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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: H.R. PATANKAR & ORS.

DATE OF JUDGMENT14/08/1984

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR 1587            1985 SCR  (1) 400  1984 SCALE  (2)172

ACT:      Indian Administrative Service (Regulation of Seniority) Rules 1954 Rules 3 (3) (a) and 3 (3) (b).      Direct recruits  and promotees-Assignment  of same year of allotment-Inter se seniority-How determined.      Gradation  list-Preparation   of-Lacuna  in   Seniority Rules-Government entitled to issue an executive order.

HEADNOTE:      The  first  respondent  was  recruited  to  the  Indian Administrative Service  through  a  competitive  examination held in  1955,  and  assigned  the  year  1956  as  year  of allotment to  the Service under Rule 3 (3) (a) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 on August  21, 1961 he started officiating in a senior post. Respondent Nos.  3 to  9 were  members of  the  State  Civil Service and  they were promoted to the Indian Administrative Service.  Respondent   Nos.  3   to  7  started  officiating continuously in  the senior  post in  the Service  w.e.f 9th June 1961. While respondent Nos. 8 and 9 started officiating w.e.f. August  19, 1961.  The year  of  allotment  given  to Respondent Nos.  3 to  9 was  the same as that of respondent No. 1,  viz. 1956 and that was given in accordance with Rule 3 (3) (b) of the Seniority Rules.      When the  gradation list  as on  1st January  1963  was issued by  the Government  of India,  the  first  respondent found that  the Government had placed respondent Nos. 3 to 9 as senior  to him  in the  gradation list on the ground that they had started officiating in a senior post in the Service earlier than  the first  respondent.  The  first  respondent thereupon made  several representation  to the Government of India against  the aforesaid  fixation of seniority but they were  ultimately  rejected  by  a  communication  dated  7th October, 1966.      Being aggrieved,  the first  respondent  filed  a  writ petition challenging  the validity  of  the  said  gradation list, but  a single  Judge of  the High  Court rejected  the contentions of  the first respondent, and dismissed the writ petition      The first respondent preferred a Letters Patent Appeal, which was  allowed by  the Division  Bench, holding that the

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First respondent  was entitled  to seniority over respondent Nos. 3  to 9,  and that the Government of India was wrong in placing him  below respondent  Nos. 3  to 9 in the gradation list.      Dismissing the  Appeal of  the Union  of India  to this Court, ^      HELD :1. The Division Bench of the High Court was right in holding  that the  first respondent  should  be  assigned seniority over respondent Nos. 3 to 9 in the gradation list. [409E] 401      In the  instant case,  the only fair and just principle of seniority  which  can  be  applied  as  between  officers directly recruited  through a  competitive  examination  and officers promoted  from the  State Civil  Service and having the same  year of  allotment, is  to regard  direct recruits through a  competitive examination  as senior  to  promotees from the State Civil Service. [409C-D]      2. The  gradation list has to be prepared in accordance with the  principle of seniority laid down by the Government either statutorily  or by  means of  executive order or rule and it  is by  reference to such principle of seniority laid down by  the Government  that the  validity of the gradation list is  required to  be judged.  The  gradation  list  must follow the  enunciation  of  the  appropriate  principle  of seniority followed  by the  Government and  no principle  of seniority can  be implied  from the inter se seniority fixed in such gradation list. [408F-G] [408F-G]      In the  instant case  the same  year of  allotment  was assigned to  the first respondent as also to respondent Nos. 3 to  9 and between them, the first respondent was appointed to the Indian Administrative Service earlier than respondent Nos. 3  to 9.  On the  date when  the first  respondent  was appointed  to   the  Indian   Administrative  Service,   the principle of seniority which was in force was one set out in the original  sub-rule (3)  of Rule  4 and according to this principle if respondent Nos. 3 to 9 had been appointed prior to 11th  April 1958 but subsequent to the appointment of the first respondent  the first  respondent would be entitled to claim seniority over respondent Nos. 3 to 9. [408H; 409A-B]      3.  Rule  4  of  the  Seniority  Rules  laid  down  the principles for  governing inter  se seniority of officers in the Indian  Administrative Service.  By a notification dated 11th April 1958, Rule 4 was amended by the substitution of a new sub-rule  (3) in place of the old one. For determination of inter se seniority of officers appointed on or after 11th April 1958  an amendment was made on 13th August, 1958 which introduced  a   sub-rule  (4)   after  sub-rule   (3)  which substantially laid  down the same provisions as the sub-rule (3) introduced  by the amendment of 11th April 1958. Neither the  original   sub-rule  (3)   nor  the  new  sub-rule  (3) introduced by the amendment of 13th August 1958 can apply in the instant  case of determining inter se seniority of first respondent and  respondent Nos.  3 to 9, because even though the first respondent and respondent Nos. 3 to 9 all have the same  year   of  allotment  and  the  first  respondent  was appointed to  the service  after  the  commencement  of  the Seniority Rules  and before 11th April 1958, respondent Nos. 3 to  9 were appointed on 9th June 1961 and 29th August 1961 that is  after 11th  April 1958.  Similarly neither  the new sub-rule (3)  introduced by the amendment of 14th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958  would apply  for determining inter se seniority between the  first respondent  and respondent  Nos. 3  to  9

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because this  provision would  apply  only  for  determining inter se  seniority in  respect of officers appointed to the Service on or after 11th April 1958 and the first respondent having been  appointed prior  to 11th  April 1958  would not fall within this category. [404B, 405E; 406E; 407A; D-G]      In the  instant case, there was at the material time no rule in  the Seniority  Rules which  laid down the principle for determining inter se 402 seniority between  an officer appointed to the Service prior to 11th  April 1958  and an officer appointed to the Service on or  after that  date. There  was clearly  a lacuna in the Seniority Rules  which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down  a rule  for determining  the inter se seniority in such a situation and this could be done by the Government of India even  by an  executive order.  There is nothing in the record to  show that  the Government  of  India  issued  any executive order  or  rule  laying  down  the  principle  for determining inter se seniority as between officers appointed prior to  11th April 1958 and officers appointed on or after that date. [407H; 408A; D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 173 of 1978.      From the Judgment and order dated the 28th July, 1969 o the Delhi  High Court  in Letters  Patent Appeal  No. 21  of 1969.      Harbans Lal and R.N. Poddar for the Appellant.      Anil Naliriya and K.H. Hathi for the Respondent.      S.K. Bagga for the Intervener.      The Judgment of the Court was delivered by      BHAGWATI J.  This appeal  by  certificate  is  directed against the judgment of the High Court of Delhi allowing the writ petition  of respondent  No. 1  and striking  down  the validity of  the seniority  list  issued  by  the  appellant placing the first respondent below respondent Nos. 3 to 9 in the seniority  list. The  controversy arising  in the appeal lies in  a narrow  compass but  in order  to arrive  at  its correct determination,  it is  necessary to  state briefly a few facts leading to the filing of the appeal.      The  first  respondent  was  recruited  to  the  Indian Administrative Service  through  a  competitive  examination held in  955 and  according to  Rule 3(3)(a)  of the  Indian Administrative Service (Regulation of Seniority) Rules, 1954 (hereinafter referred  to as  the ’Seniority Rules’), he was assigned the  year 1956  as the  year a  of allotment to the Service.. He  was posted  in a  junior post  on  recruitment through   competitive    examination    for    the    Indian Administrative Service  and on  21st August, 1961 he started officiating in a senior post. Respondent Nos. 3 to 9 were on the other  hand members  of the  Gujarat State Civil Service and they  were promoted to the Indian Administrative Service and they started officiating continuously in the senior post in the  Service w.e.f. 9th June. So far as respondent Nos. 3 to 7 were concerned and with effect 403 from 29th  August 1961  so far as the remaining respondents, namely, respondent  Nos. 8 and 9 were concerned. The year of allotment given  to respondent  Nos. 3  to 9 was the same as that of respondent No. 1, namely, 1956 and that was given in accordance with  the  provisions  of  Rule  3(3)(b)  of  the

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Seniority  Rules.  The  seniority  amongst  direct  recruits through competitive examination and promotees from the State Civil Service  was  governed  by  the  Seniority  Rules  and according to  the first  respondent,  since  they  were  all assigned the same year of allotment, the first respondent as a direct  recruit  through  a  competitive  examination  was entitled to  rank higher in seniority than respondent Nos. 3 to 9  who were  promoted from  the State Civil Service. But, when the gradation list as on 1st January 1963 was issued by the Government of India, the first respondent found that the Government of  India had  placed respondent  Nos. 3  to 9 as senior to him in the gradation list, on the ground that they had started  of officiating  in a senior post in the Service earlier than  the first  respondent.  The  first  respondent thereupon made  several representations to the Government of India  against  the  fixation  of  his  seniority  vis-a-vis respondent  Nos.   3  to  9  but  the  Government  of  India ultimately rejected  his representation  by a  communication dated 7th  October, 1966.  The  first  respondent  thereupon filed a writ petition in the High Court of Delhi challenging the validity  of the gradation list showing him as junior to respondent Nos.  3 to  9. The  writ  petition  came  up  for hearing before  a single  Judge of  Delhi High Court and the learned  Judge   rejected  the   contentions  of  the  first respondent and dismissed the writ petition. Respondent No. 1 thereupon  preferred   a  Letters  Patent  Appeal  before  a Division Bench  of the  Delhi High  Court and  the  Division Bench did  not agree  with the  view taken  by  the  learned single Judge and held that the first respondent was entitled to seniority  over respondent  Nos. 3  to  9  and  that  the Government  of   India  was   wrong  in  placing  him  below respondent Nos.  3 to  9 in the gradation list. The Division Bench on  this view  allowed the  Letters Patent  Appeal and issued a writ directing that the gradation list be corrected by showing the first respondent as senior to respondent Nos. 3 to  9. The  Union of India thereupon preferred the present appeal on  the basis  of certificate  granted under  Article 133(1)(c) of the Constitution.      The  short   question  which   therefore   arises   for consideration 404 is as to the relative seniority of the first respondent vis- a-vis respondent  Nos. 3 to 9. Since the only rules in force for determining inter se seniority of officers in the Indian Administrative  Service   at  the  material  time  were  the Seniority Rules,  it is  necessary to  refer to them for the purpose of  resolving this question. Rule 4 of the Seniority Rules laid  down  the  principles  for  governing  inter  se seniority of  officers in  the Indian Administrative Service and this  Rule  as  it  originally  stood  at  the  time  of promulgation of  the Seniority  Rules on 8th September, 1954 was in so far as material in the following terms:           "Rule 4.  Seniority of  officers-(1) The seniority      of officers  inter se shall be determined in accordance      with the provisions hereinafter contained in this Rule.           (2) The  seniority of  officers in  service at the      commencement of  these  rules  shall  be  as  has  been      determined  or   may  be   determined  by  the  Central      Government  in   accordance   with   the   orders   and      instructions   in    force   immediately   before   the      commencement of these rules.           Provided that  where the  seniority of  an officer      appointed in  accordance with sub-rule (1) of Rule 8 of      the Recruitment  Rules has  not been  determined before      the commencement of these rules, his seniority shall be

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    determined in accordance with the provision in sub-rule      (3).           (3) The  seniority of  officers appointed  to  the      service after  the commencement  of these rules who are      assigned the  same year  of allotment  shall be  in the      following order that is to say:      (i)  officers appointed  to the  service on the results           of a  competitive examination  in accordance  with           rule 7 of the Recruitment Rules ranked inter se in           accordance   with    rule   10   of   the   Indian           Administrative Service (Probation) Rules, 1954;      (ii) officers appointed  to the service by promotion in           accordance with  sub-rule (1)  of rule  8  of  the           Recruitment Rules  ranked inter se in the order of           the date of their appointment. 405                Provided that  if the  date of appointment of           more than  one such  officer  is  the  same  their           seniority inter  se shall be in the order in which           their names  are arranged  on the  date  of  their           appointment to  the Service  in  the  Select  List           prepared having  regard to the requirements of the           Indian  Administrative   Service  (Appointment  by           Promotion) Regulations  framed under  sub-rule (1)           of rule 8 of the Recruitment Rules."      Now if  this Rule  4 had  continued in the same form in which it  was originally  promulgated. there can be no doubt that under Sub-Rule (3) of that Rule, respondent No. 1 being as direct  recruit appointed  on the result of a competitive examination would  have clearly  been senior  to  respondent Nos. 3 to 9 who were promotees from the State Civil Service. Sub-rule (3)  of  Rule  4  would  have  clearly  applied  to determine their  inter se  seniority, because  they were all assigned the  same  year  of  allotment,  namely,  1956  and according to sub-rule (3) of Rule 4, direct recruits through competitive examination  were en  bloc entitled to seniority over promotees  from the State Civil Service having the same year of  allotment. But, by a notification dated 11th April, 1958, Rule  4 was  amended by the substitution of a new sub- rule (3)  in place  of the old one and this new sub-rule (3) so far as relevant provided inter alia as follows:.           "Sub-Rule 3.-The  seniority of  officers appointed      to the  service on  or after the day of April 11, 1958,      who are assigned the same year of allotment shall be in      the following order, that is to say-      (i)  Officers appointed  to the  service on the results           of a  competitive examination  in accordance  with           rule 7  of the Rectt. Rules and officers appointed           to the  service by  promotion in  accordance  with           sub-rule (1)  of rule  8 of the those Rules ranked           inter se  in the  order of the dates on which they           start officiating  continuously in  senior  posts,           the date  of officiation in the case of the latter           officers being  the same  as the  date taken  into           account for  the purpose  of assignment of year of           allotment under sub-rule (3) of rule 3: 406           Provided that-      (a)  the seniority  inter se  of officers  appointed to           the  service  on  the  results  of  a  competitive           examination in  accordance  with  rule  7  of  the           Recruitment Rules  and ranked  in accordance  with           rule  10  of  the  Indian  Administrative  Service           (Probation) Rules, 1954 shall not be affected;      (b)  Where  the  date  of  commencement  of  continuous

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         officiation  in   a  senior  post  of  an  officer           appointed to the service in accordance with rule 7           of the Recruitment Rules is the same as that of an           officer appointed  to the  service under  sub-rule           (1) of  rule 8  of those  rules, the  former shall           rank senior to other officer;      (c)  Where  the  date  of  commencement  of  continuous           officiation in  senior  posts  of  more  than  one           officer appointed  to the  service  in  accordance           with sub-rule  (1) of  rule 8  of the  Recruitment           Rules in  the same, their seniority inter se shall           be in  the order  of their dates of appointment to           the service,  and where the date of appointment is           also the  same, in  the order in which their names           are arranged  on the  date of their appointment to           the service  in the  select list  prepared  having           regard     to  the   requirements  of  the  Indian           Administrative Service  (Appointment by Promotion)           Regulations framed under sub-rule (1) of rule 8 of           the Recruitment Rules."      This  new   sub-rule  (3)   was  on   its  plain  terms prospective in  operation  and  it  governed  the  inter  se seniority of  only those  officers appointed  to the  Indian Administrative Service  on or  after 11th April 1958 and did not apply  for determining  inter se  seniority where one of the competing  officers were  appointed prior  to 11th April 1958.  This   was  clear   enough  on  a  plain  grammatical construction of  the new  sub-rule (3) but the Government of India thought  that its  intention should not be left in any doubt whatsoever  and therefore  on  13th  August  1958  the Government of  India again  amended Rule  4 by  substituting sub-rule (3).  The  new  sub-rule  (3)  introduced  by  this amendment substantial  reproduced the  original sub-rule (3) for determining  inter se  seniority of  officers  appointed before 11th April 1958 and so far as the determination 407 of inter se seniority of officers appointed on or after 11th April 1958  was concerned, the amendment inserted a new sub- rule(4) after sub rule (3) which substantially laid down the same provisions  as  the  sub-rule  (3)  introduced  by  the amendment of  11th April  1958.  Obviously,  the  object  of making this  amendment on  13th August  1958 was  to clarify that the  principle of  seniority laid  down in the original sub-rule (3)  would continue  to apply for determining inter se seniority  of officers appointed prior to 11th April 1958 and the inter se seniority of officers appointed on or after 11th April  1958 would  be  governed  by  the  principle  of seniority laid  down  in  sub-rule  (3)  introduced  by  the amendment of 11th April 1951.      Now it  is obvious  that neither  the original sub-rule (3) nor  the new sub-rule (3) introduced by the amendment of 13th  August   1958  can  apply  in  the  present  case  for determining inter  se  seniority  of  first  respondent  and respondent Nos.  3 to 9, because though the first respondent and respondent  Nos. 3  to 9  all  have  the  same  year  of allotment and  the first  respondent was  appointed  to  the service after  the commencement  of the  Seniority Rules and before  11th  April  1958,  respondent  Nos.  3  to  9  were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April  1958. The  old sub-rule (3) as also the new sub- rule (3)  introduced by  the amendment  of 13th  August 1958 apply only  when the  inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958  and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this

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provision on  its plain  terms would  not  apply.  Similarly neither the  new sub-rule (3) introduced by the amendment of 11th April  1958 nor  the new sub-rule (3) introduced by the amendment of  13th August  1958 would  apply for determining inter  se   seniority  between   the  first  respondent  and respondent Nos. 3 to 9, because those provisions would apply for determining  inter  se  seniority  only  in  respect  of officers appointed  to the  service on  or after  11th April 1958 and the first respondent having been appointed prior to 11th April  1958 would  not fall within this category. There can therefore  be no  doubt that  there was  at the material time no  rule in  the Seniority  Rules which  laid down  the principle for  determining inter  se  seniority  between  an officer appointed  to the  service prior  to 11th April 1958 and an  officer appointed  to the  service on  or after that date. There  was clearly  a lacuna  in the  Seniority  Rules which failed  to provide  for this situation. The Government of India 408 was in  the circumstances  entitled to  lay down  a rule for determining inter  se seniority in such a situation and this could be  done  by  the  Government  of  India  even  by  an executive order.  It is  now well  settled law  that even if there are  no  statutory  rules  in  force  for  determining seniority in  a service or even if there are statutory rules but they  are  silent  on  any  particular  subject,  it  is competent to  the Government  by an  executive order to make appropriate Seniority  Rules or to fill in the lacuna in the statutory rules  by making  an appropriate seniority rule in regard to  the subject  on which  the  statutory  rules  are silent. The  Government of India could have therefore in the present case  issued an  executive order  laying down a rule for  determining   inter  se   seniority  between   officers appointed to the service prior to 11th April 1958 on the one hand and  officers appointed to the service on or after that date on  the other.  But the  learned counsel  appearing  on behalf of  the Union of India could not show from the record any such  executive order  made by  the Government of India. There is  nothing in  the record to show that the Government of India  issued any executive order or rule laying down the principle for  determining inter  se  seniority  as  between officers appointed  prior to  11th April  1958 and  officers appointed on  or after  that date.  The only  argument which could be advanced by the learned counsel appearing on behalf of the  Union of  India was  that such an executive order or rule must  be implied  from the gradation list issued by the Government of  India where  respondent No.  1 was  shown  as junior to  respondent Nos.  3 to  9. But  this  argument  is plainly unsustainable  because the  gradation list has to be prepared in  accordance with the principle of seniority laid down by  the Government either statutorily or by means of an executive order  or rule  and it  is by  reference  to  such principle of  seniority laid  down with  the Government that the validity of the gradation list is required to be judged. The gradation  list  must  follow  the  enunciation  of  the appropriate principle  of seniority by the Government and no principle of  seniority can  be implied  from the  inter  se seniority fixed  in  such  gradation  list.  That  would  be putting the  cart before the horse. If such an argument were to prevail,  it would  mean the  end of  the  law,  for  the gradation list  would then  not be based on any principle or norm determining  seniority but  it would  be  open  to  the Government  to   issue  the  gradation  list  without  being fettered by  any principle  or  norm  to  guide  it  in  the preparation of the gradation list.

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    The question  than arises  as to what principle must be followed determining  inter se  seniority between respondent Nos. 3 to 9. 409 Now admittedly  the same  year of  allotment was assigned to the first  respondent as  also respondent  Nos. 3  to 9  and between them,  the first  respondent was  appointed  to  the Indian Administrative Service earlier than respondent Nos. 3 to 9.  Moreover, on  the date  when the first respondent was appointed  to   the  Indian   Administrative  Service,   the principle of seniority which was in force was one set out in the original  sub-rule (3)  of rule  4 and according to this principle if respondent Nos. 3 to 9 had been appointed prior to 11th  April, 1958  but subsequent  to the appointment, of the first  respondent, the  first respondent would have been entitled to claim seniority over respondent Nos. 3 to 9. How then, can  respondent Nos. 3 to 9 be assigned seniority over the  first   respondent  when  they  came  to  be  appointed subsequent to  11th April  1958.  The  only  fair  and  just principle of  seniority which  can  be  applied  in  such  a situation, as  between officers directly recruited through a competitive examination and officers promoted from the State Civil Service  and having  the same year of allotment, is to regard direct  recruits through a competitive examination as senior to  promotees from  the State  Civil Service.  We are therefore of  the view  that the  Division Bench of the High Court was  right in holding that the first respondent should be assigned  seniority over  respondent Nos.  3 to  9 in the gradation list.      We  accordingly  dismiss  the  appeal  and  uphold  the judgment of the Division Bench of the High Court, though for different reasons. We direct that the first respondent shall be shown  as senior  to  respondent  Nos.  3  to  9  in  the graduation list.  There will  be no order as to costs of the appeal. N.V.K.    Appeal dismissed. 410