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PETITIONER: NARENDRA NATH PANDEY & ORS.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT21/07/1988

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 AIR 1648            1988 SCR  Supl. (1) 574  1988 SCC  (3) 527        JT 1988 (3)   101  1988 SCALE  (2)37

ACT:      Civil Services:  Uttar Pradesh Non-Technical (class Il) Services (Reservation of vacancies for demobilised officers) Rules 1973/U.P.  Non-Technical (class  ll/Group B)  Services (Appointment of Demobilised officers) Rules, 1980-Rules 1, 3 and  6/Rule   5-Demobillsed  officers   from  armed   forces recruited   in    Civil   Service-Seniority-Period   between demobilisation and  recruitment to Civil Service-Computation of.

HEADNOTE:      The appellants  have been  appointed in  the U.P. Civil Service as  direct recruits  on  the  basis  of  competitive examination held  by the  U.P. Service  Commission. They are governed by the U.P. Civil Service (Executive Branch) Rules, 1941. The  respondents were  recruited under  the U.P.  Non- Technical (Class-II)  Services (Reservation of Vacancies for Demobilised officers)  Rules, 1973 and/or U.P. Non-Technical (Class-II/Group ’B’)  Services (Appointment  of  Demobilised officers)  Rules,   1980.   They   were   either   Emergency Commissioned officers or Short Service Commissioned Officers of the  armed forces.  They were  demobilised from the armed forces in  or about  1968. In  order  to  rehabilitate  such persons who  rendered services  to the  country  during  the operation of the emergency when the nation’s security was in peril due  to aggression,  the 1973  Rules were framed under the proviso to Art. 309 of the Constitution of India.      In 1976,  a seniority  list was  prepared  showing  the respondents as  seniors to  the appellants  on the  basis of their service in the armed forces and the gaps between their discharge and recruitment in civil service. Similar list was prepared in  1980 as well. Aggrieved by this, the appellants moved two  writ petitions  before the High Court challenging the validity  of the  1973 Rules as also the 1980 Rules. The High Court  held that  these Rules  were legal and valid and upheld the  validity of  the impugned  seniority list. These two appeals  by special  leave are  against the  High  Court judgment.      On behalf  of the appellants, it was contended that the High 575

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Court’s interpretation  of Rule 6 of the 1973 Rules relating to seniority and pay was in excess of the relief intended to be granted  by the  rule. It  was also  urged  that  when  a candidate who  was in the armed forces joined civil service, the assumption  should be  that he  had  entered  the  civil service at  the second  opportunity  of  competing  for  the recruitment, but  no other period including that between the discharge and  recruitment would  be taken  into account for the purpose of computing his seniority.      The contention  of the  Respondents was that since only ten per  cent of the vacancies were reserved for war service candidates, it was difficult for them to get a chance within a reasonable time after their discharge from war service and it would  be quite  consistent with rules of natural justice to take  into account  the interregnum  between the  date of discharge and the date of recruitment in civil service.      Allowing the appeals, this Court, ^      HELD: 1.1. The High Court was right in holding that the 1973 Rules as also the 1980 Rules are quite legal and valid. However, under  Rule 6  of the  1973 Rules  or Rule 5 of the 1980 Rules,  only a  reasonable period  of three  years  for taking the examination and the time taken for recruitment or posting would be taken into consideration for the purpose of computing seniority and pay. [582D-E]      1.2. Under Rule 6 of the 1973 Rules, the recruitment of a war service candidate will be assumed to have been made in the year in which he had the second opportunity of competing for such  recruitment, the  first  being  on  attaining  the minimum age  to compete.  It does not provide for the period between demobilisation  and recruitment  of  a  war  service candidate  in   the  civil   service.  Nor  does  it  forbid consideration of  such period. It cannot, however, he denied that after  the discharge  from war  service, there  will be some lapse of time for the recruitment of a candidate in the Provincial Civil  Service. There  is a question of competing in the  examination. Though  Rule 6 does not provide for any gap to be taken into consideration, it is apparent that some reasonable period has to be allowed to a candidate to enable him to  avail himself of the opportunity of appearing at the competitive examination  for recruitment  in the  Provincial Civil  Service.   Competitive  examinations   are  generally difficult and  at least two years’ time should be allowed to a candidate,  after his  discharge, for  his preparation for the competitive  examination and  that  will  be  his  first opportunity. The  second opportunity  will arise in the next year, that is, in the third year 576 of his  discharge from  the armed forces. In other words, he should be  allowed three years for competing in the relevant examination for recruitment in the civil service. Apart from the three years, the period of time taken for recruitment or posting will  also  be  taken  into  consideration  for  the purpose  of   computing  the  seniority  of  a  war  service candidate. [580H; 581C-H]      1.3. If, however, a candidate does not avail himself of the opportunity within three years of his discharge from war service or  takes the  examination but becomes unsuccessful, the period  between his discharge and subsequent recruitment will not  be taken into account for the purpose of computing the seniority. [582C]      [This Court  set aside  the judgment  of the High Court relating to  the interpretation of Rule 6 of the 1973 Rules, quashed the  seniority lists  of 1976 and 1980, and directed the State  of U.P.  to prepare the seniority list within six

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months in the light of this judgment.] [582F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 973-74 of 1985.      From the  Judgment and  order dated  15.7.1983  of  the Allahabad High  Court in  Writ Petition  Nos. 3532 of 1979 & 357 of 1981.      Dr. L.M.  Singhvi, K.R.  Nagaraja, R.S.  Hegde  and  C. Mukhopadhyay for the Appellants.      A.D.  Singh,   Mrs.  S.   Dikshit,  A.K.   Gupta,  Raju Ramachandaran and B.S. Chauhan for the Respondents.      Subhash Chandra, Respondent No. 34 in person.      The Judgment of the Court was delivered by      DUTT, J. These two appeals by special leave involve the interpretation of the Uttar Pradesh Non-Technical (Class-II) Services (Reservation of Vacancies for Demobilised officers) Rules, 1973,  hereinafter referred  to as  ’the 1973 Rules’, and the  Uttar Pradesh  Non-Technical  (Class-II/Group  ’B’) Services (Appointment  of Demobilised officers) Rules, 1980, hereinafter referred to as ’the 1980 Rules’, relating to the seniority  of   the   appellants   vis-a-vis   the   private respondents. 577      The  appellants   have  all   been  appointed   in  the Provincial Civil  Service of  the State  of Uttar Pradesh as direct recruits  on the  basis of  competitive  examinations held by  the Uttar  Pradesh Public  Service Commission.  The appointments of  the appellants  were made  under  the  U.P. Civil Service  (Executive Branch)  Rules, 1941  framed under section 241(1)(b)  of the  Government of  India  Act,  1935, hereinafter referred to as ’the Service Rules’.      The respondents  were recruited  under the  1973  Rules and/or the 1980 Rules. The respondents were either Emergency Commissioned officers  or  the  Short  Service  Commissioned officers of  the armed forces of the Union of India and were commissioned on  or  before  November  1,  1962  during  the Indo-Chinese war. They were demobilised from armed forces in or  about   1968.  These  respondents,  therefore,  rendered services  to   the  country  during  the  operation  of  the emergency when  the nation’s  security was  in peril  due to external aggression.  In order  to rehabilitate such persons and to  ensure them  that in civil life, after the cessation of emergency, they were not to suffer for rendering services to the  nation and with a view to putting the respondents at par with  other persons,  the 1973  Rules were framed by the Governor of U.P. in exercise of his powers under the proviso to Article 309 of the Constitution of India.      Rule 1(3)  of the  1973 Rules  provide that  they shall remain in  force for a period of five years from the date of their commencement.  Rule 3,  inter alia,  provides for  the reservation of  ten per  cent of  the permanent vacancies in all  Non-Technical   (Class-II)  Services   to   be   filled substantively  by  direct  recruitment  through  competitive examination in  any year.  Rule 6  relating to seniority and pay, which is important for the purpose of these appeals, is extracted below:           "R.6. Seniority and pay-                (1) Seniority and pay of candidates appointed           against the  vacancies reserved under sub-rule (1)           of rule  3, shall  be determined on the assumption           that they  entered the  service concerned at their           second opportunity,  of competing for recruitment,

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         and they  shall  be  assigned  the  same  year  of           allotment as successful candidates of the relevant           competitive examination:                Provided that  any such candidate who had two           opportunities before  the date  of his joining the           training 578           prior  to   his  commission  whether  he  actually           availed any  A such  opportunity or  not, shall be           assigned the  same year of allotment as successful           candidates of  the first  competitive  examination           held after the said date.                Explanation-The year  of a candidate’s second           opportunity will  be determined by the date of his           birth in  relation to  the prescribed  minimum age           for competing for recruitment to the service.                (2) Seniority  inter se of candidates who are           appointed against  vacancies reserved  under  sub-           rule (1)  of rule  3 and  allotted to a particular           year shall  be determined  according to  the merit           list prepared  by the  Ayog on  the basis  of  the           results of their performance at the examination.                (3)   All    candidates   appointed   against           vacancies reserved  under sub-rule  (1) of  rule 3           and allotted  to any  particular year  shall  rank           below the  candidates who  were successful  at the           competitive examination  held for  recruitment  to           the service in that year.                (4) The  pay of  candidates appointed against           vacancies referred  to in  sub-rule (3)  of rule 3           shall also  be determined  in the  same manner  as           indicated in  sub-rule (1)  of this rule but their           seniority shall  be determined  in accordance with           the foregoing  sub-rules only  if and at the point           of time  when  they  are  appointed  substantively           against permanent vacancies."      For the purpose of seniority and pay, rule 6 takes into account the  period of  war service  rendered by a candidate who,   after   his   demobilisation   from   such   service, successfully competes  in the  relevant examination which is in  the   present  case,   the  Provincial   Civil   Service Examination.  Under   Rule  6,  when  such  a  candidate  is recruited after  his successfully  competing in the relevant examination, it  will be assumed that he had entered service with retrospective  effect from the year in which he had the second opportunity  of taking  the relevant  examination for his recruitment,  which he  could not take on account of his having joined  the service  of the armed forces of the Union of India.      So far as the actual period rendered by the respondents in the 579 armed forces  during the emergency is concerned, there is no dispute that  such period  shall be taken into consideration for the  purpose of  computing the  seniority and  pay.  The grievance of the appellants is that although there were long gaps between  the dates  of demobilisation  and the dates of recruitment of  the respondents,  the State of Uttar Pradesh had, in  computing the  seniority of  the respondents, taken into consideration  not only  the period  during  which  the respondents were  in the  services of  the armed forces, but also such  long gaps.  It is  pointed out  by the appellants that in  the cases  of one or two respondents, the gaps were even of  about 11  years and  these long gaps had been taken into account  in computing  their seniority.  As a result of

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such computation,  the respondents  after their appointments were placed  above the  appellants, although  the appellants were recruited  to the  Provincial Civil  Service under  the Service Rules long before the respondents were recruited. If such gaps  are excluded  from consideration,  the appellants will be seniors to the respondents.      It is  also alleged  by the  appellants that several of the respondents,  after coming  back from  the army,  joined various services,  both Government and private services, and had spent  3 to  10 years  or more  in those services before they were recruited under the 1973 Rules or 1980 Rules.      In 1976,  a seniority  list was  prepared  showing  the respondents seniors  to the  appellants on  the basis of the period of  their service  in the  armed forces  and the gaps between their  discharge and  recruitment. In  1980 also,  a seniority list  was prepared  in  like  manner  showing  the appellants as juniors to the respondents.      Being  aggrieved   by  the  1976  seniority  list,  the appellants moved two writ petitions under Article 226 of the Constitution before  the Allahabad  High Court,  inter alia, challenging the  validity of  the 1973  Rules and  also 1980 Rules. The  High  Court  overruled  the  contention  of  the appellants that  the 1973  Rules and 1980 Rules were invalid being violative  of Article  14 of the Constitution of India and held  that both  these Rules  were legal  and valid. It, however, took  the view  that under rule 6 of the 1973 Rules or rule  5 of  1980 Rules,  which are verbatim the same, the period during  which the  respondents had  no employment  or were employed  elsewhere till  recruitment in the Provincial Civil Service  after competing  in the relevant examination, will be  taken into  account along  with the  period  during which they  were in the services of the armed forces for the purpose of computing their seniority in the Provincial Civil Service. Accordingly, the High Court upheld the vali- 580 dity of the impugned seniority list. Hence this appeal.      It is  urged by  Dr. Singhvi, learned Counsel appearing on behalf  of the  appellants, that the interpretation given by the  High Court  of rule  6 of the 1973 Rules relating to seniority and  pay is in excess of the relief intended to be granted by that rule. It is submitted that rule 6 was framed for the  purpose of  taking into consideration the period of service in  the armed forces in computing the seniority of a candidate appointed  in the  Provincial Civil  Service after competing in  the relevant  examination, so that he does not suffer because  of joining the armed forces. Rule 6 does not provide for  taking into  consideration the  gap between the date of  demobilisation of a candidate and the date on which he is  appointed  in  the  Provincial  Civil  Service  after competing in the relevant examination. If such gaps are also taken into consideration, it would be doing injustice to the appellants  who   have  been   appointed  long   before  the respondents. Accordingly,  Dr. Singhvi  submits that  when a candidate who  was in  the armed  forces of the Union joined the Provincial  Civil Service  after his  discharge from the armed forces,  it would  be assumed  that he had entered the Provincial  Civil  Service  at  the  second  opportunity  of competing for the recruitment, but no other period including that between  the discharge  and recruitment  will be  taken into account  for the  purpose of computing the seniority of such a candidate.      on the  other hand,  it is  submitted by  Mr. Anil  Dev Singh and  Mr. Gupta,  learned Counsel  for the respondents, and Mr.  Subhash Chandra,  respondent No.  34, appearing  in person, that  rule 6  does not prohibit, either expressly or

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by necessary  implication, the  taking into  account of  the period  between   demobilisation  and   recruitment  in  the Provincial Civil  Service. It is submitted that not only the length of  the war  service but  also such  gaps  should  be considered for the purpose of computation of seniority. They submit that  as only  ten per  cent of  the  vacancies  were reserved for  war service  candidates, it  was difficult for such candidates  to get  a chance  within a  reasonable time after their discharge from war service and it would be quite consistent with  rules  of  natural  justice  to  take  into account the  interregnum between  the date  of discharge and the date of recruitment.       Rule  6 only  provides that  after the  discharge of a candidate  from   the  armed   forces  and   his  subsequent appointment in  civil service  on the  basis of  competitive examination, it  will be  assumed that  he  had  joined  the service at  the second  opportunity  of  competing  for  the recruitment. The  second opportunity  has been  explained in the Expla- 581 nation to rule 6. It provides that the year of a candidate’s second opportunity  will be  determined by  the date  of his birth  in   relation  to  the  prescribed  minimum  age  for competing for  recruitment to  the service.  For example, if the minimum  age for  taking the competitive examination for recruitment  is   21  years,  the  first  opportunity  of  a candidate will  be in  the year  he attains that age and the second opportunity will be in the next year, that is, at the age of  22 years.  Under rule  6, the  recruitment of  a war service candidate  will be  assumed to have been made in the year in which he had the second opportunity of competing for such recruitment.  In other  words, the  seniority of such a candidate will  be computed  on the basis that he had joined the civil  service in  the year of his second opportunity of competing for the recruitment.      It is  true that rule 6 does not provide for the period between demobilisation  and recruitment  of  a  war  service candidate  in   the  civil   service.  Nor  does  it  forbid consideration of  such period. It cannot, however, be deemed that after  the discharge  from war  service, there  will be some lapse of time for the recruitment of a candidate in the Provincial Civil  Service. Immediately  after discharge, one cannot  get   himself  recruited  in  the  Provincial  Civil Service.  There   is  a   question  of   competing  in   the examination. Rule 6 does not provide for any gap to be taken into consideration,  yet it is apparent that some reasonable period has  to be allowed to a candidate so as to enable him to avail  himself of  the opportunity  of appearing  at  the competitive  examination   for  his   recruitment   in   the Provincial Civil  Service. It  cannot be  gainsaid  that  to compete  in   the  examination,  a  candidate  has  to  make preparation for that. Competitive examinations are generally difficult and,  in our  opinion, at  least two  years’  time should be  allowed to  a candidate, after his discharge, for his preparation  for the  competitive examination  and  that will be  his first  opportunity. The second opportunity will arise in  the next  year, that  is, in the third year of his discharge from  the armed  forces. In other words, he should be  allowed  three  years  for  competing  in  the  relevant examination for recruitment in the civil service.      Even after  he becomes  successful, he is not recruited immediately.  There  is  the  question  of  availability  of vacancies and posting. It is common knowledge that some time is taken  for posting.  On a  proper construction of rule 6, the period  spent  by  a  candidate  for  competing  in  the

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examination which,  in our  opinion, will  not be  more than three  years,   and  the   period  of  time  taken  for  his recruitment or posting will also be taken into consideration for the purpose of computing the 582 seniority of  a war  service candidate. Thus, if a candidate is discharged  in the  year 1968,  he should  be given three years’ time to avail himself of the opportunity of competing in  the  examination.  Suppose,  he  is  successful  in  the examination held in 1971 and posted in 1973. In view of rule 6, he  would be deemed to have entered service at the second opportunity of  competing for  recruitment  and  the  entire period from  the date  of assumed entry in the service up to his recruitment  in 1973 shall be taken into account for the purpose of  computing seniority  and  pay.  If,  however,  a candidate does  not avail  himself of the opportunity within three years  of his  discharge from war service or takes the examination but becomes unsuccessful, the period between his discharge and  subsequent recruitment will not be taken into account for  the purpose  of computing the seniority. Rule 6 should be  given a reasonable interpretation. We do not find any reason  to interpret rule 6 in a way which will be doing injustice to  the appellants  who have  been recruited under the  Service  rules  after  competing  successfully  in  the examination.      We agree  with the  High Court  that the  1973 Rules as also the  1980 Rules  are quite  legal and  valid.  We  are, however, of  the view that under rule 6 of the 1973 Rules or rule 5  of the  1980 Rules only a reasonable period, namely, the  period   of  three   years,  required  for  taking  the examination and  the time  taken for recruitment or posting, as discussed  above, along  with the  period of war service, but no  other period,  will be  taken into consideration for the purpose of computing the seniority and pay. The impugned seniority list  prepared in  1976  and  also  that  prepared subsequently in  the year  1980 cannot be sustained, as they have been  prepared by  taking into consideration the entire period between the discharge and the recruitment without any reservation for computing the seniority.      For the reasons aforesaid, we set aside the judgment of the High  Court relating  to the interpretation of rule 6 of the 1973  Rules. The  impugned seniority  lists of  1976 and 1980 are  also  quashed.  The  State  of  Uttar  Pradesh  is directed to  prepare the  seniority list in the light of the observations made  hereinabove within a period of six months from date.      The appeals  are allowed to the extent indicated above. There will,  however, be  no order  as to costs in either of these appeals. G.N.                                   Appeals allowed. 583