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PETITIONER: H.V. PARDASANI, ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT12/03/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. SEN, AMARENDRA NATH (J)

CITATION:  1985 AIR  781            1985 SCR  (3) 286  1985 SCC  (2) 468        1985 SCALE  (1)556  CITATOR INFO :  RF         1988 SC 902  (10,13)

ACT:      Central Secretariat  Service Rules-Rules 12 and 13 (5)- Central  Secretariat  Service  (Promotion  to  Grade  I  and Selection Grade) Regulations 1964, Regulation 5(2)(c).      Secretariat Service-Section Officers-Promotion to Under Secretary- Drawing  of  Select  List  of  Section  Officers- fixation of seniority between promotees and direct recruits- How  determined-Service   scheme  -   Whether  ultra  -Vires Articles 14 and 16.      Constitution of India 1950, Articles 14 & 16      Central Secretariat Service Scheme-whether ultra vires.

HEADNOTE:      The Central  Secretariat service  is composed  of  four grades .  (i) Selection Grade (Deputy Secretary); (ii) Grade I (Under Secretary); (iii) Section Officers’ grade; and (iv) Assistants’ grade.  Rule 12(2)  of the  Central  Secretariat Service Rules provides that promotions to the grade of Under Secretary be  made from  amongst members  belonging  to  the grade of  Section Officers  and Grade  ’A’ Officers  of  the Central Secretariat Stenographers’ Service. Under rule 12(4) the  Central   Government  framed  the  Central  Secretariat Service  (Promotion   to  Grade   I  and   Selection  Grade) Regulations, 1964.  Regulation 5  (2) (c)  provided that the names of  officers  appointed  to  Section  Officers’  Grade before the  appointed day and included in the Select List of Section  Officers  at  the  initial  Constitution  shall  be arranged in  the order  of  their  seniority  as  determined before that  day. Additions  to this  List shall  be made by including officers  appointed to the Section Officers’ Grade after the  appointed day  through the  select List  for  the Grade, officers  appointed on the basis of an earlier select list being  placed above  those officers  appointed  on  the basis  of   a  later  select  list.  This  Select  List  was contemplated  to  cover  the  entire  Secretariat  and  was, therefore, required  to reflect  all the select lists of the cadre of  Section Officers.  In this single list of eligible Section Officers the names of the directly recruited Section Officers on the basis of the combined

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287 Competitive examinations  and arranged in the order of merit in such examinations had to be interpolated according to the quota of  vacancies reserved for direct recruits at the time of their recruitment.      In the  writ petitions  to this  Court, the petitioners who belonged  to the  cadre  of  Sections  Officers  in  the Central  Secretariat   Service   challenged   the   combined seniority list  of all the Section Officers belonging to the Service and sought a direction that the select list in Grade I of the Service be recast, that some of the direct recruits included in  the eligibility list of Section Officers should be omitted,  and that  a  direction  be  issued  to  appoint promotees to  Grade I  with effect  from the  date on  which junior  directly   recruited  Section   Officers  have  been appointed to  Grade I.  The vires of the note below Rule 12, Rule 13(5)  and Regulation  3(3) of the Fourth Schedule were also assailed  as being  ultra vires  Articles 14 and 16. It was further  contended that the seniority between the direct recruits and  promotees in the grade of Section Officers has to be  fixed on  the basis of length of service in the grade and not  by  the  process  envisaged  under  the  Rules  and Regulations.      The respondents  contested the  petitions alleging that the provision  for fixing  seniority has  been made  by  the statutory Rules and that the combined seniority list as also the eligibility  list were  in accordance with the statutory scheme.      Dismissing the Writ Petitions. ^      HELD: 1.  In the  absence  of  any  special  provisions regulating determination  of seniority, length of continuous service in  any particular  grade would  be  the  basis  for determining seniority  in that grade. If a rule prescribes a method  of  fixation  of  inter  se  seniority,  the  normal practice would  not apply and the rule shall prevail. [291H; 292A]      2. The  scheme does  not appear  to be  arbitrary.  The Rules and  the Regulations  intended to  give effect  to the scheme are  not ultra  vires of either Article 14 or Article 16 of the Constitution. [294A]      3. The  scheme constituting a Service to be manned both by direct  recruits as  also  promotee  is  unexceptionable. Prescription of  quota becomes  necessary to  work out  such scheme and  rota is a well accepted method for giving effect thereto. Seniority  based upon  rota is  not open to attack. [293G]      4. Under  rule 13(1)  dealing with  recruitment to  the grade of  Section  Officers  a  quota  has  been  fixed  and provision has  been made  for manning  of the  cadre both by direct recruitment  as also  by promotion.  Seniority in the cadre of Section Officers is the basis on which selection to the higher  grade in  respect of  promotees has  to be made. [292 B-C]      5. Regulation 3(3) of the Fourth Schedule provides that inter se seniority of direct recruits and promotees shall be according to the quota of 288 substantive vacancies  in  the  grade  reserved  for  direct recruits and promotees respectively. The Rules make detailed provision for  given effect  to the  quota  rule  and  since officers are drawn from two different sources, provision has also been  made for  fixing their  inter se  seniority.  The inter se  seniority of  the direct recruits and promotees in each  of  the  cadres  of  Section  Officers  has  not  been

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challenged in  the instant case. Such fixation has been made years back.  In the  absence of challenge, the consequential process of  drawing up  of select  list depending  upon such seniority for promotion to Grade I (post of Under Secretary) would not be open to challenge. [293H; 294A; D]      6. If  there is a quota rule to implement, the question of length  of services  becomes an irrelevant consideration. Once the  quota rule  fails,  the  rota  can  no  longer  be enforced without  causing prejudice  to officers with longer periods of  service in  the cadre. The quota rule itself has not been questioned in the instant case. [294F-G]      Mervyn Coutindo  & Ors. v. Collector of Customs, Bombay JUDGMENT: Gujarat &  Ors. [1971]  I S.C.R.  1037. P.S. Mahal & Ors. v. Union of  lndia &  Ors. AIR  1984 S.C.R. 1291, A. Janardhana [1983] 2  S.C.R. 936 and P.C. Sethi v. union of lndia [1975] 3 S.C.R. 200 referred to.

&  ORIGINAL JURISDICTION : Writ Petition Nos. 10618-10628 of                             1983       (Under Article 32 of the Constitution of India)       U.R. Lalit and Randhir Jain, for the Petitioners.      Kapil Sibal and KR. Nagaraja, for the Respondents. S.N. Appley, S.S. Jouhar, R.N. Poddar, K.M. Sharma, Randhir   Jain, J.D. Jain and Mrs. K. Kocher, for the Intervener.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. Petitioners  in these applications under Article  32 of the Constitution belong to the cadre of Section  Officers   in  the   Central  Secretariat   Service (’Service’ for short). They challenge the combined seniority list of  all the  Section Officers  belonging to the Service and have asked for a direction that the select list in Grade I of  the Service  be recast.  They have  also asked  for  a further direction  that some of the direct recruits included in  the  eligibility  list  of  Section  Officers  shown  in Annexure P-1  should be  omitted from  it  and  a  direction should issue from the Court to appoint 289 promotees to  Grade I  with effect  from the  date on  which junior    directly  recruited  Section  Officers  have  been appointed to  Grade I.  They have further assailed the vires of the  note below Rule 12, rule 13(5) and Regulation (3) of the Fourth  Schedule as being ultra vires Articles 14 and 16 of  the  Constitution.  According  to  the  petitioners  the seniority between  the direct  recruits and promotees in the grade of  Section Officers  has to  be fixed on the basis of length of  service in  the grade  and  not  by  the  process envisaged under the Rules and the relevant Regulations.      The respondents have taken the stand that the provision for fixing  seniority has  been made  by the statutory Rules and the combined seniority list as also the eligibility list are in accordance with the statutory scheme.      These applications  were heard  along with  a batch  of other writ  petitions filed  by Assistants  belonging to the Service,  the   judgment  whereof  is  being  simultaneously delivered.      It is  appropriate that  we refer  to the provisions of the relevant  Rules and  Regulations before  we  proceed  to examine the  submissions. The  composition of the Service is covered by rule 3 which provides for four grades being:-     (i)   Selection   Grade   (Deputy   Secretary   to   the      Government of India or equivalent);

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   (ii)  Grade I  (Under Secretary  to  the  Government  of      India or equivalent);     (iii) Section Officers’ grade;    (iv)   Assistants’ grade.      The first two grades have been combinedly classified as Central Civil  Service Grade  ’A’ while  the other  two have similarly been  classified together as Central Civil Service Group ’B’-Ministerial. In this bunch of writ applications we are concerned  with the  claim of Section Officers belonging to the  third grade  in the classification seeking promotion to Grade  I which  is covered  by the  second Grade. Rule 12 makes provision  for recruitment  to the  Selection Grade as also Grade  I. Sub-rule  (2) thereof provides: "Vacancies in Grade I  shall be  filled by promotion of permanent officers of the  Section Officers’  Grade who  have rendered not less than eight  years’ approved  service in  that Grade  and  of permanent officers of the Grade 290 ’A’ of  the Central  Secretariat Stenographers’  Service who have rendered not less than eight years’ approved service in that Grade  and have worked as Section Officers for at least a period of two years in accordance with the proviso to rule 10 and  are included  in the  Select List for Grade I of the Service  prepared  under  sub  rule  (4)."  There  are  four provisos to  this sub-rule.  The second  and third  provisos which are relevant are to the following effect:      "Provided further  that no  person included  in a later      Select List  shall be  eligible to  be appointed to the      Grade until  all officers included in an earlier Select      List have been appointed.      Provided further  that if  any person  appointed to the      Section Officers’  grade is considered for promotion to      Grade I  under this sub-rule, all persons senior to him      in Section  Officers Grade  who have  rendered not less      than six  years’ approved  service in that Grade, shall      also be  considered notwithstanding  that they  may not      have rendered  eight years’  approved service  in  that      Grade; provided  that the  aforesaid condition  of  six      years’ approved  service shall  not apply  to a  person      belonging to  the  Scheduled  Caste  or  the  Scheduled      Tribes."      Sub-rule (4)  provides that  for purposes  of sub-rules (1) and  (2) a Select List for the Selection Grade and Grade I shall be prepared and may be revised from time to time. In Note 2  to sub-rule  (5) it  has been indicated that "in the case of  persons included in the Select List for the Section Officers’ Grade  ’approved service’  for the purpose of this rule shall  count from the 1st July of the year in which the names of  the officers  are included in the Select List." In the case  of the  direct recruits  to the  Section Officers’ Grade, such  service shall  count from  the 1st  July of the year following  the year  of the  competitive examination on the results  of which they have been recruited provided that where there  is a  delay of  more than  three months  in the appointment of  any candidate,  such delay is not due to any fault on his part.      Since seniority  in the  cadre of  Section Officers  is relevant for  the disposal  of the  present applications, we have to  refer to  the  method  of  recruitment  of  Section Officers  in   sub-rule  (I)   of  Rule  13.  That  sub-rule prescribes: 291      "One sixth  of the substantive vacancies in the Section      Officers’ Grade  in any  cadre shall be filed by direct      recruitment  on   the  results   of   the   competitive

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    examinations held  by the  Commission for  this purpose      from time  to time.  The remaining  vacancies shall  be      filled  by   the  substantive  appointment  of  persons      included in  the Select  List for the Section Officers’      Grade in that cadre.. . " B Sub-rule (5) of rule 13 prescribes:      "For the purpose of sub-rules (1) and (2) a Select List      for the  Section Officers’  Grade shall be prepared and      may be  revised from  time to  time. The  procedure for      preparing and  revising the Select List shall be as set      out in the Fourth Schedule." Rule 18(3)(c) dealing with seniority provides:      "The relative  seniority of  direct recruits to a Grade      and persons  substantively appointed  to the Grade from      the Select  List for  the Grade  shall be  regulated in      accordance with  the provisions  made in this behalf in      the Fourth Schedule." Regulation 2  dealing with  the maintenance  of Select  List requires:      "Additions to the Select List for the Section Officers’      Grade in any cadre shall be made in such numbers as the      cadre authority may determine from time to time keeping      in view the existing and anticipated vacancies so as to      ensure that  one person  each by  rotation is  included      from  out   of  the  categories  of  persons  specified      below.... " Regulation 3  deals with  seniority and  clause (3)  thereof says:      "Direct recruits  to a  grade and persons substantively      appointed to  the Grade  from the  Select List  for the      Grade shall be assigned seniority inter se according to      the  quotas  of  substantive  vacancies  in  the  Garde      reserved for  direct recruitment and the appointment of      persons included in the Select List, respectively."       There is no dispute that in the absence of any special provision regulating  determination of  seniority, length of continuous service  in any  particular grade  would  be  the basis for determining seniority 292 in that grade. The legal position is equally settled that if a  rule   prescribes  a  method  of  fixation  of  inter  se seniority, the  normal practice would not apply and the rule shall prevail,  obviously subject  to its constitutionality. There is  no dispute  that under  rule  13(1)  dealing  with recruitment to  the grade  of Section  Officers a  quota has been fixed  and provision  has been  made for manning of the cadre both  by direct  recruitment as  also by promotion. At the time  when the Service was constituted in 1962 the quota of direct  recruits had  been fixed at l/4th, and after five years from the appointed day it was made L/3rd. Later it has been reduced  to 1/6th. The manning of the Section Officers’ Grade, therefore,  has to  be by @ direct recruitment to the extent of  1/6th and  by promotion out of the Select List to the extent of the remaining 5/6th.      The Select  List referred to in sub-rule (1) of rule 13 is  drawn   up  by  following  the  procedure  specified  in Regulation 2  of the  Fourth Schedule  which  provides  that additions to the Select List for the Section Officers’ Grade in any  cadre shall be made keeping in view the existing and anticipated vacancies  so as  to ensure that one per on each by rotation is included from out of the category of persons, namely, (a)  officers of  the Assistants’ Grade belonging to that cadre  who have  rendered not  less than  eight  years’ approved service  in that  grade and are within the range of seniority  in  order  of  their  seniority  subject  to  the

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rejection of the unfit, the range of seniority being defined in rule  2(oo), and (b) persons selected on the basis of the result of  the limited  departmental competitive examination held by  the Commission,  from time to time, in the order of their merit.      Inter se  seniority of direct recruits and promotees in the grade  of Section  Officers is  fixed in accordance with the provisions  contained in  Regulation 3(3)  of the Fourth Schedule. The requirement of the Regulation is that inter se seniority of  the direct  recruits and persons substantively appointed to  the grade  from  the  select  list  should  be determined in  accordance with  the quota  on the  basis  of substantive vacancies  in the  grade reserved  for  the  two categories of officers.      As already indicated, seniority in the cadre of Section Officers is the basis on which selection to the higher grade in respect  of promotees  has to be made. If the petitioners are not  able to  establish that  the determination of their seniority is wrong and they have 293 been  prejudiced   by  such   adverse  determination,  their ultimate claim to promotion would indeed not succeed.      Promotion to  the grade of Under Secretary is made from amongst the  members  belonging  to  the  grade  of  Section Officers and  rule 12  is the  relevant rule. In exercise of powers under  rule 12(4),  the Central Government has framed the Central  Secretariat Service  (Promotion to  Grade I and Selection  Grade)   Regulations,  1964.  Regulation  5(2)(c) provides: "Officers other than those included in clauses (a) and (baa  shall be  arranged in  the manner specified below: (i) The names of officers appointed to the Section Officers’ Grade before  the appointed  day and  included in the Select Lists of  Section Officers at the initial constitution under paragraph I  of the  Fourth Schedule  to the  Rules shall be arranged in  the order  of  their  seniority  as  determined before that  day. Additions  to this  list shall  be made by including officers  appointed to the Section Officers’ Grade after the  appointed day  through the  Select List  for  the Grade, Officers  appointed on the basis of an earlier select list being  placed above  those appointed  on the basis of a later select  list. The  order of names shall be in the same order as  in all  the Secretariat Select Lists issued by the Department of  Personnel and  Administrative Reforms."  This Select List  is contemplated to cover the entire Secretariat and is, therefor required to reflect all the select lists of the cadres  of Section  Officers. In  this  single  list  of eligible  Section   Officers  the   names  of  the  directly recruited Section  Officers on  the basis  of  the  combined competitive examinations  and arranged in the order of merit in such  examinations as  the scheme  provides  have  to  be interpolated according  to the  quota of  vacancies reserved for direct recruits at the time of their recruitment.      In our  judgment in  the connected  writ petition  Nos. 9323-9333 of 1982 delivered today, we have already held that the scheme  constituting a  Service to  be  manned  both  by direct  recruits   as  also  promotees  is  unexceptionable. Prescription of  quota becomes  necessary to  work out  such scheme and  rota is a well accepted method for giving effect thereto. Seniority  based upon  rota, therefore, is also not open to attack.      Regulation 3(3)  of the  Fourth Schedule  provides that inter se seniority of direct recruits and promotees shall be according to the quota of substantive vacancies in the grade reserved for direct recruits and promotees respectively. The Rules make  detailed provision  for h  giving effect  to the

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quota rule and since officers are drawn from two 294 different sources,  provision has  also been made for fixing their inter  se seniority.  The scheme does not appear to be arbitrary and  we are, therefore, of the view that the Rules and the  Regulations intended  to give  effect to the scheme are not  ultra vires  of either  Article 14 or Article 16 of the Constitution. We may reiterate that the petitioners have not questioned  the quota  rule itself  and if they had, for the reasons  we have indicated both here and in the judgment of the  connected matters,  the objection would have been of no avail.      Considerable argument  was advanced  in support  of the petitioners’ stand  that in  giving  effect  to  the  scheme prejudice  has   been  caused  to  the  petitioners.  It  is appropriate to  take note here of the fact that the inter se seniority of  the direct  recruits and  promotees in each of the cadres  of Section  Officers  has  not  been  challenged before us.  Such fixation  has been  made years back. In the absence of  challenge to  such fixation,  the  consequential process of  drawing up  of select  list depending  upon such seniority for promotion to Grade I (post of Under Secretary) would not  be open  to challenge.  The  scheme  contemplates drawing up  of a  combined list  from out  of the  cadres of Section Officers  and to entertain a challenge at this stage would naturally affect the respective seniority lists in the cadres and  would involve  many officers  who have  not been made parties  to this  proceeding. This  Court has taken the view in  many decided cases that if there is a quota rule to implement, the  question Of  length of  services becomes  an irrelevant consideration  (see Mervyn  Coutindo  &  Ors.  v. Collector of Customs, Bombay & Ors.: (1) N.K. Chauhan & Ors. v. State  of Gujarat  & Ors.;(2)  and P.S.  Mahal &  Ors. v. Union of  India &  Ors. (3) A number of decisions were cited on behalf of the petitioners, a reference to all of which we have made  in the  connected judgment.  As pointed out by us therein, both  the cases of A. Janardhana (4) and P.S. Mahal this Court  proceeded on  the footing  that there had been a break-down in  the enforcement  of the  quota rule. Once the quota rule fails, the rota can no longer be enforced without causing prejudice to officers with longer periods of service in the  cadre. We  do not  think that  the ratio  of those q cases can be applied in the case before us where there is no material (1) [1963] 3 S.C.R. 600. (2) [1971] 1 S.C.R. 1037. (3) [A.I.R.] 1984 S.C. 1291 (4) [1983] 2 S.C.R. 936. 295 to support  the contention  that the vacancies have not been filled up by following the prescribed quota.      In  course   of  arguments,  the  petitioners’  counsel contended by  relying on  the feature that a bunch of direct recruits has  been placed  above a  group  of  promotees  by operation of  the  quota  rule  and  that  the  fixation  of seniority was  arbitrary. It  was pointed out by the learned Additional Solicitor  General appearing  for  the  Union  of India and Mr. Shanti Bhushan appearing for other respondents that the  submission  was  misconceived.  In  this  list  of eligible officers,  names of many who had already retired or had been  promoted to  other grades  had not been shown. The working  chart   placed  before   us  reflected  the  actual position. On a reference to the chart, we are satisfied that the quota  rule has  been implemented  while drawing  up the eligibility list  in accordance with Regulation 5(2) (c) (i)

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and (ii).  It was further explained that certain names which were not found in the eligibility list of 1982 appear in the list for  the following  year on account of the fact that on the completion  of six years of service such names have been brought in as those officers became qualified for inclusion.      The next contention raised on behalf of the petitioners was against  note No  2 appearing under rule 12 (5) which is to this effect:      "In case of persons included in the Select List for the      Section Officers’  Grade  ’approved  service’  for  the      purpose of  this rule  shall count from the 1st July of      the year  in  which  the  names  of  the  officers  are      included in  the Select  List, in  the case  of  direct      recruits to the Section Officers’ Grade, p such service      shall count from the 1st July of the year following the      year of  the competitive  examination on the results of      which they  have been  recruited  provided  that  where      there is  a delay  of more  than three  months  in  the      appointment of  any candidate, such delay is not due to      any fault on his part." G      This note  initially appeared  to be somewhat arbitrary but after hearing counsel at length we are inclined to agree with the submission advanced on behalf of the Union of India that  in   the  process  of  direct  recruitment,  there  is considerable delay and though the competitive examination is held in one particular year, by the time the 296 selected officer comes to join the post, more than a year is lost. Therefore,  a rational  view has  been  taken  of  the situation and  for the  computation of length of service the particular provision  has been  made. This  in our  view  is really not  open to  challenge as an arbitrary provision. We may reiterate  that a  very intricate process is involved in giving effect to the scheme and in harmonising the claims of the officers belonging to the different cadres. Mathematical precision cannot  be expected  in a  matter  like  this  and adoption  of  a  test  of  such  accuracy  with  a  view  to ascertaining  whether   Articles  14   and/or  16   of   the Constitution are violated would not be appropriate.      Challenge to  the scheme  in rule  18 in  the matter of fixation of  seniority had been advanced in the case of P.C. Sethi v. Union of India,(1) and was negatived by this Court.      Delay and laches were advanced as contentions on behalf of the Central Government for rejecting the petitions. We do not think  it is  necessary to  go into  that question as we have already  taken that  into consideration  while  dealing with other  contentions, It  is, however,  relevant to point out that of the 11 petitioners as many as 9 had got into the cadre  of   Assistants  as  direct  recruits  and  they  had themselves got  advantage over  promotees who  had put  in a longer period  of service in such cadre. They should not now grudge a  similar advantage  being obtained  by  some  other direct recruits  in the  higher cadre.  After all as we have already said,  in a  case of this type a broader perspective has to  be maintain J and examination cannot be permitted to be as strict as petitioners have asked us to adopt.      In view  of what  we have said, each of these petitions must be  dismissed but we think it appropriate to suggest to the Central  Government to streamline the scheme by a review of the  Rules  and  Regulations  so  that  the  rancour  and heartburning  in   the  officers   may  be  reduced  to  the inevitable minimum  in the matter of implementation. Parties are directed to bear their own costs. A.P.J.                                   Petition dismissed. (1) [1975] 3 S.C.R. 201.

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