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PETITIONER: EX-CAPT. ASHOK KUMAR SAWHNEY

       Vs.

RESPONDENT: UNION OF INDIA & OTHERS

DATE OF JUDGMENT13/01/1982

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1982 AIR  795            1982 SCR  (3)  38  1982 SCC  (1) 497        1982 SCALE  (1)3

ACT:      Released  Emergency  Commissioned  Officers  and  Short Service Commissioned  Officers  (Reservation  of  Vacancies) Rules, 1971,  Rules  4(1),  6(3)  and  8-Interpretation  of- ’Recruitment’-Meaning of.

HEADNOTE:      Respondents Nos. 2 to 14 were appointed to the cadre of Income-tax Officers, Class I, against vacancies reserved for Scheduled Caste  and Schedules  Tribes, as  a  result  of  a competitive examination or test as envisaged by sub-rule (3) of Rule  6. The  Petitioner was  similarly appointed  to the same cadre but against a vacancy reserved under sub-rule (1) of Rule  4 for  certain officers  of the Armed Forces of the Union. He  was placed  in the  impugned seniority list below respondents Nos.  2 to  14. He made a representation against the seniority  assigned to him on the ground that under sub- rule (3) of Rule 6 he was entitled to rank immediately below candidates  appointed   against  unreserved  vacancies.  The representation was  rejected by  a letter  dated 16th March, 1979. The  petitioner filed  a petition under Art. 32 of the Constitution  of  India  seeking  the  issuance  of  a  writ quashing that  letter. At  the hearing  it was  not disputed that  the   petitioner  was   entitled  to  the  benefit  of reservation sub-rule (1) of Rule 4 and to have his seniority determined in  accordance  with  sub-rule  (3)  of  Rule  6. However, it  was contended on behalf of the respondents Nos. 2 to  14, inter alia, that the rules of the service had been amended earlier  to 1971,  so as to place candidates covered by sub-rule (1) of Rule 4 below those who had been appointed against   reserved    vacancies   through    a   competitive examination.      Accepting the petition, it was ^      HELD: (1)  Sub-rule (3)  of Rule  6 is not ambiguous in any manner  whatsoever and lays down in clear terms that the officers appointed against vacancies reserved under sub-rule (1) of Rule 4 shall rank below candidates who were appointed against  unreserved  vacancies  in  the  Services  concerned through a competitive examination, etc. [40 F-G]      2. Respondents Nos. 2 to 14 have been appointed against

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vacancies reserved for Scheduled Castes and Schedule Tribes. Clearly therefore,  they  must  rank  below  the  petitioner inasmuch as  it cannot  be said  with any  plausibility that they were appointed against unreserved vacancies. [41 A-B]      3. The  argument that  the  rules  of  the  service  in question had been amended to 1971, so as to place candidates governed by  Rule 4(1) below those who had been appointed to reserved vacancies  through a competitive examination has no substance and  makes no  difference  to  the  interpretation which is given above to 39 sub-rule (3)  of Rule  6, Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to  Central Civil  Services and  Posts, Class  I, to which the  Rules apply, shall be deemed to have been amended to the  extent provided for in the Rules. Although the rules regulating the  seniority of the petitioners and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner  seniority below respondents Nos 2 to 14, the situation  is  wholly  irrelevant  to  the  present  dispute because after  the amendment  brought about by Rule 8 of the Rules, the  members of  the service  to which the contenting parties belong,  have to be governed by the later amendment, of which  sub-rule (3)  of Rule  6 forms a part. This is the inescapable consequence  flowing from  Rule 8  of the Rules. [41 G-H, 42 A-D]      4. The  word ’recruitment’  is comprehensive  enough to embrace the  content of  all the  rules  proceeding  Rule  8 including the fitment of candidates recruited to the service vis-a-vis each other. [42 D-E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 1337 of 1979.      (Under article 32 of the Constitution of India).      V.M. Tarkunde,  P.H. Parekh  and Hemant  Sharma for the Petitioner.      Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents.      The Order of the Court was delivered by      KOSHAL,  J.   The  short   question  which   falls  for determination  in   this  petition  under  Art.  32  of  the Constitution  of   India  praying   for  the   issuance   of appropriate writs  quashing the  letter dated 16th of March, 1979, by  which the  representation made  by the  petitioner against the  seniority assigned  to  him  in  the  cadre  of Income-tax  Officers,   Class-I  was  rejected  and  he  was informed that  the seniority  list forming  an  appendix  to Annexure ’l’  had been  correctly framed  in accordance with the rules then in force.      2. The answer to the question posed by the petition has to be  answered with  reference to  Rules 4,  6 and 8 of the Released Emergency  Commissioned Officers  &  Short  Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (hereinafter called  the Rules).  The relevant  part of Rule 4(1) reads thus:      4(1) Twenty  percent of  the vacancies  in  the  Indian Foreign Service,  and 25 percent of the vacancies in all the Central Civil  Services and  posts, Class  I, to which these rules apply................. 40 shall  be   reserved  for  being  filled  by  the  Emergency Commissioned Officers  and the  Short  Service  Commissioned Officers  of   the  Armed  Forces  of  the  Union  who  were

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commissioned after  the 1st  November, 1962  but before  the 10th January, 1968, and who-      (i) ................................................      (ii) in the case of Short Service Commissioned Officers           are released  on the expiry of the tenure of their           service; or      (iii) ................................................      Rule 6  in so  far as  it is  relevant for  our purpose      provides:      6(1) ..................................................      (2)  Seniority inter se of candidates who are appointed           against the  vacancies reserved under sub-rule (1)           of rule  4 and allotted to a particular year shall           be determined according to the merit list prepared           by the  Commission on  the basis of the results of           their performance  at the  examination or  test or           interview.      (3)  All candidates who have been appointed against the           vacancies reserved  under sub-rule  (1) of  rule 4           shall rank below the candidates who were appointed           against unreserved  vacancies in  the services  of           posts through  the competitive examination or test           or   interview   conducted   by   the   Commission           corresponding to  the year  to  which  the  former           candidates are allotted.      It is  not disputed  that the  petitioner is an officer who is  entitled to  the benefit  of reservation  under  the above abstracted  portion of  Rule  4(1)  and  to  have  his seniority accordance with sub-rule (3) of Rule 6. As we read the sub-rule  last  mentioned  we  do  not  find  it  to  be ambiguous in  any manner  whatsoever. It  lays down in clear terms that the officers appointed against vacancies reserved under sub-rule (1) of Rule 4 shall rank below candidates who were appointed  against unreserved vacancies in the services concerned   through    a   competitive   examination,   etc. Respondents Nos.  2 to  14  who  have  been  placed  in  the impugned seniority  list above the petitioner were appointed to the  cadre of  Income-tax Officers,  Class  I  through  a competitive examination  or test as envisaged by sub-rule(3) of Rule  6. Now  if they  were appointed  against unreserved vacancies, they  are entitled  to rank  above the petitioner but not otherwise. 41 It is  conceded before us that respondents Nos. 2 to 14 have been appointed  against  vacancies  reserved  for  Scheduled Castes and  Scheduled Tribes.  Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.      3. Mr.  Abdul Khader  appearing for  the Union of India has contested  the interpretation just above placed by us on sub-rule (3) of Rule 6. According to him that interpretation makes the  sub-rule retrospective  in operation, which it is not.  We   agree  that   the  sub-rule  is  intended  to  be prospective only  and that the above interpretation would be operative only  after the  date on  which the  sub-rule  was promulgated and  not before  that. But  then that means that every  seniority   list  prepared  after  the  date  of  the promulgation of  the  sub-rule  would  be  governed  by  it. Similarly, every  promotion made and every question relating to seniority  cropping up after the date of the promulgation of the  sub-rule (which  is  28th  August,  1971)  shall  be determined  according  to  that  sub-rule.  No  question  of retrospectivity of the sub-rule is thus involved. Of course, the inter  se seniority  of officers of the cadre prevailing

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upto 28th  August, 1971 had to be determined under the rules as they  existed before  that date  and any  promotions made earlier to  that date  would continue  to be good if made in accordance with  those rules.  However, the position changed with the  promulgation of  the Rules  and any promotion made thereafter has to conform to them.      4. Faced  with the  above situation  Mr.  Abdul  Khader argued that the word, ’unreserved’ in sub-rule (3) of Rule 6 would  embrace   the  vacancies   reserved  for   candidates belonging to  the Scheduled  Castes and Scheduled Tribes who had joined the cadre through open competition, etc., because the sub-rule meant to take within its ambit all such persons who had  been recruited  in that  manner. The  logic of  the argument is  not clear to us because it makes the whole sub- rule meaningless.  If the  argument were to be accepted, the use of  the word  ’unreserved’ would  be wholly uncalled for and we  just cannot  hold that  the word is redundant, forms part  as  it  does  of  subordinate  legislation.  The  word ’unreserved’ can  obviously not be equated with its antonym, that is, ’reserved’, and has to be applied only to vacancies which do not fall within the reserved categories.      5. Mr.  Abdul Khader took another point and that was to the effect  that the  rules of  the service  in question had been amended 42 earlier to  1971 so  as to  place candidates covered by Rule 4(1)  below   those  who  had  been  appointed  to  reserved vacancies through  a competitive  examination. That may well have been  so but  then that  makes  no  difference  to  the interpretation which  is given above to sub-rule (3) of Rule 6. Rule  8 of  the Rules declares in no uncertain terms that all rules  regulating the  recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be  deemed to have been amended to the extent provided for in  the Rules.  If the rules regulating the seniority of the petitioner  and respondents Nos. 2 to 14 were so amended earlier to  1971 as  to assign  to the  petitioner seniority below respondents  Nos. 2  to 14,  the  situation  would  be wholly irrelevant  to the  present dispute because after the amendment brought  about Rule 8 of the Rules, the members of the service  to which  the contested parties belong, have to be governed by the amendment of which sub-rule (3) of Rule 6 forms a  part. This  is the  inescapable consequence flowing from Rule 8 of the Rules.      6. We  may take  note here  of the  only other argument raised by Mr. Abdul Khader and that is that Rule 8 regulates only the  recruitment of  persons to  Central Civil Services and Posts,  Class I, and not to their conditions of service. We do  not find  any substance  in this argument either. The word ’recruitment’  is comprehensive  enough to  embrace the content of  all the  rules preceding  Rule 8  including  the fitment of  candidates recruited  to the  service  vis-a-vis each other.      7. In  the result,  we accept  the petition,  quash the seniority list abovementioned as well as the letter by which the representation  there against made by the petitioner was rejected  and  direct  respondent  No.  1  to  re-frame  the seniority  list   assigning  the   petitioner  seniority  in accordance with  law as  explained above.  There will  be no order as to costs. N. K. A.  Petition allowed. 43