior-most among the officers recruited to the  Service  in accordance with rule 7 of those  rules  who officiated continuously in a senior post from a date earlier than  the  date of commencement of such officiation  by  the former."  The  proviso to r. 3 (3) (b) lays down  that  "the year of allotment of an officer appointed to the Service  in accordance  with sub-rule (1) of rule 8 of  the  Recruitment Rules who started officiating continuously in a senior  post from  a  date  earlier than ’the date on which  any  of  the officer  recruited to the Service in accordance with rule  7 of those Rules so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government  concerned."  Rule 5A authorises  the  making  of regulations  for fixing the seniority of  special  recruits. Rule  6 provides for preparation of a gradation list of  all officers borne on the cadre arranged in order of seniority. Regulation  3 of the I.A.S. (Seniority of Special  Recruits) Regulation,  1960  made  under r. 5A of  the  Regulation  of Seniority  Rules  fixes the seniority of  special  recruits. Rule  3(3) provides that "In the case of officers  recruited by  promotion from the State Civil Service under clause  (b) of  regulation  3  read  with regulation  9  of  the  Indian Administrative  Service (Special  Recruitment)  Regulations, 1956,  the  year of allotment shall be fixed  in  accordance with the provisions of clause (b) of sub-rule (3) of rule  3 of   the  Indian  Administrative  Service   (Regulation   of Seniority) Rules, 1954." 618 The relevant provisions of the parallel Cadre,  Recruitment, Pay  and Regulation of Seniority Rules of the Indian  Police Service  were considered by this Court in P. C.   Wadhwa  v. Union of India(1).  There, the appellant was a member of the Indian  Police Service.  He joined the Service in  1952  and was confirmed in 1953.  In 1958 he was promoted to officiate in  the  senior time-scale as Additional  Superintendent  of Police at Ferozepore in place of the permanent incumbent who was  on leave.  In July 1964, he was served with  a  charge- sheet and he submitted a reply.  Before the enquiry  started he  was  reverted  to  his  substantive  rank  of  Assistant Superintendent of Police.  The reversion was not due to  the return  of the permanent incumbent from leave or  deputation or for any administrative reason.  Other officers junior  to him continued to officiate in the senior scale while he  was reverted.   His personal file revealed a note by the  Senior Superintendent  of Police to the effect that a  regular  en- quiry  into  his conduct would take a long time and  it  was advisable  to revert him.  He was not given any  opportunity of  showing cause against the action taken against him.   He filed a writ petition in the High Court asking for the issue of  a writ quashing the order of reversion.  The High  Court dismissed the petition.  On appeal, this Court set aside the order  of  the High Court and allowed  the  petition.   This Court  held that the reversion was made in contravention  of Art.  311 of the Constitution.  The majority held  that  the reversion was by way of punishment and amounted to reduction in rank and withholding of promotion on grounds which may be summarised  thus  : There is only one cadre  in  the  Indian Police  Service.  A person in the junior time-scale  of  the Service is as much a cadre officer as one holding a post  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

the  senior time-scale or a post above the time-scale.   The transition  of  a member of the Service from  one  scale  to another does not depend upon selection or the  consideration of  the  comparative merits of the officers  in  the  junior scale  inter  se  but  only  upon  a  consideration  of  his seniority.  Mudholkar, J. said that "the whole scheme of the rules  indicates that a person borne on the junior scale  of pay  has a right to hold a post on the senior scale  of  pay depending upon the availability of a post and his  seniority in  the  junior  scale of pay." The learned  Judge  added  : "Despite  the  fact  that he holds a  certain  rank  in  the gradation list persons who also belong to the Indian  Police Service and who were recruited to it subsequent to him  have continued  to  hold  or have been appointed  to  hold  posts carrying  salary  in the senior scale.   This  would  itself indicate  that  the action taken against him was by  way  of penalty or punishment.  For, he has not only been reduced in rank  but  his promotion to the senior scale has  also  been withheld." (1)  [1964] 4 S.C.R. 598.                             619 In this background, the petitioner says that he was deprived of  his right to hold a senior post during the  period  from April  2,  1952  up to November 17,  1956.   We  have  found already that on April 2, 1952 there was no available vacancy in  the  senior post to which he should be  appointed.   The Madhya  Bharat  Cadre  continued  to  be  governed  by   the Extension  to  States Scheme until September 1954  when  the Cadre,  Recruitment, Pay and Regulation of  Seniority  Rules were made.  The proviso to r. 9 of the Cadre Rules preserved the  existing  arrangements under the  I.A.S.  Extension  to States Scheme for the holding of certain cadre posts by non- cadre,  officers.   On June 24, 1955, the  strength  of  the Madhya  Bharat  cadre  was  revised  and  increased  to  46. Respondents Nos. 14, 15 and 16 belonged to the Madhya Bharat State Service.  Respondent No. 14 was appointed on June  24, 1955 and respondents Nos. 15 and 16 were appointed on  April 25,  1956  to senior posts against vacancies in the  25  per cent  quota.  Several non-cadre officers were  appointed  to fill  vacancies in the senior posts under r. 9 of the  Cadre Rules.   The  petitioner was not found suitable  to  fill  a vacancy in a senior post until November 17, 1956. The  petitioner contends that (1) he had the absolute  right to  be  appointed to a vacancy in the senior  posts  on  and after  April  2, 1952, (2) the filling of the  vacancies  by non-cadre  officers on the ground that he was  not  suitable was an infringement of his right and amounted to withholding of promotion and a penalty within the meaning of r. 3 of the All India Services (Discipline and Appeal) Rules, 1955,  (3) 75 per cent of the total number of senior posts was reserved exclusively for direct recruits and (4) in computing the  25 per  cent  quota  under r. 9(1)  of  the  Recruitment  Rules officers in Lists 11 and III and special recruits should  be included.  These contentions must be rejected. Vis  a  vis  another cadre officer junior to  him,  a  cadre officer  in  the  junior  scale of  pay  has  the  right  of promotion  to  a post in the senior scale on the  ground  of seniority.   This  right is infringed if  the  junior  cadre officer  is promoted to fill a vacancy in the senior  scale, while  he  continues to hold a post in the junior  scale  of pay.  But he cannot claim the right to fill the, vacancy  if he  is  not suitable and no cadre officer junior to  him  is promoted  to  fill the vacancy.  An officer  in  the  junior scale  of  pay has no right to a senior post as soon  as  he joins  the  Service.  He may be appointed to a  senior  post

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

only  when he is found suitable having regard to his  length of  service, experience and performance in the junior  scale of  pay.   Rule  6A(2) of the Recruitment  Rules  now  makes explicit  what  was  always implicit in r. 9  of  the  Cadre Rules. Under r. 9(1) of the Cadre Rules, a senior cadre post may be filled  by  a  non-cadre officer if  there  is  no  suitable officer 620 available for filling the vacancy.  Similar provision is  to be  found  in  paragraph  3  of  the  memorandum   regarding constitution  of  the  Indian  Administrative  Service   and paragraph 5 of the Indian Civil Administrative Cadre  Rules, 1950.   The  appointment of a non-cadre officer to  a  cadre post  under  r.  9(1)  of the Cadre  Rules  is  a  temporary arrangement  which  may be terminated at any time  when  the Government  finds a cadre officer suitable for  filling  the vacancy.  Until the cadre officer is found suitable, a  non- cadre  officer  may be appointed to fill the vacancy  in  a" post  in the senior scale of pay.  The cadre officer has  no right  to  fill  the vacancy if he  is  not  suitable.   The filling  of the vacancy by a non-cadre ,officer under  r.  9 does  not infringe any right of the cadre officer nor  does- it amount to a withholding of promotion or a penalty  within the  meaning of r. 3 of the All India  Services  (Discipline and Appeal) Rules, 1955. The  decision in P. C. Wadhwa’s case(1) is  distinguishable. There,  a  cadre  officer in the junior  scale  of  pay  was promoted  to officiate in a post in the senior scale of  pay and  was thereafter reverted to his substantive  post  while other cadre officers junior to him continued to officiate in posts in the senior scale of pay.  As against cadre officers junior  to  him,,he had the right to hold :the post  in  the senior  scale  of pay.  The reversion while  cadre  officers junior to him continued in the senior scale amounted to  not only  reduction in rank but also withholding  of  promotion. This  is all that P. C. Wadhwa’s case(1) decided.  The  fact in the present case are entirely different.  The  petitioner was  not suitable to fill the vacancies in the senior  posts and non-cadre officers were appointed to fill the  vacancies under  r. 9 of the Cadre Rules.  No cadre officer junior  to the  petitioner  was promoted to the cadre post  before  his promotion  on November 17, 1956.  Nor was he reverted  after his  promotion,  while officers junior to him  continued  to hold  senior posts.  The petitioner was not reduced in  rank nor  was his promotion withheld.  He had no right to fill  a vacancy in the senior posts or to draw salary in the  senior scale between April 2, 1952 and November 17, 1956. There is no merit in the contention that 75 per cent of  the total  number  of senior posts is reserved  exclusively  for direct  recruits.  Under r. 9(1) of the  Recruitment  Rules, the  number of persons recruited to senior posts under r.  8 of the Recruitment Rules by promotion or by selection cannot exceed 25 per cent of the total number of senior posts.  The remaining  75 per cent of the senior posts may be filled  by other  recruits.   Special  recruits  under  r.  4  of   the Recruitment  Rules  are appointed against the  75  per  cent quota.   Their appointments are not counted against  the  25 per cent quota reserved for persons recruitment under r.8. (1)  [1964] 4 S.C.R. 598. 621 Rule  9(3)(b)(iv)  now expressly provides what  was  already implicit in r. 9(1). Paragraph  4(iv) of the I.A.S. !Extension to  States  Scheme provided  that the posts held by officers included in  Lists

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

11  and III would be excluded from the cadre for the  period they  were  held by those officers and would revert  to  the cadre  as  and  when they ceased to  be  required  for  that purpose.   The posts held by the officers in List  III  were excluded  from  the cadre until they retired  and  were  not counted  against the 25 per cent quota.  The posts  held  by the  officers in List 11 pending absorption in  the  service were  excluded  from the cadre.  They were absorbed  in  the service  as  and when they were found fit.  Rule 9  (3)  (b) (iii)  provides that in computing the 25 per cent quota  the appointments of officers from List 11 will be excluded. There  were  vacancies in the 25 per cent quota  which  were filled  up  by promotion of respondents Nos. 14, 15  and  16 from  the Madhya Bharat State Service.  Respondents Nos.  4, 6, 11, 12, 13, 17 and 18 were from the former Madhya Pradesh State  Service.   Some of them were promoted to  the  Indian Administrative Service against the 25 per cent quota in  the State  cadres  before  the  integration  of  the  cadres  on November  1,  1956.   No  appointments  were  made   between November  1, 1956 and November 17, 1956 when the  petitioner was   appointed  to  officiate  in  a  senior   post   Other respondents were appointed after November 17, 1956.  None of the appointments is open to any challenge. It is  surprising that  the  petitioner seeks to  challenge  the  appointments after  a long lapse of time.  He has not given any  adequate explanation as to the delay in filing the writ petition. The petitioner next challenges the seniority assigned to the respondents.  In the gradation list, all the respondents are shown  as senior to him Respondents Nos. 10, 11, 12  and  13 are  special  recruits and their seniority  has  been  fixed under  Regulation 3(3) of the I.A.S. (Seniority  of  Special Recruits)  Regulation, 1960 read with r. 3 ( 3 ) (b) of  the Regulation   of  Seniority  Rules,  1  9  5  4.  The   other respondents are promotees and their seniority has been fixed under r. 3 (3) (b) of the Regulation of Seniority Rules  and the proviso thereto. The  petitioner  challenges  the vires of  r.  4(3)  of  the Recruitment Rules under which the Central Government  framed the Special Recruitment Regulations.  The Recruitment  Rules were  made under s. 3 of the All India Services  Act,  1951. In D. S. Garewal v. The State of Punjab and Another(1), this Court held that s. 3 was not bad on the ground of  excessive delegation  of  legislative power.  The  petitioner  submits that r. 4(3) of the (1)  [1959] Sup, 1 S.C.R. 72 622 Recruitment  Rules  is  bad  on  the  ground  of   excessive delegation,   of  legislative  power.   Assuming  that   the doctrine  of  excessive  delegation  of  legislative   power applies to rules, we think that r. 4(3) does not suffer from the  vice of excessive delegation.  Rule  4(3)  .authorities the  Central  Government  to make  regulations  for  special recruitment.    In  making  the  regulations,  the   Central Government is to be guided by the exigencies of the  service and the advice of the State Governments and the Union Public Service  Commission.  These authorities are the best  judges of the appropriate regulations to be made in the matter.  In the light of their expert knowledge they can adapt for  this purpose  the  existing  regulations  for  other  methods  of recruitment  with  suitable  modifications  or  make   other appropriate  regulations having regard to the exigencies  of the service.  As a matter, of fact, the Special  Recruitment Regulations  1960 framed under r. 4(3) have adapted for  the purposes   of  special  recriutment  the   regulations   for recruitment   by  competitive  examination,  promotion   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

selection with appropriate modifications, The  petitioner  next  contends that r. 3  (3)  (b)  of  the Regulation  of Seniority Rules makes  unjust  discrimination between  a  promotee and a direct recruit in the  matter  of seniority by arbitrarily assigning a lower year of allotment to  a  promotee and is violative of Arts. 14 and 16  of  the constitution.   This  contention is devoid  of  merit.   The seniority of direct recruits inter se and promotees inter se is  fixed by r. 4. The object of r. 3 (3) (b) is to fix  the seniority of the promotees in relation to direct  -recruits. The  promotees  obtain promotion after long service  in  the State  Civil  Services.   From  the point  of  view  of  the promotee,  his seniority should be counted from the date  of his joining the State Civil Service.  From the point of view of  the direct recruit the seniority of the promotee  should be  counted from the date of his appointment to  the  Indian Administrative Service.  Rule, 3 (3) (b) attempts to  strike a just balance between the conflicting claims.  It gives the promotee  the  year of allotment of the  junior-most  direct recruit  officiating continuously in a senior  post  earlier than  the  date of commencement of such officiation  by  the promotee.  If no direct recruit was officiating continuously in  a senior post on an earlier date. the seniority  of  the promotee is determined ad hoc.  In our opinion, the rule  is not  arbitrary  or discriminatory and is  not  violative  of Arts. 14 and 16 of the Constitution. The  petitioner next challenges the validity of  ]Regulation 3(3) of the Special Recruitment Seniority Regulations,  1960 on  the  ground  that  it offends Arts. 14  and  16  of  the Constitution.   According  to the petitioner,  the  relevant rules  and  regulations  have set  up  an  arbitrary  double standard for a special recruit enlisted by promotion because Regulation 3(3) of the Special Recruit- 623 ment  Seniority  Regulations read with r. 3 (3) (b)  of  the Regulation  of Seniority Rules treats him as a promotee  for the  purpose  of seniority while r. 9 (3) (b)  (iv)  of  the Recruitment  Rules  treats him as a direct recruit  for  the purpose  of  recruitment.   There is no  substance  in  this contention.   Special recruits form a distinct class.   They are  neither direct recruits nor promotees.  Rule 9  of  the Recruitment  Rules does not treat them as  direct  recruits. Regulation   3  (3)  of  the  Special   Recruits   Seniority Regulations  properly  adopts  the  formula  applicable   to promotees  for  fixing  the seniority  of  special  recruits enlisted  by promotion. so that in the matter  of  seniority all  officers  recruited from the State  Civil  Service  are placed on the same footing.  The regulation is not arbitrary nor violative of Arts. 14 and 16 of the Constitution. The  seniority  of the respondents was fixed  in  accordance with  Regulation 3 (3) of the Special Recruitment  Seniority Regulations,  r.  3 (3) (b) of the Regulation  of  Seniority Rules  and  the  proviso thereto, and is  not  open  to  any challenge. The  writ petition is dismissed.  There will be no order  as to costs. Y.P.                                                Petition dismissed. 624