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PETITIONER: BACHAN SINGH & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT17/03/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) GROVER, A.N. PALEKAR, D.G. BEG, M. HAMEEDULLAH

CITATION:  1973 AIR  441            1972 SCR  (3) 898  1972 SCC  (3) 489  CITATOR INFO :  D          1977 SC2051  (46)  RF         1980 SC1561  (38)  R          1983 SC 769  (3,4,17,18,19,21,23,24,26,29,3  F          1985 SC1019  (26)  RF         1987 SC2359  (9)  RF         1990 SC 428  (4,10,12)

ACT: Military  Engineer Service Class I (Recruitment,  Promotion, and Seniority Rules) 1951, Rule 3--Recruitment by  interview whether  recruitment by competition within meaning  of  rule Quotas for promotion and confirmation of direct recruits and promotees--Direct   recruits  recruited  whether  could   be confirmed in permanent posts earlier than promotees who  had been promoted to Class I before their recruitment.

HEADNOTE: The two appellants were promoted in the years 1958 and  1959 respectively to the Military Engineer Service Class 1.  Some of  the  respondents  were appointed to  the  said  class  I Service   after  they  had  appeared  at   the   competitive examination   while  the  rest  were  appointed  by   direct recruitment  after  having  been interviewed  by  the  Union Public   Service  Commission.   All  the  respondents   were appointed  to the service in the years 1962, 1963 and  1964. The  respondents  were confirmed in their posts  before  the appellants.  The appellants filed writ petitions in the High Court which were dismissed.  In appeal before this Court the appellants  contended  (i)  that the  respondents  who  were directly appointed to class I service by inter-view were not within  the  purview of recruitment to Class  I  service  by competitive examination under the Military Engineer  Service Class  I (Recruitment Promotion and Seniority) ’Rules;  (ii) that  the respondents were recruited to Class I  Service  by inter-view  and competitive examination after the  appellant had been promoted to Class I service and were therefore  not to be confirmed in permanent posts before the appellants. HELD : (i) The appointments to Class I Service by  interview were  made by the Government in consultation with the  Union

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Public  Service Commission.  The selection was made  by  the Union   Public  Service  Commission.   The  appointment   by competitive  examination proved fruitless.  The country  was in  a state of emergency.  The appointment and selection  by interview  was  the only course possible.  It could  not  be said  that  all  appointments  should  have  been  made   by promotion; that would not he in the interest of the service. The  Service  Rules were administrative in  character.   The Government  relaxed the rules.  The amendments of the  rules in 1967 recognised the reality of the situation of  appoint- ment   by  interview.   That  is  why  the  1967   amendment recognised  that 50% of "the direct recruit- by  competitive ad hoc appointments were to be reserved for graduate ceneers who  were  commissioned in the Armed Forces on  a  temporary basis  Ultimately, when the rules were amended in  1969  and the  rules  became  statutory in  character,  not  only  the recruitment  by interview but also the relaxation  of  rules was  regularised.   The result is that the  respondents  who were  appointed by interview fell within the Class I  direct recruits. [901 F-902 A] (ii) The appellants should have no grievance with regard  to confirmation.   Departmental  promotees had  been  confirmed against  permanent  posts  within their quota  in  order  of seniority.    The  departmental  promotees  who   had   been confirmed up to the year 1970 had been promoted to 899 class  I Service before the appellants.  On the  other  hand direct recruits consisting of those recruited by competitive examination  as  well as by inter-view  had  been  confirmed against permanent vacancies within their quota.  As a matter of fact between the years 1959 and 1963 inclusive the  quota fixed  for departmental promotees was increased from  10  to 50%  and thereby confirmation of departmental promotees  and direct recruits was equally balanced.[905 D-F] Accordingly, the appeal must fail;

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1499 of 1971. Appeal from the judgment and order dated August 23, 1971  of the Delhi High Court in Civil Writ Petition No. 517 of 1971. M. C. Chagla and R. Gopalakrishnan, for the appellants. Jagadish  Swarup, Solicitor-General of India, G. L.  Sanghi, B.   D.  Sharma and S. P. Nayar, for respondents Nos. 1  and 2. A. K. Sen and H. K. Puri, for respondents Nos. 15, 39 to 48, 51, 103 and 123. J. D. Jain, for respondent No. 55.. The Judgment of the Court was delivered by Ray, J. This in an appeal by certificate from the  _judgment dated 23 August, 1971 of the High Court of Delhi  dismissing the writ petitions of the appellants. The two appellants were promoted in the years 1958 and  1959 respectively  to  the  Military  Engineer  Service  Class  I (hereinafter  referred  to  as the Class  I  Service).   The appellant  No. 1 _joined the Military Engineer Service as  a temporary  overseer on 1 May, 1942.  He was promoted to  the grade  of  Superintendent Grade I on 1 May,  1949.   In  the month  of April, 1957 he was selected to be promoted to  the grade  of temporary Assistant Executive Engineer in Class  I Service  and he was promoted in fact in the month of  April, 1958. Respondents  Nos.  4 to 21, 107 to 122 and 124 to  126  were appointed  to  the  said  Class I  Service  after  they  had

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appeared  at  competitive examination while  the  rest  were appointed   by   direct  recruitment   after   having   been interviewed by the Union Public Service Commission.  All the respondents  were appointed to the said Class I  Service  in the years 1962, 1963 and 1964. The appellants contended first that the respondents who were directly appointed to Class I Service by interview were  not within  the  purview of recruitment to Class  I  Service  by competitive  examination.   The  Military  Engineer  Service Class I (Recruitment, 900 Promotion  and Seniority) Rules which came into force  on  1 April,  1951 speak in rule 3 of recruitment to the  Class  I Service  (,a) by competitive examination in accordance  with Part 11 of the Rules and (b) by promotion in accordance with part  III  of  the  Rules  The  appellants  contended   that appointment  to Class I Service by interview was not one  of the  methods  recruitment contemplated in  the  Rules,  and, therefore,  the respondents who were appointed by  interview could not be said to be validly appointed in accordance with the Rules. The second contention of the appellants was that the respon- dents  were  recruited to Class I Service by  interview  and competitive   examination  after  the  appellant  had   been promoted  to  Class I Service and were therefore not  to  be confirmed in permanent posts before the appellants. Class I Rules mention recruitment by competitive examination and by promotion.  In 1961 on the results of the competitive examination  no candidates were avail-able for allotment  to Class I Service against temporary posts.  In 1962 there  was a  state of emergency.  Engineers were immediately  required to fill the temporary posts in Class I Service.  To meet the emergency  the  Union Government in  consultation  with  the Union   Public   Service  Commission  decided   to   recruit candidates  by  advertisement  and selection  by  the  Union Public  Service Commission.  The Government with the aid  of selection   and  interview  by  the  Union  Public   Service Commission  directly recruited some respondents to  Class  I Service  in the years 1962, 1963 and 1964.   The  candidates were selected after viva-voce examination. It,  therefore,  follows that the method of  recruitment  by interview  was adopted to meet the emergency specially  when the  mode of appointment by competitive  exammation  failed. The  candidates who were selected were put through a  period of probation of 2 years.  Only on a satisfactory  completion of  probation  the candidates were allowed  to  continue  in service.  On completion of 3 years continued service in  the grade  and after qualifying the necessary departmental  test the respective officers were declared quasipermanent in  the grade in terms of Central Civil Service (Temporary  Service) Rules. During the years 1962, 1963 and 1964 particularly and  until the  year 1969 the Class I Service Rules were not  statutory in  character.  The Union Government relaxed the Rules  both in  regard to recruitment by interview and in regard to  the quotas  fixed  by  the  Rules  for  direct  recruitment  and recruitment by promotion to Class I Service. In the year 1967 rule 20 of Part II of Class I Service Rules was  amended by introduction of sub-rules (h), (i), (i)  and (k). 901 Rule  20 referred to the period of probation in the case  of recruitment by competitive examination: Sub-rule (i)  stated that  "50 per cent of the permanent vacancies to  be  filled through the competitive ad hoc recruitment conducted by  the

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Commission  after  17  May,  1963,  shall  be  reserved  for graduates engineers who are commissioned in the Armed Forces on a temporary basis during the present emergency and  later released," subject to certain conditions enumerated therein. Rule 24 was also introduced by way of amendment in the  year 1967.   Rule 24 occurs in Part IV of the Rules.  It  may  be stated here that Part 11 of the Rules deals with recruitment to Class I Service by competitive examination, Part HI  with recruitment  to  Class I Service by promotion  and  Part  IV deals  with miscellaneous Rules.  Rule 24 stated that  where the Central Government was of opinion that it was  necessary or expedient so to do, it might by order, for reasons to  be recorded  by it in writing and after consultation  with  the Union  Public  Service Commission relax all or  any  of  the rules  with respect to any class or category of  persons  or posts. In 1969 the Class I Service Rules were amended.  The  impor- tant  amendments were rule 4 and substitution of rule 21  in place of rules 21, 22 and 23.  Rule 4 dealt with the  quotas fixed  for  direct  recruitment and  promotion  to  Class  I Service.  The substituted rule 21 stated that appointment by promotion was to be made by selection and promotion was  not to  be  as a matter of right.  The real  importance  of  the amendments  of the rules in the year 1969 lies in  the  fact that  the amendments were made by the President in  exercise of  the powers conferred by the proviso to Article  309’  of the  Constitution.   As a result of the  1969  amendment  it follows  that  the entire body of rules of Class  I  Service became statutory rules by incorporation. The  appointments to Class I Service by interview were  made by  the  Government in consultation with  the  Union  Public Service  Commission.   The selection was made by  the  Union Public Service Commission.  The appointments by  competitive examination proved fruitless.  The country was in a state of emergency.   Appointment and selection by interview was  the only  course  possible.   It  could not  be  said  that  all appointments should have been made by promotion.  That would be  not in the interest of the Service.  The  Service  Rules were  administrative in character.  The  Government  relaxed the  rules.  The amendments of the rules in 1967  recognised the  reality of the situation of appointment  by  interview. That  is why the 1967 amendment recognised that 50 per  cent of  "the direct recruits by competitive/ad  hoc  appointment were  to  be  reserved  for  graduate  engineers  who   were commissioned in the Armed Forces on a temporary basis." 902 on  a  temporary basis." Ultimately, when  the  rules  were, amended in 1969 and the rules became statutory in  character not   only  the  recruitment  by  interview  but  also   the relaxation of rules was regularised.  The result is that the respondent  who were appointed by interview fell within  the class of direct recruits. The  only other contention on behalf of the  appellants  was that they were promoted to Class I Service in the years 1958 and   1959  respectively  and  were  thus  senior   to   the respondents who were recruited to the Service  subsequently, and, therefore, the appellants should be confirmed in  Class I Service in priority to the respondents.  The promotion  of the  appellants was to temporary posts in Class  I  Service. The appellants were to be confirmed in permanent posts.  The respondents  who were appointed by  competitive  examination and  by  interview were also appointed to  temporary  posts. They  were  also to be confirmed in  permanent  posts  after having served the period of probation in accordance with the rules.  The recruitment to Class I Service during the  years

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1951 to 1958 was on the quotas fixed by rule 4 of the  Class I  Rules  on  the  ratio of 10  per  cent  for  departmental promotion  and 90 per cent for direct  recruitment.   Though rule  4  fixed the quotas on the ratio of 10  per  cent  for departmental   promotion   and  90  per  cent   for   direct recruitment  the Union Government in consultation  with  the Union  Public  Service  Commission  relaxed  the  rules  and revised  as an interim measure the existing quota of 10  per cent of departmental candidates for promotion to 50 per cent in the years 1959 to 1963 inclusive.  From 1964 to 1968  the quota fixed by rule 4 was followed again.  Finally, in  1969 the  rules  were  amended and  the  quota  for  departmental promotion  was 25 per cent and for direct recruitment at  75 per cent. In  this background the recruitment against temporary  posts between  the  years 1951 and 1971 was indicated by  a  chart prepared by the Government and accepted to be correct.   The recruitment against temporary posts indicated the  following features Between 1951 and 1956 the total recruitment against temporary posts was 84 whereof 75 were allocated for  direct recruits and 9 for departmental promotees.  But in fact  the recruitment  by  interview was for 29  and  by  departmental examination.   During the years 1957 and 1963 the number  of vacancies for recruitment to temporary posts was 675 whereof 339   were  allocated  for  direct  recruits  and  336   for departmental   promotees.    Only  20  were   recruited   by competitive  examination  and  171  by  interview  and   the remaining 484 were instances of departmental promotion.  Be- tween the years 1964 and 1968 the total recruitment was  264 whereof  238 were allocated for direct recruits and  26  for departmental  promotees.   In fact, recruitment was  of  139 persons by 903 competitive  examination and of 98 by interview and  27  ’by departmental  promotion.   Between the years 1969  and  1971 there  were 45 vacancies to temporary posts whereof 33  were allocated  for  direct  recruits  and  12  for  departmental promotees.  I were recruited by competitive examination  and 34  were promoted departmentally.  The  recruitment  against temporary  posts during the years 1951 and 1971  shows  that during the relevant years 1959 to 1963 the Union  Government relaxed the quota and increased the quota of 10 per cent  to 50 per cent for departmental promotion.  At cannot therefore be  said  that any injustice was done  to  the  departmental promotees  or that any advantage was gained by  the  persons who  were  recruited  by interview.  It is  because  of  the conditions  of  emergency  that the quota  for  filling  the temporary posts was half for departmental promotees and half for direct recruitment. The  confirmation  against  permanent  posts  was  also   in according ance with the quotas fixed by rule 4 for the years 1951 to 1958, namely, 10 per cent for departmental promotion and  90 per cent for direct recruitment.  During  the  years 1959 to 1963 inclusive the Union Government in  consultation with  the Union Public Service Commission relaxed the  quota rule and increased the quota for departmental promotees from 10  per cent to 50 per cent and reduced the quota of  direct recruitment  from 90 per cent to 50 per cent.  In  the  year 1959  126  permanent posts were available  whereof  63  were allocated  for  direct recruits and the other  63  were  for departmental  promotees.   In 1960 there were  14  permanent posts  and  7 were allocated for direct recruits and  7  for departmental  promotees.   Again,  in  1961  there  were  23 permanent  posts  available. 12 were  allocated  for  direct recruits and 11 for departmental promotees.  For 1962  there

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were 20 permanent posts whereof 10 were allocated for direct recruits  and the other 10 for departmental  promotees.   In 1963 there were 11 permanent posts whereof 5 were  allocated for  direct recruits and 6 for departmental  promotees.   In 1964  there were 9 permanent posts whereof 8 were  allocated for  direct recruits and one for departmental promotee.   In 1965 there were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees.   In 1966  there  were  113  permanent  posts  whereof  82   were allocated  for  direct  recruits  and  11  for  departmental promotees  and 20 for released officers in  accordance  with the  revised rule in the year 1967.  In 1967 there  were  45 permanent  posts  whereof  40  were  allocated  for   direct recruits  and 5 for departmental promotees.  In  1968  there were 14 permanent posts available whereof 13 were  allocated for direct recruits and one for departmental promotee. The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent for 904 departmental   promotees   and  90  per  cent   for   direct recruitment but during the years 1959 to 1963 the quota  was changed  with  the result that half of the  permanent  posts were filled by departmental promotion and the other half  by direct  recruitment.  From 1964 to 1968 the old quota of  10 per cent for departmental promotion and the remaining 90 per cent for direct recruitment was resorted to. In 1969 rule  4 was changed ’with the result that there were 25 per cent for departmental  promotion  and the remaining  75  percent  for direct  recruitment.  In the year 1959 the  direct  recruits who were confirmed in permanent posts were recruited by  the Union  Public  Service Commission by  interview  during  the years  1951  to 1956.  In 1960 the direct  recruits  through interview  who  were  confirmed had  been  selected  through interview by the Union Public Service Commission between the years  1953 and 1956.  In 1961 the direct recruits who  were confirmed  in  permanent  posts  were  those  who  had  been selected  by  the Union Public  Service  Commission  through interview during the years 1956 to 1957.  In 1962 the direct recruits  who were confirmed in permanent posts  were  those who had been selected by the Union Public Service Commission through  interview during the years 1956 to 1958.   In  1963 the  direct recruits who were confirmed in  permanent  posts were those who had been selected by the Union Public Service Commission through interview between the years 1958 to 1961. In 1964 the direct recruits who were confirmed in  permanent posts  were  those  recruited in 1962 by  the  Union  Public Service  Commission through interview.  In 1965  the  direct recruits  who were confirmed in permanent posts  were  those recruited  by  the Union Public Service  Commission  through interview in 1962 and 1963.  In 1965 13 direct recruits were confirmed  and  they included some of the  respondents.   In 1966  82  direct recruits were confirmed  against  permanent posts  and  they were persons who had been selected  by  the Union Public Service Commission through interview during the year 1963 and they included some of the respondents. In  the year 1959 when the Government in  consultation  with the  Union Public Service Commission revised as an.  interim measure the increase of the quota of departmental  promotion of  candidates  from  10 to 50 per cent  and  followed  that system up to the end of 1963 a question arose as to how  the then existing permanent vacancies were to be filled and  the Union Public Service Commission advised that the same  might be filled by confirmation of direct recruits, namely,  those recruited  on  the basis of competitive examination  and  by

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advertisement  and selection and promotees in the  ratio  of 11.  The advice of the Union Public Service  Commission  was accepted  and the Departmental Promotion Committee acted  on that  basis.  It is apparent that during those  years  there was  a relaxation in the observance of rules in the case  of appellants and the other departmental promotees.  The  Union Government 905 all  throughout acted in consultation with the Union  Public Service  Commission.   The  departmental  promotees   gained considerable  advantage  by relaxation of  the  rules.   The direct  recruits were not shown any preference at all.   The proportion of confirmation of departmental promotees and  of direct recruits by interview was 1 : 1 In  the year 1967, the Government was again faced  with  the question of confirmation of direct recruits by interview  as well   as  by  competitive  examination  against   permanent vacancies  in  the grade falling in the  direct  recruitment quota  prescribed  in the rules.  The Union  Public  Service Commission advised that direct recruits by interview and  by competitive examination could be confirmed against permanent vacancies  within the fixed quota of direct  recruits.   The result  was  that  in 1969 the Class I  Service  Rules  were amended and the quota for departmental promotion was  raised from 10 to 25 per cent and the quota of direct recruits  was reduced from 90 to 75 per cent. The  appellants  can  have  no  grievance  with  regard   to confirmation.    The   departmental  promotees   have   been confirmed  against  permanent posts within  their  quota  in order  of seniority.  Departmental promotees who  have  been confirmed  up to the year 1970 had been promoted to Class  I Service  before the appellants.  On the other  hand,  direct recriuts  consisting  of  those  recruited  by   competitive examination  as  well as by interview  have  been  confirmed against permanent vacancies within their quota.  As a matter of fact between the years 1959 and 1963 inclusive the  quota fixed for departmental promotees was increased from 10 to.50 per  cent  and  thereby  the  confirmation  of  departmental promotees and direct recruits was equally balanced. The  direct  recruits who were appointed by  interview  fell within  the class of direct recruits.  The quota  fixed  for direct  recruits  was never infringed  by  absorbing  direct recruits by interview beyond the quota.  The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed.  By reason of  relaxation of rules in regard to increase of  quota  for departmental  promotees  they gained  advantage  during  the years  1959  to 1963 when because of  the  emergency  direct recruits  by  interview were selected by  the  Union  Public Service Commission. For the foregoing reasons the appeal fails and is dismissed. In view of the fact that there was no order as to costs  in’ the High Court parties will bear their own costs. G.C.                            Appeal dismissed. 906