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PETITIONER: SOM RAJ AND ORS. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA AND ORS. ETC.

DATE OF JUDGMENT23/02/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MISRA RANGNATH PUNCHHI, M.M.

CITATION:  1990 AIR 1176            1990 SCR  (1) 535  1990 SCC  (2) 653        JT 1990 (1)   286  1990 SCALE  (1)284  CITATOR INFO :  R          1990 SC1402  (29)

ACT:     Constitution of India, 1950: Articles 14 and 16  Service Law-Punjab Subordinate Agricultural Service--Directorates of Agriculture  --Subordinate  Offices--Employees   non-mainte- nance  of common seniority--Held not arbitrary.     Civil Services--Punjab Subordinate Agricultural  Service Rules, 1933: Rules 3, 4, 7, 9, 10--Appendix--Sections 6  and 7--Directorates  of Agriculture  (Head  Office)--Subordinate Offices--Ministerial service-Employees--Whether entitled for common seniority.     Administrative                            Law--Executive authority--Discretion--Must be guided by law. Rule  of  Law----Absence  of arbitrary power  is  the  first postulate.     Service  Law--Selection list--Employer has no power  and discretion to pick and choose candidates--Appointment should be in order of merit.     ’Cadre’--Government  can constitute different cadres  in any  particular  service--Head  Office--Subordinate  office- maintenance of common cadre not necessary.

HEADNOTE:     The  appellants belonging to the ministerial service  in the  subordinate offices of the Directorates of  Agriculture of the States of Punjab and Haryana filed writ petitions  in the  Punjab and Haryana High Court seeking a direction  that subordinate  offices and the Directorates should be  treated as one unit and common seniority of all the employees should be maintained. The High Court dismissed the petitions. Hence these appeals by special leave.     In  these appeals it was contended that  the  appellants are entitled to common seniority with their counterparts  in the  Directorates  because  their  service  conditions,  pay scales and qualifications were same. In 536 order  to  show similarity with their  counterparts  in  the Directorates  it was also pointed out that though  a  common selection was made for Directorates and subordinate  offices

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yet  the appointing authority picked up some candidates  out of  the select list and appointed them in  the  Directorates thereby  deviating from the order of merit prepared  by  the Selection Board. Dismissing the appeals, this Court,     HELD:  1.  The Punjab Subordinate  Agricultural  Service Rules 1933 themselves made a distinction between the persons appointed in the Directorate and the Subordinate Offices  as separate  cadres and the subordinate cadre in some cases  is the  feeder  cadre  for promotion to the post  in  the  Head Office.  In  this  view by no stretch  of  imagination,  the appellants can be considered to be equally placed for treat- ing  them  at par with the Directorate employees  for  being treated  as  being in a common cadre.  There  is  reasonable nexus to differentiate the two cadres. Therefore, the  clas- sification  can not be said to be arbitrary violating  Arti- cles 14 and 16 of the Constitution. [543A-B]     1.1 The fact that the office of the Directorate and  the subordinate offices have been compendiously shown in section 6  of  the Appendix to Rules does not by  itself  mean  that office of the Directorate and Subordinate Offices are treat- ed under the rules as one unit or at par. [542A]     2. It is open to the Government to constitute  different cadres in any particular service as it may choose  according to its administrative convenience and expediency. [541E]     2.1 The office of the Director is the apex office  obvi- ously to control and oversee the functioning of the subordi- nate  offices  and the other allied  departments  under  his control  monitoring the implementation of  the  Government’s agricultural programmes. It may not be necessary to maintain a  common cadre of the employees of the Directorate and  the Subordinate  offices. Each cadre is a separate service or  a part of the service sanctioned for administrative  expedien- cy.  Therefore,  each may be a separate unit and  the  posts allocated  to  the  cadre may  be  permanent  or  temporary. [541F-G]     2.2  Accordingly the appellants are not entitled  to  be treated at par with the employees working in the  respective Directorates  for  giving direction to  the  respondents  to maintain  common  seniority  between the  employees  of  the Directorate and Subordinate Offices. [543D] 537     3.  Normally  the order of appointment would be  in  the order  of merit of candidates from the list and must  be  in accordance  with rules. The exercise of power should not  be arbitrary.  The  absence  of arbitrary power  is  the  first postulate of rule of law upon which our whole constitutional edifice  is  based.  In a system governed by  Rule  of  Law, discretion  when conferred upon an executive authority  must be confined within clearly defined limits. The rules provide the  guidance for exercise of the discretion in  making  ap- pointment from out of selection lists which was prepared  on the  basis of the performance and position obtained  at  the selection.  The appointing authority is to make  appointment in  the order of gradation, subject, to any  other  relevant rules  like, rotation or reservation, if any, or  any  other valid and binding rules or instructions having force of law. If  the  discretion is exercised without  any  principle  or without any rule, it is a situation amounting to the antith- esis of Rule of Law. [542D-E, F]     3.1  Discretion means sound discretion guided by law  or governed by known principles of rules, not by whim or  fancy or caprice of the authority. 1542G]

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JUDGMENT:       CIVIL   APPELLATE  JURISDICTION:  Civil  Appeal   Nos. 3321/82 and 3524 of 1983.     From  the  Judgment  and Order dated 2.5.  1980  of  the Punjab  and  Haryana High Court in C.W.P.  Nos.  677/79  and 97/79. P.P.  Rao  and  C.M. Nayar for the Appellants  in  both  the appeals. N.S. Das Behl for the Respondent in C.A. No. 3524 of 1983.     Awadh  Behari  Rohtagi, Mahabir Singh, A.G.  Prasad  and Prem Malhotra for the state of Haryana. The Judgment of the Court was delivered by     K. RAMASWAMY, J. 1. Since common questions of facts  and law  arise for decision in these two appeals, they are  dis- posed of by a common judgment. Civil Appeal No. 3221/82  and Civil Appeal No. 3524/83 arise out of the common judgment in Civil  Writ Petition Nos. 677/79 and 97/79 and a  few  other petitions  dated May 2, 1980, on the file of High  Court  of Punjab  and Haryana at Chandigarh. The writ  petitions  were dismissed  and the appellants had leave of this court  under Article  136 of the Constitution. The facts lie on  a  short compass 538 and reference to the facts on record in Civil Writ No. 97 of 1979  are  sufficient for disposal of  these  appeals.  Writ Petition  No.  97 of 1979 relates to  Punjab  service  while Civil Writ Petition No. 677/79 relates to Haryana.     2. The appellants were direct recruits to the ministeri- al  services in the subordinate offices of the  Directorates of Agriculture of the respective states. Admittedly all  are governed  by Punjab Subordinate Agricultural  Service  Rules 1933,  for short ’rules’. The respective  state  Governments upgraded on February 8, 1979 offices of the Directorates  as ’A’  Class  and the Subordinate Offices  situated  elsewhere remained  as ’B’ Class. The appellants and other filed  writ petitions on February 26, 1976 seeking a writ of mandamus to direct the respondents to upgrade the Subordinate Offices of the  Department  of Agriculture as ’A’ Class; to  treat  the appellants on par with the similar employees working in  the office of the Directorates of Agriculture; treat the  Direc- torate of Agriculture and Subordinate Offices as one depart- ment  for  maintaining common seniority of all of  them;  to upgrade their scales of pay on the basis of the said senior- ity and to quash the order dated February 8, 1979  declaring the  Directorate as ’A’ Class as wholly arbitrary  and  dis- criminatory. Pending appeals, the respective Governments  by proceedings  dated March 2, 1982 classified the  Directorate and  Subordinate Offices as ’A’ Class. The  Government  have also accorded equal pay to the employees similarly situated. Therefore, the only question that survives to be resolved is whether the Subordinate Offices and the Directorate would be treated as one unit and common seniority of all the  employ- ees should be maintained.     3.  Shri P.P. Rao and Shri C.M. Nayyar, learned  counsel for the appellants in the respective appeals contended  that the appellants were selected along with the persons appoint- ed  in the office of the respective Directorates. They  pos- sessed the same qualifications; their scales of pay are  now the  same. Their service conditions are also the same  under the  rules, and therefore, they are entitled to  maintenance of common seniority for the purpose of promotion. It is seen that the appointments were made somewhere in 1973. From  the list produced before us in Civil Appeal No. 3221/82 relating to  the State of Haryana, among the persons selected by  the

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Recruitment  Board, though some of the persons are found  to have  secured  higher ranking in the list  prepared  by  the Selection  Board,  they were appointed  to  the  Subordinate Offices while persons below them, in ranking were  appointed in  the Directorate. When we enquired from the  counsel  for the  State  Shri  Rohtagi, the learned  Senior  Counsel  has produced before us the not- 539 ings  which show that the Director had taken five  of  them, one  of whom had secured first class in  Matriculation,  two ex-service candidates and two candidates who secured  higher percentage of marks at the qualifying matriculation examina- tion. In the view we are taking this solitary  circumstances does  not militate against the ultimate conclusion  that  we have reached in the matter. Admittedly, rule 3 of the  rules provides  that the service shall consist of  seven  sections and  in  each section there shall be such  number  of  posts whether  permanent or temporary of each grade  specified  in the  appendix as the Local Government from time to time  may determine. Under rule 4(1) the Director of Agriculture shall make appointment to all the posts in the service except  the post of Junior Clerks, other than those sanctioned for  Head Office, Mukaddams and the posts shown under Section 7 of the appendix.  All other appointments shall be made by the  Head Office  concerned,  vide rule 4("). Rule  7  prescribes  the method of recruitment. Rule 7(1)(I) specifies thus: "In the case of Superintendent, Office of the Director-- (i)  by promotion from the amongst the Head  Assistants  em- ployed in the office, or (ii)  by  selection  from amongst  Superintendents  or  Head Assistants  with at least five years clerical experience  in other Government office." Rule 7(i)(J) read thus: "In the case of Head Assistant-- (i)  by promotion from amongst Assistant  and  Stenographers with  clerical experience who have proved their fitness  for the appointment, or (ii) by selection from amongst clerks employed in the office of Government other than the office of the Director." Rule 7(1)(K):           the  case  of Superintendent or Head  Clerk  of  a Subordinate Office-- 540 (i) by promotion from amongst Senior Clerks who have  proved their fitness for the post, or (ii) by selection from amongst clerks employed in Government Office other than the office in which the post/office is  to be filled." Rule 7( 1)(L): "In the case of Assistant-- (i) by promotion from amongst Senior Clerks in their respec- tive  offices who have proved their fitness for  appointment to the post; or (ii) by selection from amongst clerks employed in Government Offices  other  than the office in which the post is  to  be filled; or (iii) by direct recruitment-- provided that no graduate not already in Government  service shall  be  appointed to be an Assistant unless he  has  been recommended as fit for appointment by the Punjab  University Appointment Board." Sub-rule (2): "Appointment  to  any  post by the  promotion  of  officials already in service or by the transfer of officials shall  be made  strictly by selection and no official shall  have  any

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claim to such an appointment as of right."     The candidates have to undergo probation as provided  in Rule  9,  the  details of which are not  relevant.  Rule  10 provides seniority of members of the service. The  seniority of  the members in the service shall, in each class  of  ap- pointment shown in the appendix, be determined by the  dates of  their substantive appointment on probation or  otherwise to a permanent vacancy in such class. The other details  are not necessary. Hence omitted.     4. In the appendix, the office of the Director of  Agri- culture,  Section 6 mentions ministerial posts  of  Superin- tendent, Head Assis- 541 tants,  Assistants,  Stenographers,  Senior  Clerks,  Junior Clerks.  Their varying pay scales have also been  mentioned, the  details of which are now not material. In the  Subordi- nate  Offices one Superintendent, seven Head Clerks and  two Senior Clerks are the cadres.     5.  A resume of these rules clearly shows that  for  the appointment of all the posts including Junior Clerks in  the Head  Office, the appointing authority is the Director.  All appointments  to the post of Junior Clerks other  than  Head Office  shall  be by the concerned Head Office. As  per  the appendix, the staffing pattern in the Office of the Director of  Agriculture  and  the Subordinate  Offices  is  entirely different. The only common element is the Senior Clerks. The seniority  is to be maintained on the basis of the  substan- tive appointment to the respective cadres. The seniority  Of the members of the service shall, in each class of  appoint- ment  shown  in the appendix be determined by  the  date  of their  substantive appointment or promotion or otherwise  to permanent vacancies in such a class. The method of  appoint- ment has been adumbrated under Rule 7(1)(I) to (L) by promo- tion  from  amongst the persons working  in  the  respective subordinate  posts  in the respective offices in  the  first instance,  or by selection from amongst persons  working  in the Government Offices including Subordinate Offices and  in some  cases by the direct recruitment. Thereby it  is  clear that  for  filling up the vacancies arising in the  post  of Superintendent,  Assistants and Senior Clerks,  the  persons working in the Subordinate Offices or the Government Offices are the feeder channels, or in some cases by direct recruit- ment.  Sub-rule  (2) of Rule 7 makes the matter  clear  that they have got right to be considered, but it is strictly  by selection  and they have no claim to the appointment  as  of right. It is open to the Government to constitute  different cadres in any particular service as it may choose  according to its administrative convenience and expediency. The office of the Director is the apex office obviously to control  and oversee  the functioning of the subordinate offices and  the other  allied departments under his control  monitoring  the implementation of the Government’s agricultural  programmes. It  may not be necessary to maintain a common cadre  of  the employees  of the Directorate and the  Subordinate  Offices. Each  cadre is a separate service or a part of  the  service sanctioned  for administrative expediency.  Therefore,  each may be a separate unit and the posts allocated to the  cadre may be permanent or temporary. It is seen from the  appendix that in the office of the Directorate there is one  Superin- tendent,  three Head Assistants, four Assistances, two  Ste- nographers, seven Senior Clerks and twelve Junior Clerks. In the Subordinate Offices, there is one Superintendent,  seven Head Clerks and two 542 Senior Clerks. This is obviously on the basis of administra-

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tive  need. No doubt the office of the Directorate  and  the Subordinate Offices have been compendiously shown in Section 6 of the Appendix. That does not by itself mean that  office of the Directorate and Subordinate Offices are treated under the  rules as one unit or at par. as contended for  by  Shri P.P. Rao. As pointed out in the beginning, the Director  had committed  some  irregularities at the time of  initial  ap- pointments  in the year 1973 when he picked up five  persons out of the select list of the candidates and appointed  them in the Directorate of Haryana Government deviating from  the order of merit prepared by the Board. They were selected  at a common selection by the Recruitment Board along with other candidates  who stood higher in the order of merit  prepared by  the Selection Board. But this was done in the year  1973 and  the appointments have not been challenged till date  of filing of the writ petition in 1979. Even in the writ  peti- tion  no  challenge was made. This is pressed  into  service only to show that the appellants are similarly situated with them.  After the appointments were made and  the  candidates joined in the respective posts for consideration for  promo- tion  the  Rules occupy the field and the claims are  to  be considered according to Rule 7. Therefore, though we may not agree with the learned counsel for the State that the Direc- tor  had absolute discretion to pick and choose  arbitrarily and  make appointment of the posts, yet undoubtedly, he  had power  to  appoint them. Normally the order  of  appointment would  be in the order of merit of candidates from the  list and must be in accordance with rules. His exercise of  power should  not be arbitrary. The absence of arbitrary power  is the  first  postulate of rule of law upon  which  our  whole constitutional  edifice  is based. In a system  governed  by Rule  of  Law, discretion when conferred upon  an  executive authority  must be confined within clearly  defined  limits. The  rules provide the guidance for exercise of the  discre- tion in making appointment from out of selection lists which was  prepared on the basis of the performance  and  position obtained  at the selection. The appointing authority  is  to make  appointment in the order of gradation, subject to  any other relevant rules like, rotation or reservation, if  any, or any other valid and binding rules or instructions  having force  of  law. If the discretion is exercised  without  any principle  or without any rule, it is a situation  amounting to  the anti-thesis of Rule of Law. Discretion  means  sound discretion guided by law or governed by known principles  of rules, not by whim or fancy or caprice of the authority.  We refrain  from going into the correctness of the choice  made by the Director due to latches in not assailing the correct- ness of the appointment for well over six years. The validi- ty of the rules have not been questioned. The only  question is, as stated earlier, whether the 543 employees  working  in the Head Office and  the  Subordinate Office  are  entitled to common seniority. The  rules  them- selves  made a distinction between the persons appointed  in the  Directorate  and the Subordinate  Offices  as  separate cadres and the subordinate cadre in some cases is the feeder cadre for promotion to the post in the Head Office. In  this view,  by no stretch of imagination, the appellants  can  be considered  to  be equally placed for treating them  at  par with the Directorate employees for being treated as being in a  common cadre. There is reasonable nexus to  differentiate the two cadres. Therefore, the classification cannot be said to be arbitrary violating Articles 14 and 16 of the  Consti- tution.     6.  It is not necessary to burden the judgment with  the

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decisions  cited by either counsel as they are not  directly or nearer to the core in the case. Accordingly we hold  that the  appellants are not entitled to be treated at  par  with the  employees  working in the respective  Directorates  for giving  direction  to  the respondents  to  maintain  common seniority  between  the  employees of  the  Directorate  and Subordinate Offices. The appeals are accordingly  dismissed, but without costs. T.N.A.                                         Appeals  dis- missed. 544