http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: S. L. SACHDEV & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT28/10/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) GUPTA, A.C.

CITATION:  1981 AIR  411            1981 SCR  (1) 971  1980 SCC  (4) 562  CITATOR INFO :  D          1989 SC1624  (11)

ACT:      Constitution of  India, Articles  16, 309  and 32 & The Indian Posts  & Telegraphs  (Clerks in  Savings Bank Control and Internal  Check Organisation)  Recruitment  Rules  1969, Rule 4 and Item 3, Column 10 of Schedule-Provision that UDCs drawn from  Audit offices  being eligible  for promotion  to selection Grade  on basis  of 15%  of Posts  Head Clerks  on basis of 20% of posts held by them in SBCO-ICO-Validity of.      Director-General in  exercise of  powers-Rules made  by the president  under Article 309-Whether can issue direction which is inconsistent with the recruitment rules.

HEADNOTE:      The  Government  of  India  created  the  Savings  Bank Control Organisation  and Savings  Bank  Check  Organisation (SBCO-ICO). Amongst  those  who  were  invited  to  opt  for service in  the said  organisation were  UDCs in  the  Audit Offices, LDCs  who had  qualified for  promotion to  the UDC cadre in  the Audit Offices, employees under the Post Master General and  those from amongst the Time Scale Clerks in the P & T Accounts Organisation.      By a letter dated May 15, 1964 the P & T Board informed all the  Heads of  the Circles  that  the  sanction  of  the President of  India was  obtained to  the conversion  of 10% posts in  the cadre  of UDCs  in the SBCO-ICO into Selection Grade UDCs.  But, by his letter dated May 29, 1965 addressed to all  Heads of P & T Circles, the Director-General, Post & Telegraphs modified  the policy of reservation of 10% of the post in  the  cadre  of  UDCs  in  the  Selection  Grade  by directing, that  the total  number of  Selection Grade Posts available for  the UDCs  who came  from  the  Audit  offices should be  10 of the total number Audit officer UDCs working in any particular circle of the Organisation.      On January  22, 1968,  the Indian  Posts  &  Telegraphs (Clerks  in   Savings  Bank   Control  and   Internal  Check Organisation) Recruitment Rules, 1969 were framed regulating the recruitment  to the cadre of UDCs and other posts in the SBCO-ICO. Col.  10 of  Item 3  of the  Schedule to the Rules provides that the appointment to the Selection Grade will be made from  amongst UDCs  with 10  years of  service in  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

grade in  case of  Audit Office  Staff, or  with five years’ service in  that grade  in case  of other  UDCs. Later,  the Supervisory Cadre in the SBCO-ICO was recognised. Creating a cadre of  Head Clerks  in place of the Selection Grade posts and fixing  the number  of posts in the said cadre at 20% of the posts  of UDCs.  By  letter  dated  May  16,  1965,  the Director General  however, clarified  the position by saying that "under  the new  scheme the  audit office UDCs will get the post  of Head  Clerks to  the extent  of  20%  of  their strength instead  of 10%  as at present. The remaining posts of Head Clerks will go to the non-audit UDCs". 972      The two  petitioners who  belonged to  the P  & T Audit Offices and  had qualified  the departmental examination for promotion  as  UDCs,  joined  the  SBCO-ICO  as  UDCs.  They challenged the  classification of  UDCs for  the purposes of promotion to  the Selection  Grade/Head Clerks  cadre on the basis of  the sources  from which  they were  drawn and  the limiting of  the promotional  posts available to them to 10% in the  case of  Selection Grade post and 20% in the case of Head Clerk  posts thereby  resulting in  promotion of  their Juniors who  had joined  the organisation  from the  P  &  T Offices,  as  discriminatory,  arbitrary  and  unreasonable. According to  them the  only criterion  for  promotion  from amongst the  UDCs in  the SBCO-ICO  could be  the length  of service in  the cadre  of  UDCs,  subject  to  fitness.  The provision in  Column 10  of Item  3 of  the Schedule  to the Recruitment Rules of 1969 was also challenged.      The  respondents   argued  that   persons  drawn   from different sources  were not integrated into a common service and therefore  different rules of promotion could be applied to the  two classes  and that the directive of the Director- General was  aimed at  further and  better implementation of the Recruitment Rules.      Partly allowing the petition. ^      HELD 1.  The Directions  issued by  Respondent 2 by his letters dated  May 16, 1975 and May 29, 1965 that UDCs drawn from the Audit offices will be eligible for promotion to the Selection Grade  on the  basis of 10% of the posts or to the Head Clerks  cadre on the basis of 20% of the posts, held by them in SBCO-ICO are quashed. [979 E-F]      The petitioners  and the  other UDCs  will be  entitled equality  to  promotional  opportunities.  They  and  others similarly  situated   as  them  shall  be  promoted  to  the Selection Grade/Head Clerks Cadre with effect from the dates on which they were due for promotion by applying the test of seniority-cum-fitness. [979 F-G]      2. The policy adopted by respondent 2 is discriminatory and unreasonable. Apart from the injustice in specific cases where UDCs  drawn from  the Audit  Offices are  attached  to comparatively smaller  circles, the  classification made for the purpose  of determining  the  promotional  opportunities seems unreasonable  and arbitrary.  Since under the impugned directions, the number of Selection Grade/Head Clerks has to be 10%  of the  number of UDCs drawn from the Audit Offices, no promotional  opportunities at  all would  be available to them in  certain circles  in which  less than  10 UDCs drawn from the  Audit Offices  are working.  These persons,  for a purely fortuitous  reason.  will  be  denied  for  ever  all promotional opportunities.  That seems  wholly indefensible. [976G, 977B-F]      3. The  duties, functions  and responsibilities  of all the UDCs  being identical,  there is no reason why different tests should  be prescribed for determining their respective

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

promotional opportunities  and that  too solely in reference to the  source from  which  they  are  drawn.  The  test  of educational   qualifications    can   conceivably    be   an intelligible differentia  bearing nexus  with the  object of ensuring greater  efficiency in  public services. But once a cadre is  formed by  recruiting persons drawn from different departments of  the Government,  there would  normally be no justification for  discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances.   The    impugned    directives    are    therefore unconstitutional. [977G-H, 978A-B] 973      Balakrishnan v. Comptroller & Auditor General of India, 1976 Kerala Law  Times 401 & C. K. Krishnamurthy v. Director General P & T 1978 Karnataka Law Journal 355, affirmed.      V. Subramanyam  v. The  Director General  of Posts  and Telegraphs, New  Delhi WP  3935/75 decided  on 18th November 1978 &  V. S.  Rajagopalan v. Post Master General WP 3796/75 decided on 24th November 1976, reversed.      4.No one  can issue a direction which, in substance and effect, amounts  to an  amendment of  the Rules  made by the President under  Article 309.  The Recruitment Rules of 1969 do not  provide for the kind of classification which is made by the  Director General  by his  letters to  the  Heads  of respective  Circles  of  the  new  organisation.  They  only provide for classification on the basis of length of service in the  new organisation. Any directive which goes beyond it and superimposes a new criterion on the rules will be bad as lacking in jurisdiction. [978B-E]      5. The  distinction made  between the  two  classes  of UDCs, in  the context of the length of their service for the purposes of  promotion is not arbitrary or unreasonable. The staff of  the Audit Offices which was engaged in the Savings Bank’s work  might well  have faced retrenchment. Instead of subjecting them to that hardship, they were given the option of joining the new organisation. Experience-wise also, there would appear  to be fair justification for requiring them to put in  longer service  in the  new organisation before they are  eligible   for  promotion  to  the  higher  grade.  The provision in Col.10 of Item 3 of Schedule to the Recruitment Rules 1969 is therefore upheld. [979C-E]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 267 of 1979            (Under Article 32 of the Constitution)      E. X. Joseph and N. S. Das Bahl for the Petitioners.      L. N. Sinha, Att. Genl. of India and Hardayal Hardy for RR 1 to 4.      S. L. Aneja for RR 5-10 and 13.      The Judgment of the Court was delivered by      CHANDRACHUD,  C.  J.-This  is  a  Writ  Petition  under Article 32  of the Constitution by which the petitioners ask for an  appropriate writ  quashing the  orders dated May 29, 1965 and  May 16,  1975 issued by Respondent 2, the Director General of Posts and Telegraphs, New Delhi, and for striking down the  provisions in  Col. 10  of  the  Schedule  to  the Recruitment Rules, 1969.      Petitioner 1  joined the  Posts  and  Telegraphs  Audit Office of  the Government of India at Delhi on July 31, 1956 as a  Lower Division  Clerk. In  1961 he  qualified  in  the departmental examination  for promotion as an Upper Division Clerk. On  May 4,  1962 he  joined the  Savings Bank Control Organisation and Savings Bank Internal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

974 Check Organisation  (SBCO-ICO), as  an Upper Division Clerk. Petitioner 2  joined the  P and  T Audit Office at Madras on June 3,  1950 as  a Lower  Division Clerk.  On  passing  the departmental  examination   he  was  promoted  as  an  Upper Division Clerk  on September 10, 1958. He joined SBCO-ICO on April 1,  1963 in  the same capacity. He is due to retire on October 31, 1980.      Respondent 1  to the  Writ Petition  is  the  Union  of India, Respondent  2 is  the Director  General of  P & T and Respondents 3  and 4  are the  Post Master  Generals of  the Delhi  Circle   and  the  Tamil  Nadu  Circle  respectively. Respondents 5  to 13,  though junior  to Petitioner 1 in the Delhi  Circle,   have  been   promoted  as  Selection  Grade Clerks/Head Clerks in supersession of him. Respondents 14 to 47, though  junior to Petitioner 2 in the Tamil Nadu Circle, have been  promoted as Selection Grade Clerks/Head Clerks in supersession of  him. The  petitioners, in  effect challenge their  supersession   to  the   post  of   Selection   Grade Clerks/Head Clerks.      Until the  year 1961, the Savings Bank work of the post office was  under the  supervision and control of the Indian Audit and  Accounts Department  of which the Comptroller and Auditor General  of India  is the  Head. The branches of the Indian Audit  and Accounts Department doing the Savings Bank work and the work of auditing P & T accounts were called P & T Audit Offices.      The Government of India having decided that the Savings Bank work  should be taken over by the P & T Department, the audit offices were relieved of that responsibility by stages during the  years 1961 to 1964 and a new Organisation called the Savings  Bank  Control  Organisation  and  Savings  Bank Internal Check Organisation (SBCO-ICO) was created on May 4, 1962. With  the setting  up of that organisation, volunteers were given  the option of joining it. Amongst those who were thus invited to opt for service in the new Organisation were Upper Division  Clerks in  the Audit Offices, Lower Division Clerks who had qualified for promotion to the Upper Division Clerks’ cadre in the audit offices, employees under the Post Master General  and lastly those from amongst the time-scale clerks  in  the  P  &  T  Accounts  Organisation.  Employees belonging to the aforesaid departments who opted for service in the  new Organisation  were transferred  thereto  in  the interest of public service.      In the audit department, 10% of the sanctioned strength of the  posts of Upper Division Clerks were in the Selection Grade and  promotion to those posts was made on the basis of seniority-cum fitness.  By a letter dated May 15, 1964 the P  & T Board informed  all  the  Heads  of  Circles  that  the sanction of the President was obtained 975 to the  conversion of  10% posts in the cadre of UDCs in the SBCO-ICO into  Selection Grade  UDCs. But,  by the  impugned letter No. 56/4/65-SPB-I dated May 29, 1965 addressed to all Heads of  P &  T Circles,  the Director  General, Posts  and Telegraphs modified  the policy of reservation of 10% of the posts in  the cadre  of  UDCs  in  the  Selection  Grade  by directing, that  the total  number of  Selection Grade posts available for  the UDCs  who came  from  the  Audit  Offices should be  10% of  the total  number of  Audit  office  UDCs working in  any particular Circle of the organisation. Thus, whereas, under  the original intendment, if the total number of posts  in the  cadre of  UDCs in the new Organisation was 100, 10  posts were available in the Selection Grade for all the UDCs, under the new policy if, out of the total strength

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

of 100, 40 posts were occupied by UDCs who had come from the Audit  Offices,   they  would,  as  amongst  themselves,  be entitled to  four posts  only in  the Selection Grade. Under the new  dispensation, the  test is how many UDCs from Audit Offices are  working in  the Circle,  not what  is the total strength of the UDC cadre in the Circle.      On January  22, 1968, the President of India, acting in exercise  of   his  powers   under  Article   309   of   the Constitution, framed rules regulating the recruitment to the cadre of UDCs and other posts in the SBCO-ICO. The rules are called "The  Indian Posts  & Telegraphs  (Clerks in  Savings Bank Control  and Internal  Check Organisation)  Recruitment Rules, 1969".  Brevity is  obviously indicated  and, for its sake, we will refer to these rules as the Recruitment Rules, 1969. Rule  4 provides that the method of recruitment to the various posts,  the age  limit, qualifications etc. shall be as specified  in Columns  4 to 12 of the Schedule provide to the Rules.  Column 4  of the Schedule provides that the post of Selection  Grade UDCs  is a  non-Selection post. Column 9 provides that  recruitment of  Selection Grade  UDCs will be exclusively  by  promotion.  Column  10  provides  that  the appointment to the Selection Grade will be made from amongst Upper Division Clerks with 10 years of service in that grade in case of Audit office Staff, or with five years service in that grade  in case  of other Upper Division Clerks. This is one of  the provisions  of the  Rules which is challenged as being discriminatory.      On the  basis of  the recommendations made by the Third Pay Commission,  the Supervisory  Cadre in  the SBCO-ICO was reorganised with  a view  to  providing  better  promotional avenues to  the  members  of  the  staff.  Accordingly,  the Director Gerneral  issued instructions  by his  letter dated April 10,  1975 that  the existing provision relating to the Selection Grade  Posts will be replaced by the creation of a cadre of  Head Clerks  and that  the number  of posts in the said 976 cadre of  Head Clerks  will be  fixed at  20 per cent of the posts of  UDCs. By  another letter  dated May  16, 1975  the Director General clarified this position by saying:           "Under the  new scheme  the audit office UDCs will      get the  posts of  Head Clerks  to the extent of 20% of      their strength  instead  of  10%  as  at  present.  The      remaining posts of Head Clerks will go to the non-audit      UDCs."      This is the other of the two impugned letters.      The petitioners  contend that the classification of the Upper Division  Clerks for  the purpose  of promotion to the Selection Grade/Head  Clerks Cadre,  on  the  basis  of  the sources from  which they  are drawn  and the limiting of the promotional posts  available to  them to  10% in the case of Selection Grade  Posts and  20% in  the case of the posts of the Head Clerks has resulted in stagnation of the UDCs., who joined the  new organisation  from the  Audit  Offices.  The petitioners’  grievance   is  that  UDCs.  who  joined  that organisation from  the P  & T offices and who were junior to them in  terms of  the length of service in the U.D.C. cadre have been  already  promoted  to  the  Selection  Grade/Head Clerks cadre.  This classification  of the  U.D.Cs.  of  the SBCO-ICO into two groups for the purpose of promotion on the basis of the sources from which they are drawn is challenged by  the   petitioners  as   discriminatory,  arbitrary   and unreasonable. According  to them, since the promotional post is a  non-selection post,  the only  criterion for promotion from amongst  the U.D.Cs.  in the SBCO-ICO can be the length

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

of service in the cadre of U.D.Cs., subject to fitness.      Shri E.  X.  Joseph,  who  appears  on  behalf  of  the petitioners has  made a  very neat  argument, focussing with the help  of telling  illustrations the  injustice which has been  done   to  the  petitioners  and  to  those  similarly situated. The  learned Attorney  General who appears for the Union of  India and  Shri Aneja  who appears for the U.D.Cs. drawn from  the other  departments, have  attempted to  meet Shri Joseph’s  argument but we are left in no doubt that the policy adopted  by the  Union of India is discriminatory and unreasonable. Though  it appears prima facie that U.D.Cs. in SBCO-ICO were drawn from four different sources, the sources are really  two and  not four.  U.D.Cs. in that organisation were  appointed  from  amongst  those  who  were  previously serving in  the Audit  Offices and secondly from amongst the other employees  of the  P &  T Department.  The recruitment rules of  1969 make  a classification amongst the U.D.Cs. by providing that in so far as the U.D.Cs. drawn from the 977 Audit Offices  are  concerned  they  will  be  eligible  for promotion to  the Selection  Grade/Head Clerks  Cadre  after they put  in a  service of 10 years in the new organisation. In regard  to the U.D.Cs. drawn from the P and T Department, the rules  provide that  they  will  be  eligible  for  such promotion on completing five years’ service only. Bearing in mind that the posts in the Selection Grade/Head Clerks Cadre are non-selection  posts to  which appointments  are made by the test  of seniority-cum-fitness,  that  is  the  farthest limit to which classification of the U.D.Cs. for the purpose of promotion could be carried.      It  is   difficult  to  appreciate  the  logic  or  the principle behind  the direction  that  the  Selection  Grade Posts or the posts of Head Clerks which will be available to the U.D.Cs.  drawn from the Audit offices will be determined on the basis of the existing strength, at any given time, of such Clerks  in the  particular  circle.  Since,  under  the impugned  directions,   the  number   of   Selection   Grade Posts/Head Clerks  has to  be 10%  of the  number of U.D.Cs. drawn from  the Audit  Offices, no promotional opportunities at all will be available to them in certain circles in which less than  10 U.D.Cs.  drawn  from  the  Audit  Offices  are working. It  is indisputable that, according to the impugned directive, there  have to be at least ten persons drawn from the Audit  Offices in  a Circle,  in order that at least one promotional post  may  become  available  to  them.  We  are informed, which  again is  not disputed,  that in some small Circles, less  than 10  U.D.Cs. drawn from the Audit Offices are working  in the  new organisation.  These persons, for a purely fortuitous  reason,  will  be  denied  for  ever  all promotional  opportunities.   That  seems   to   us   wholly indefensible.      Apart  from  the  injustice  in  specific  cases  where U.D.Cs.  drawn  from  the  Audit  Offices  are  attached  to comparatively smaller  Circles, the  classification made for the purpose  of determining  the  promotional  opportunities seems to  us unreasonable  and arbitrary. It is contended by the  learned   Attorney  General  that  persons  drawn  from different sources  were not integrated into a common service in  the  instant  case  and  therefore  different  rules  of promotion can  be applied  to the two classes. We are unable to  accept   this  contention.  The  duties,  functions  and responsibilities of  all the U.D.Cs. in the new organisation are identical.  They are all in the same cadre and they draw the same  pay in the same grade. There is no reason then why different tests  should be  prescribed for determining their

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

respective promotional opportunities, and that too solely in reference to  the source from which they are drawn. The test of  educational   qualifications  can   conceivable  be   an intelligible differentia bearing nexus 978 with the  object of  ensuring greater  efficiency in  public services. But  once a  cadre is formed by recruiting persons drawn from  different departments  of the  Government, there would  normally   be  no  justification  for  discriminating between them  by subjecting  one class to more onerous terms in  the   matter  of   promotional  chances.   The  impugned directives are therefore unconstitutional.      Apart  from   this  consideration,  we  are  unable  to understand  how   the  Director   General  could  issue  any directive which  is inconsistent  with the Recruitment Rules of 1969  framed by  the President  in the  exercise  of  his powers under Article 309 of the Constitution. Those rules do not provide  for the kind of classification which is made by the  Director  General  by  his  letters  to  the  Heads  of respective Circles  of  the  new  organisation.  It  may  be recalled that  the Recruitment  Rules  only  provide  for  a classification on  the basis of the length of service in the new organisation.  Any directive  which goes  beyond it  and superimposes a  new criterion  on the  Rules will  be bad as lacking in jurisdiction. No one can issue a direction which, in substance  and effect,  amounts to  an amendment  of  the Rules made  by the  President under  Article  309.  That  is elementary. We  are unable  to accept  the learned  Attorney General’s submission  that the  directive  of  the  Director General is aimed at further and better implementation of the Recruitment Rules.  Clearly, it  introduces an  amendment to the Rules  by prescribing  one  more  test  for  determining whether U.D.Cs.  drawn from  the Audit  Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.      The High Court of Kerala in Balakrishnan v. Comptroller  & Auditor General of  India and the High Court of Karnataka in Krishnamurthy C.K. v. Director General, P & T have struck down the  impugned directions issued by the Director General P &  T on  the  ground  that  they  are  discriminatory  and therefore unconstitutional.  These decisions  of the  Kerala and the  Karnataka High  Courts are  correct. In fact, it is significant that  the Union of India did not file any appeal against those decisions and has acquiesced in them. The High Court of  Andhra Pradesh  in V.  Subramanyam v. The Director General of  Posts and  Telegraphs, New  Delhi and  the  High Court of  Madras in V. S. Rajagopalan v. post Master General seem to  have rejected  the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no 979 discrimination was  involved in  fixing separate  quotas for the purpose  of promotion between the U.D.Cs. drawn from the Audit  Offices  and  the  other  U.D.Cs.  With  respect,  we consider the  decisions of the High Courts of Andhra Pradesh and Madras as incorrect.      The petitioners  have also  challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs. drawn from Audit Offices must put  in 10  years of  service for acquiring eligibility for  promotion   whereas  other  U.D.Cs.  are  eligible  for promotion after  putting in  5 years’  service. We  are  not inclined to  entertain that  challenge  since  the  impugned provision has  been in force since 1969 and it was not until the filing  of this  petition in 1979 that any objection was taken to  its legality.  Besides, we are of the opinion that

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

considering the  history leading to the formation of the new organisation, SBCO-ICO, the distinction made between the two classes of  U.D.Cs. in  the context  of the  length of their service for  the purposes  of promotion  is not arbitrary or unreasonable. The  staff of  the  Audit  Offices  which  was engaged in  the Savings  Bank’s work  might well  have faced retrenchment. Instead  of subjecting  them to that hardship, they were  given the option of joining the new organisation. Experience-wise  also,   there  would   appear  to  be  fair justification for requiring them to put in longer service in the new  organisation before they are eligible for promotion to the  higher grade.  That challenge  has therefore  to  be repelled.      In the  result, we  allow the  writ petition partly and quash the  directions issued  by respondent 2 by his letters of May  16, 1975  and May 29,1965 to the effect that U.D.Cs. drawn from  the Audit Offices will be eligible for promotion to the  Selection Grade  on the  basis of 10 per cent of the posts held by them or to the Head Clerks’ Cadre on the basis of 20  per cent  of the posts held by them in SBCO-ICO. They and the  other U.D.Cs.  will accordingly be entitled equally to   promotional   opportunities.   We   direct   that   the petitioners, and others similarly situated as them, shall be promoted to  the Selection  Grade/ Head  Clerks  Cadre  with effect from  the dates on which they were due for promotion, by applying the test of seniority-cum-fitness. Since we have upheld the  provision in Column 10 of item 3 of the Schedule to the  Recruitment Rules,  1969, the  petitioners will have become eligible  for promotion  after completing  10  years’ service in  SBCO-ICO. Since  the demotion of the respondents or any  of them  is likely to lead to undue hardship to them and to  some administrative  confusion, the  Government  may create supernumerary  posts to  which  the  petitioners  and others similarly  situated as  them, may be promoted. We are informed that consequent upon the judgments of the High 980 Courts of Kerala and Karnataka, the Government has adopted a similar course in the Kerala and Karnataka Circles.      The Writ Petition thus succeeds partly. The petitioners will be  entitled to  their costs from the first respondent, the Union of India. NKA                                 Petition partly allowed. 981