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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: S.N. DUBEY & ORS.

DATE OF JUDGMENT:       13/08/1998

BENCH: S.C. AGRAWAL, M. SRINIVASAN, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. AGRAWAL, J. :      The question  that  falls  for  consideration  in  this appeal relates  to assignment  of year  of allotment for the purpose   of   fixation   of   seniority   in   the   Indian Administrative Service  [hereinafter  referred  to  as  ‘the Service’]  to   Shripati  Narain   Dubey,   the   contesting respondent [hereinafter  referred to  as ‘the  respondent’]. The respondent  was appointed  as an Assistance Professor of Civil  Engineering  in  the  Department  of  Industries  and Technical Education, a Class II service of the Government of Bihar, in  July 1968  and he jointed the said post on August 13,  1968.   He  was   confirmed  on   the  said  post  vide notification No.  5036  dated  December  13,  1969.  He  was promoted as  Associate Professor of Civil Engineering on May 21,  1975.   He  worked  in  the  various  posts  under  the Government of  Bihar and  vide notification No. 37 dated May 1, 1976 he was appointed as Assistant Director in the Bureau of Public  Enterprises. By order dated September 3, 1977 the post of  Assistant Director  was upgraded  to that of Deputy Secretary-cum-Deputy Director.  Subsequently by notification dated October  30, 1978  the post  of Deputy  Secretary-cum- Deputy  Director   of  the   Bureau   of   Enterprises   was redesignated  as  Joint  Secretary-cum-Joint  Director.  The respondent was  appointed to  the  Service  by  Notification Dated May  12, 1981.  He was  assigned 1977  as the  year of allotment. In  this regard,  letter dated April 11, 1986 was addressed by  the Under  Secretary from  the  Department  of Personnel and  Training, Government  of India,  to the Chief Secretary, Bihar,  Patna, wherein  it was  stated  that  the matter of  determination of  the year  of allotment  of  the respondent has  been examined in consultation with the Union Public Service  Commission in accordance with the provisions of Rule  3  (3)(c)  of  the  Indian  Administrative  Service (Regulation of  Seniority) Rules, 1954 [hereinafter referred to as  ‘the Seniority Rules’] and that the year of allotment of the  respondent cannot  be determined  earlier than  1977 since,  as  per  the  information  furnished  by  the  State Government, Shri Yadu Nath is the junior most officer of the State Civil  Service who was appointed in the Service before

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and in comparison to the length of service of the respondent in the  State in  a Gazetted  post, Shri  Yadu Nath  Jha had served in  the State  Civil Service  for a longer period and hence, as  per the proviso to Rule 3(3)(c) of t he Seniority Rules, the  year of allotment of the respondent could not be determined earlier  than 1877.  The representation submitted by the  respondent against  the said  determination of 1977. The representation  submitted by  the respondent against the said determination  of 1977  as the  year of  allotment  was rejected by the Government of India, Department of Personnel and Administrative  Reforms, Ministry  of Home  Affairs,  by letter  dated  July  14,  1987.  Feeling  aggrieved  by  the aforesaid decision  whereby 1977  was determined as the year of allotment for the purpose of fixation of his seniority in the Service, the respondent moved the Central Administrative Tribunal, Patna  Bench, Patna,  [hereinafter referred  to as ‘the Tribunal’],  by filing  O.A.No. 424 of 1988, wherein he claimed  that   the  year  of  allotment  should  have  been determined as 1971 and not 1977. The said application of the respondent was  allowed by  the Tribunal  by judgment  dated September 17,  1990. The  Tribunal quashed  the orders dated April 11,  1986 as  well as  July 14,  1987 and directed the Union of  India to  fix 1971 as the year of allotment of the respondent and  place him  below Shri  Dev Das  Chhotray the junior most  direct recruit  of the  year 1971. In the  said judgment the  Tribunal, following  its earlier  judgment  in K.V. Nambiar  v. Union  of India  &  Ors.,  decided  by  the Ernakulam Bench  of the  Tribunal, held  that the proviso to Rule 3(3)(c) of the Seniority Rules was unconstitutional and void. In  Special Leave Petitions Nos. 8773 of 1990 and 3127 of 1991 filed by the Union of India against the decisions of the Tribunal in the cases of K.V. Zambiar and the respondent this Court,  by order  dated April  8, 1991, granted special leave to appeal and passed the following order :-      "Special leave granted.      Heard counsel.           We are  inclined to  take  the      view     that      the      Central      Administrative Tribunal  should not      have struck  down Rule  3(3)(c)  of      the Indian  Administrative  Service      (Regulation  of   Seniority)  Rule,      1954, merely  n the  basis that the      two instances which had come before      it fr  consideration were not being      adequately answered  years and t he      challenge  that  has  now  come  fr      consideration was the rare instance      where under  the Rules,  it  became      difficult to  deal with the matter.      Union of India has in its affidavit      indicated     that      exceptional      situations as  arising in  the case      of the  two respondents  should  be      answered under  the residual  Rules      and if not covered under the Rules,      under the administrative powers and      for that  purpose the  Rules should      not have  been truck  down. Counsel      for Union  of  India  has  told  us      during the course of hearing of the      appeals that  the relief granted by      the Central Administrative Tribunal      so far  as  the  two  officers  are      concerned may be sustained in terms

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    of the  directions of  the Tribunal      but the  further direction that the      Rule referred  to above  is  struck      down may  be set aside. Counsel for      the respondents  have no objections      to the  submission of the appellant      being accepted.           We are  inclined to accept the      submission and  while vacating  the      decision of  the  Tribunal  on  the      question of the vires of the Rules,      we sustain  the reliefs  granted by      the Tribunal  in  terms.  Both  the      appeal are partly allowed.      No costs."      Civil Appeal  No. 1755  of 1991  arises out  of Special Leave Petition  filed against  the judgment  of the Tribunal dated September  17, 1990  in O.A.  No. 424 of 1988 filed by the respondent.  The Union  of India filed a Review Petition for the  review of the said order dated April 8, 1991 passed by this  Court. In  the said  Review Petition it was pointed that in  the case  of the  respondent the seniority has been fixed in  accordance with  the provisions of Rule 3(3)(c) of the Seniority  Rule and  that  the  relief  granted  by  the Tribunal could  be sustained  in so  far as K.V. Nambiar was concerned but  the said relief could not be sustained in the case of  the respondent.  The Review  Petition filed  by the Union of  India was  dismissed by  this Court by order dated July 31,  1991. Thereafter  the Central Government passed an order dated August 19, 1991 whereby the year of allotment of the respondent  was revised  from 1977  to 1971  and it  was directed that for the purpose of inter se seniority he would be placed  below Shri D.D. Chhotray (RR 71) in the gradation list of  the IAS  officers borne  on the cadre of Bihar. The said order  dated August  19, 1991  adversely  affected  the seniority of  the officers  who had  been assigned  years of allotment between  1971 to  1977. Mukesh  Nandan Prasad  and Ahok  Kumar   were  appointed   to  the  Service  by  direct recruitment and had been signed 1972 and 1974 as the year of allotment respectively.  As a  result of  order dated August 19, 1991 whereby his year of allotment was revised from 1977 to 1871 the respondent became senior to both these officers. The said officers filed a Writ Petition [W.P. (c) No. 290 of 1992] in  this Court wherein they challenged the validity of the order  dated August  19, 1991  regarding the revision of the year  of allotment  of the respondent. It was urged that the respondent h ad been correctly assigned 1977 as the year of allotment  on the basis of the proviso to Rule 3(3)(c) of the Seniority  Rules and  since the  validity  of  the  said provision has  been  upheld  by  this  Court,  the  year  of allotment of  the respondent  cannot be altered from 1977 to 1971.  On   July  21,  1998  the  learned  counsel  for  the petitioners in  the said  Writ Petition  submitted that  the Writ Petition  may be  permitted to  be  treated  as  Review Petition for  review of  the judgment  of this  Court  dated April 8,  1991 in  Civil Appeals  Nos. 1755 and 1784 of 1991 for the  reason that   the  petitioners were  not parties in those proceedings but are adversely affected by the judgment of this Court dated April 8, 1991 and that the said judgment of this  Court came to the knowledge of the petitioners only after the  order dated  August 19,  1991 was  passed on  the basis  the  said  judgment  and  that  soon  thereafter  the petitioners had  filed the  Writ Petition  in this Court. In view of  the said  statement of  the learned  counsel,  this Court, by  order dated July 21, 1998, directed that the said

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Writ Petition  be treated  as Review  Petition for review of the judgment  of this  Court in  Civil Appeals Nos. 1755 and 1784 of  1991 and  thereafter the  said  Writ  Petition  was registered as Review Petition Nos. 1391-1392 of 1998.      At the  time of  the hearing  of the Review Petition on July 30, 1988 Shri Ranjit Kumar, the learned counsel for the petitioners, stated that the petitioners have grievance only against the  order passed  by this Court in Civil Appeal No. 1755 of 1991 relating to the respondent and they do not have any grievance  against the  order passed in Civil Appeal No. 1784 of  1991 relating  to K.V.  Nambiar and that the Review Petition may, therefore, be treated as seeking review of the order dated  April 8,  1991 passed  by this  Court in  Civil Appeal No.  1755 to  1991. After  hearing Ranjit  Kumar, the learned counsel  for the petitioners in the Review Petition, and Shri  H.N. Salve,  the learned  senior counsel appearing for the  respondent, this  Court, by  order dated  July  30, 1998, allowed  the Review Petition and the order dated April 8, 1991 to the extent it related to Civil Appeal No. 1755 of 1991 was  set aside.  Civil Appeal  No. 1755  of 1991 was it thereafter taken  up for hearing and the petitioners, Mukesh Nandan Prasad  and Ashok Kumar, were ordered to be impleaded as parties in the said appeal.      We have heard Shri Ranjit Kumar and Shri P.P. Malhotra, the learned senior counsel for the Union of India in support of the  appeal and  Shri H.N.  Salve, the leaned counsel for the respondent.      Under Rule  4  of  the  Indian  Administrative  Service (Recruitment) Rules,  1965 [hereinafter  referred to as ‘the Recruitment Rule’]  recruitment to  the Service  can be made (i) by competitive examination; (ii) by selection of persons among the  Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Force of the Union; (iii) by promotion of substantive member of a State Civil Service; and (iv)  by selection  in special cases from among persons, who  hold  in  a  substantive  capacity  gazetted  posts  in connection with  the affairs  of a  State and  who  are  not members of  a State  Civil Service. Sub-rule(1) of Rule 8 of the Recruitment  Rules deals with recruitment to the Service by promotion from amongst the substantive members of a State Civil  Service  and  sub-rule  (2)  of  Rule  8  deals  with recruitment by  selection of a person of outstanding ability and merit  serving in  connection with  the affairs  of  the State who  is not a member of the Date Civil Service of that State but  who  holds  a  gazetted  post  in  a  substantive capacity. Seniority  in the  service is  determined  on  the basis of year of allotment. Rule 3(1) of the Seniority Rules lays down  that every  officer shall  be assigned  a year of allotment in  accordance with  the provisions  of  the  said Rule. Sub-Rule  (2) of  Rule 3 deals with assigning the year of  allotment   to  an   officer  in   the  Service  at  the commencement of  the Seniority Rules. Sub-rule (3) of Rule 3 relates to  assigning of  year of  allotment to  an  officer appointed to  the Service  after  the  commencement  of  the Seniority Rules.  Clause (b) of sub-rule (3) of Rule 3 deals with assigning the year of allotment to an officer appointed to the Service after the commencement of the Rules where the officer  is   appointed  to  the  Service  by  promotion  in accordance with  sub-rule (1)  of Rule  8 of the Recruitment Rules, while clause (c) of sub-rule (3) of Rule 3 relates to assigning the  year of  allotment  to  a    non-State  Civil Service officer who is appointed to the Service by selection in  accordanced   with  sub-rule   (2)  of  Rule  8  of  the Recruitment Rules. In the present case we are concerned with assigning of  year of  allotment to  the respondent,  a non-

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State Civil  Service  Officer,  who  was  appointed  to  the Service by selection in accordance with sub-rule (2) of Rule 8 of the Recruitment Rules. The determination of the year of allotment of  the respondent  is governed by Rule 3(3)(c) of the Seniority Rules which, at the relevant time, provided as under :-      "(3)   The year  of allotment of an      officer appointed  to  the  Service      after  the  commencement  of  these      rules, shall be----      (c) where  the officer is appointed      to  the  Service  by  selection  in      accordance  with  sub-rule  (2)  of      rule 8  of the  Recruitment  Rules,      such year  as may  be determined ad      hoc by  the Central  Government  on      the recommendations  of  the  State      Government   concerned    and    in      consultation with the Commission :      Provided  that   he  shall  not  be      allotted a  year earlier  than  the      year  of   allotment  of  an  after      appointed   to   the   Service   in      accordance  with  sub-rule  (1)  of      rule 8  of the  Recruitment  Rules,      whose  length  of  service  in  the      State Civil  Service is  more  than      the length of continuous service of      the former  in connection  with the      affairs of the State."      The Government  of India  had issued  a circular/letter dated June  6, 1978,  with regard  to fixation  of seniority under Rule 3(3)(c) of the Seniority Rules of non-State Civil Service Officers  recruited to  the Service by selection. In paragraph 1 of the said circular/letter it was stated :-      "I am  directed to say that in this      Department’s       letter       No.      14014/83/76-AIS   (I)   dated   the      February 15,  1977  on  the  above-      mentioned subject  it is  laid down      that the  seniority of  a non-State      Civil Service  Officer appointed to      IAS   by    selection   shall    be      determined  in   consultation  with      UPSC on the analogy of Rule 3(3)(b)      of   the    IAS   (Regulation    of      Seniority) Rules,  1954 subject  to      the proviso  to Rule 3(3)(c) of the      Said rules."      In   accordance with  paragraph  1  of  circular/letter dated June  6, 1978  the  seniority  of  a  non-State  Civil Service officer  appointed to  the Service  by selection was required to  be determined  in consultation with UPSC on the analogy of  Rule 3(3)(b)  of the  Seniority Rules subject to proviso  to   Rule  3(3)(c)  of  the  Seniority  Rules.  The respondent has  to be  allotted the  year  of  allotment  by applying the  provisions laid  down in  Rule 3(3)(b)  of the Seniority Rules  and the proviso to Rule 3(3)(c) of the said Rules.      The letters  of the Government of India dated April 11, 1986 and July 14, 1987, whereby respondent was allotted 1977 as the  year of  allotment, are  based on  Rule 3(3)(b) read with proviso  to Rule  3(3)(c) of  the Seniority  Rules. The letter dated  April 11,  1986 proceeds  on the basis that as per the  information furnished  by the  State Government the

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post of  Associate Professor  (Civil Engineering) in the pay scale of  1200-1900 under  the State  Government held by the respondent till  My 22, 1975 can be considered as equivalent to senior scale of pay of the Service and hence the relevant date for  determination of  his seniority  in equivalence to Rule 3(3)(b)  of the  Seniority Rules  could be May 22, 1975 and Shri  Dev Das  Chhotry (RR  : 71)  is  the  junior  most regular recruitment  officer who was appointed in the senior scale of  pay of  the Service  with effect form December 20, 1974, i.e.,  on a date prior to May 22, 1975, the respondent would have  been entitled  to be  given the seniority of the year 1971  in the  Bihar Cadre  of the  Service as  per Rule 3(3)(c) of  the Seniority  Rules but, as per the information furnished by the State Government, Shri Yadu Nath Jha (State Civil Service  : 1977)  is the  junior most  officer of  the State Civil  Service who was appointed in the Service before and in comparison to the length of service of the respondent in the  State in a gazetted post, he has served in the State Civil Service  for a  longer period  and hence  as  per  the proviso to  Rule 3(3)(c) of the Seniority Rules, the year of allotment of  the respondent  cannot be  determined  earlier than 1977,  the year  of allotment of Shri Yadu Nath Jha. It would thus  appear that  the year  1977 was  assigned as the year of  allotment to  the respondent in accordance with the proviso to  Rule 3(3)(c). The said order has been quashed by the Tribunal  by its  judgment dated  September, 17, 1990 on the ground that the proviso to Rule 3(3)(c) had been held to be unconstitutional  and void by the Tribunal in the case of K.V. Nambiar.  Thus, the  only ground  on which the Tribunal has proceeded to quash the orders assigning 1977 as the year of allotment  to the respondent was that the proviso to Rule 3(3)(c) could  not be  applied since  it had been held to be unconstitutional and void in the case K.V. Nambiar. The said view of  the Tribunal  regarding the validity of the proviso to Rule  3(3)(c) was not accepted by this Court in its order dated April  8, 1991  in the  appeal filed  by the  Union of India against  the judgment  of the  Tribunal in the case of K.V. Nambiar. In the said order this Court has observed :--      "We are  inclined to  take the view      that  the   Central  Administrative      Tribunal  should  not  have  struck      down Rule  3(3)(c)  of  the  Indian      Administrative Service  (Regulation      of Seniority) Rule, 1954, merely on      the basis  that the  two  instances      which  had   come  before   it  for      consideration   were    not   being      adequately   answered   under   the      Rules. These  Rules  have  been  in      force for  almost 36  tears bad the      challenge that  has  now  come  for      consideration as  the rare instance      where   the    Rules,   it   became      difficult to  deal with the matter.      Union of India has on its affidavit      indicated     that      exceptional      situations as  arising in  the case      of the  two respondents  should  be      answered under  the residual  Rules      and if not covered under the Rules,      under the administrative powers and      for that  purpose the  Rules should      not have been struck down."      This Court, while vacating the decision of the Tribunal on the  question  of  the  vires  of  Rule  3(3)(c)  of  the

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Seniority Rules,  has sustained  the relief  granted by  the Tribunal to  K.V. Nambiar  in view  of the statement made by the learned  counsel for  the Union  of India  that the said relief may be sustained. The said decision thus reverses the view of  the Tribunal  regarding validity of Rule 3(3)(c) of the Seniority Rules.      In Union  of India  & Ors. v. G.K. Sangameshwar & Ors., 1993  Supp. (3)  SCC 697, the question regarding validity of Rule 3(3)(c) and the circular/letter dated June 6, 1978 came up for consideration before this Court. After taking note of the order  dated April  8, 1981  passed  by  this  Court  in appeals filed by the Union of India in the case K.V. Nambiar and the  respondent this  Court upheld  the validity  of the proviso to Rule 3(3)(c) and has observed :-      "We   find    nothing   unjust   or      unreasonable  in   this   provision      whereby  the   seniority   of   two      officers  (one   belonging  to  the      State Civil Service and the other a      non-State  Civil  Service  Officer)      who have  been found  suitable  for      appointment to  the Service  is  so      fixed  that   a   non-State   Civil      Service  officer  does  not  become      senior to  a  State  Civil  Service      officers whose length of service in      the State  Civil  Service  is  more      than  the   length  of   continuous      service  in   connection  with  the      affairs of  the State  of the  non-      State Civil  Service officer."  [p.      706]      Shri Salve  has urged  that the  said decision  in G.K. Sangameshwar &  Ors. (supra)  needs reconsideration  and has contended that under Rule 8(2) of the Recruitment Rules only a  person  of  outstanding  ability  and  merit  serving  in connection with the affairs of the State who is not a member of the  State Civil  Service of  that State  but who holds a gazetted post  in a substantive capacity can be appointed to the Service  by selection  and, therefore,  in the matter of inter se  seniority a  non-State Civil Service officer and a State Civil Service officer cannot be compared and seniority of a  non-State Service  officer cannot be made dependent on the seniority  of a  State Civil  Service officer. We do not find any  merit in  this contention. The State Civil Service is composed  of officers  who are entrusted with the task of public administration.  The administrative experience gained by them  on various  posts involving  general administration enables an  officer in the State Civil Service to tackle the more responsible  administrative functions  on his promotion to the  Service. A non-State Civil Service officer would not be having  the same  degree of  administrative exposure as a State  Civil   Service  officer.  The  State  Civil  Service constitutes the  main source  for promotion  to the  Service because under  the Recruitment Rules the two principal modes for recruitment to the Service are (i) by direct recruitment by  competitive   examination,  and  (ii)  by  promotion  of substantive members  of State Civil Service. The appointment of non-State  Civil Service  officers is  limited to a small proportion (15%)  of the posts falling in the quota reserved for recruitment by promotion and selection. [See : Rule 9(1) of the Recruitment Rules]. In view f the limited degree of a administrative exposure the experience gained by a non-State Civil Service  officer cannot be equated with the experience gained by  a State Civil Service officer. For the purpose of

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seniority in  the Service the length of service of non-State Civil Service officer cannot, therefore, be equated with the length of  service of  a State  Civil Service  officer.  The proviso to  Rule 3(3)(c)  f the  Seniority Rules  proceeds n this basis  since it provides that a non-State Civil Service officer shall  not be  allotted a year earlier than the year of allotment  of a  State Civil Service officer whose length of service  in the  State Civil  Service is  more  than  the length of  continuous service  of a  non-State Civil Service officer. The  requirement of  Rule 8(2)  of the  Recruitment Rules that  selection fro  appointment to  the Service  from amongst non-State  Civil Service officers is to be made of a person of outstanding ability and merit only means that only the  best   among  such   officers  would  be  selected  for appointment to the Service. The said provision does not have any bearing  on the  nature of the experience gained by such person prior  to his  appointment to  the  Service  for  the purpose of  seniority in  the Service.  The proviso  to Rule 3(3)(c) of  the Seniority  Rules does not, therefore, suffer from  any   infirmity  and   no  ground   is  made  out  for reconsideration of the decisions of this Court upholding the validity of the said proviso.      It must,  therefore, be held that the respondent has to be assigned  the year  of allotment  in accordance  with the proviso to  Rule 3(3)(c) of the Seniority Rules. The learned counsel for the respondent has not been able to show that if the proviso  is applied  the respondent  could be assigned a year  of   allotment  earlier   than  the   year  1977.  The determination of  1977 as  the  year  of  allotment  of  the respondent under  the letters  of the  Government  of  India dated April  11, 1986  and July  14, 1987 was, therefore, in accordance with  Rule 3(3)(c)  read  with  proviso  and  the Tribunal was in error in quashing the said orders.      In the  circumstances, the  judgment  of  the  Tribunal dated September  17, 1990  in O.A.  No. 424 of 1988 filed by the respondent  quashing the  orders regarding determination of the  year of allotment of the respondent contained in the letters dated  April 11, 1986 and July 14, 1987 is set aside and the said O.A. No. 424 of 1988 is dismissed. The order of the Central  Government dated  August  19,  1991  which  was passed in compliance with the judgment of the Tribunal dated September 17,  1990 is also set aside. The Appeal is allowed accordingly. No order as to costs.