BHUPENDRA NATH HAZARIKA Vs STATE OF ASSAM .
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-008514-008515 / 2012
Diary number: 35822 / 2008
Advocates: PRASHANT BHUSHAN Vs
CORPORATE LAW GROUP
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8514-8515 OF 2012 (Arising out of S.L.P. (Civil) Nos. 19707-19708 of 2009)
Bhupendra Nath Hazarika and another ... Appellants
Versus
State of Assam and others ... Respondents
WITH
CIVIL APPEAL NO.8516 OF 2012 (Arising out of S.L.P. (Civil) No. 963 of 2010)
Bibekananda Das ... Appellant
Versus
State of Assam and others ... Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
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2. In these appeals, the challenge is to the common
judgment and order dated 9.9.2008 passed by the Division
Bench of the High Court of Gauhati, Assam in WA Nos. 448
of 2004, 459 of 2004 and 465 of 2004 whereby stamp of
approval has been given to the judgment and order dated
19.11.2004 passed by the learned single Judge in WP(C)
Nos. 7482 of 2002, 7843 of 2002, 7564 of 2002, 8081 of
2002 and 298 of 2003 whereunder the learned single Judge
had maintained the order dated 11.10.2002 passed by the
Assam Administrative Tribunal, Guwahati (for short “the
tribunal”) in Appeal Case No. 79ATA of 1999, and dismissed
WP(C) Nos. 4028 of 2003, 4129 of 2003 and 1031 of 2003
which were preferred directly for issuance of mandamus
commanding the respondent authorities to consider the
previous services rendered by the petitioners therein prior to
their appointments in the Assam Police Service (Junior
Grade) in the year 1993 and to determine their inter se
seniority in the promotional cadre accordingly and further
disposed of WP(C) 69 of 2003 preferred by an Additional
Superintendent of Police, Guwahati for quashing of the
appointment to the promotional post of the private
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respondents therein on the foundation that they had been
promoted in violation of the provisions of the Assam Police
Service Rules, 1966 (for brevity “the 1966 Rules”).
3. Shorn of unnecessary details, the facts which are
requisite to be stated are that the Assam Public Service
Commission (for short “the Commission”) issued an
advertisement No. 9/92 dated 23.6.1992 inviting
applications for preliminary examination for the Combined
Competitive Examination, 1992-93 for selecting candidates
for various posts and services including thirty vacancies in
the Assam Police Service (Junior Grade) (for short “the APS”)
as requisitioned by the Commissioner-cum-Secretary to the
Government of Assam in the Department of Personnel on
5.9.1992. On 29.8.1992, the Commission published
another advertisement No. 12/92 inviting applications for
filling up of 20 posts in the APS under Rule 5(1)(c) of the
1966 Rules. There is no dispute that the initial 30
vacancies were put in the compartment of “regular batch” or
“direct recruitment” and the other 20 vacancies, which were
sought to be filled up by way of special drive, were kept in
the category of “special batch” or “promotional recruits”.
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The main examination for the regular batch was held on
15.11.1992 for total marks of 1400. The examination for
the special batch was held on 22.11.1992 for 650 marks.
The Commission declared the result in respect of regular
batch on 23.4.1993 and, vide letter dated 24.4.1993,
recommended 30 candidates for appointment in order of
merit. Despite the recommendation by the Commission, no
appointment was made till 13.8.1993. At this juncture, the
Commissioner-cum-Secretary to the Government of Assam
in the Department of Home requested the Commission to
furnish the select list of the special recruits at the earliest.
On the basis of the aforesaid letter of request, the
Commission sent its recommendations in respect of the
candidates belonging to the special batch and on the basis
of the said recommendation, vide notification No.
HMA.478/86/Pt-I/17 dated 3.7.1993, the respondent Nos.
6 to 24 before the tribunal were appointed. The respondent
No. 25 was appointed on 31.81994. Thereafter, the
Competent Authority, vide notification No. HMA.110/93/43
dated 13.8.1993, appointed 28 persons from the regular
batch. As the recruits of the special batch were appointed
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earlier, they were treated senior to the recruits belonging to
the regular batch.
4. The facts, as further uncurtained, are that the
determination of seniority came to the notice of the recruits
of the regular batch at the time of their confirmation of
service in the year 1999. Being dissatisfied with the action
of the authorities, they immediately submitted a
representation. When the representation was pending
consideration, a provisional gradation list showing the inter
se seniority as on 31.12.1992 was published on 12.3.1999.
In the said provisional gradation list, the recruits of the
special batch were shown as senior to the recruits of the
regular batch. As warranted, the recruits belonging to the
regular batch filed their objections to the fixation of
seniority on 24.9.1999, but without publishing the final
gradation list, the respondent No. 3, namely, the Secretary
in the Department of Home, promoted 14 officers belonging
to the special batch and 16 officers belonging to the regular
batch to the Senior Scale of APS (Grade-II). In the
promotional order, the officers belonging to the regular
batch were shown below the officers belonging to the special
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batch. Because of the aforesaid situation, the direct
recruits invoked the jurisdiction of the tribunal for the
apposite determination of seniority claiming to be senior to
the respondent Nos. 6 to 24.
5. The claim of the appellants before the tribunal was
resisted by the respondent-State and the private
respondents therein on many a ground including the one
that the appeal was barred by limitation. It is worthy to
note that in an affidavit, the Secretary to the Commission
asseverated that the Government had not consulted the
Commission before publishing the provisional gradation list;
that when the selection process for the regular batch was
already underway, there was no justification whatsoever to
go for special recruitment; that the recourse taken to fill up
the posts by way of special recruitment was in gross
violation of the rules and procedure inasmuch as all
vacancies could have been filled up by resorting to the
usual and regular procedure of recruitment; that the
Competent Authority of the State Government should have
acted on the list sent by the Commission relating to the
regular candidates in quite promptitude but delayed it for
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no apparent reason and called for the recommendation for
the special batch and issued letters of appointment in their
favour which exhibited unwarranted interest; and that the
inter se seniority deserved to be refixed and the regular
batch should be treated to be senior to the special batch.
6. The tribunal dealt with the issue of limitation and
observed that the appeal did not concern itself with the
validity or propriety of the appointments of the respondent
Nos. 6 to 25 but fixation of inter se seniority and hence, the
appeal was not barred under the provisions of the Assam
Administrative Tribunals Act, 1977. It further opined that it
was curious that despite the fact that the recommendation
in respect of the regular batch had already been forwarded
to the Government by the Commission, no steps were taken.
The aforesaid act of the authority, observed the tribunal, on
one hand, exposited lackadaisical attitude in dealing with
the case of the regular batch and, on the other,
unreasonable alacrity in the appointment of the special
batch. The tribunal attributed motive to such an action and
proceeded to opine that there was no administrative
decision by the appropriate authority for making
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appointment to the service by resorting to the process of
special recruitment in preference to general recruitment.
7. It is apt to note that the tribunal referred to various
departmental communications including the letter dated
17.8.1991 which emanated from the Office of the DGP
proposing to enlist 20 Deputy Superintendent of Police from
other departments under Rule 5(1)(c) of the 1966 Rules.
The tribunal referred to Rules 5, 7 and 8 of the 1966 Rules
and came to hold that a close perusal of the provisions of
the service Rules clearly show that recruitment by resorting
to clause (c) of sub-rule (1) of Rule 5 should be made only in
special cases and at all time such recruitment must be
limited only to 5 per cent of the total number of posts in the
cadre and such special recruitment must be limited only to
one post in a particular year. It further stated that the 1966
Rules are quite silent as regards carry forward of such posts
and, therefore, there could not have been accumulation of
vacancies to be filled up by resorting to the provision
contained in clause (c) of sub-rule (1) of Rule 5 and as such,
the question of selecting and appointing as many as 20
persons in a year did not arise. The tribunal further held
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that as per Rule 8(1), the Governor is required to call for
recommendations from the recommending authorities for
the purpose of recruitment to the service under clause (c) of
sub-rule (1) of Rule 5 and the recommending authorities are
also required to submit recommendations in respect of the
persons having regard to the laid down criteria but in the
instant case, the said procedure was given a total go by
which is not permissible. The tribunal further noticed that
Rule 8(2), which is mandatory, provides that all the
recommendations are required to be submitted before the
selection committee constituted under Rule 7(1) and the
selection committee is required to interview the
recommended candidates and prepare the select list and,
therefore, the Commission, in no circumstance, could have
been entrusted with the responsibility of interviewing,
testing, selecting and recommending any candidate for
special recruitment under clause (c) of sub-rule (1) of Rule
5. In this backdrop, the tribunal observed that, admittedly,
all the processes undertaken by the Commission and the
third respondent were in gross violation of the mandatory
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provisions of the Rules and hence, the selection was not
valid.
8. After so stating, the tribunal proceeded to hold that as
the respondent Nos. 6 to 25 had been appointed in violation
of the rules, they could not be treated as regular recruits
within the meaning of Rule 5(1)(a) of the 1966 Rules. It also
stated that had the appeal been filed earlier in a different
form, the selection and appointment of the special batch
recruits could have possibly been set aside. Eventually, the
tribunal placing reliance on State of U.P. v. Rafiquddin
and others1 and Dalilah Sojah v. State of Kerala and
others2, came to hold that due to unreasonable delay and
inaction on the part of the Government in notifying the
appointments, the regular batch candidates, who were
earlier recommended by the Commission, could not be put
in jeopardy and lose their seniority and accordingly directed
for refixation of the seniority list. It further directed that
the regular batch shall be allowed consequential benefits
with effect from the date on which the senior most member
1 AIR 1988 SC 162 2 (1998) 9 SCC 641
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of the special batch availed of any benefit even by creating
supernumerary duty post in the cadre.
9. Being dissatisfied with the order passed by the
tribunal, as has been stated earlier, certain writ petitions
were preferred and some writ petitions were directly filed
before the High Court seeking quashment of the
appointment of the private respondents as Deputy
Superintendent of Police. The prayer in the other batch of
writ petitions was to treat the direct recruits as per the rules
regard being had to their date of appointment and to extend
the benefit of earlier services as stipulated under Rule 18 of
the 1966 Rules.
10. The learned single Judge adverted to the facts in
detail, the proposal before the Cabinet for appointment of
20 officers in the post of Deputy Superintendent of Police by
taking resort to Rule 5(1)(c) of the 1966 Rules and basically
posed three questions, namely, (i) whether the appeal
preferred before the tribunal was barred by limitation; (ii)
whether the members of the regular batch could be treated
as senior when their appointments were violative of the
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recruitment process as envisaged under the relevant
recruitment rules; and (iii) whether the tribunal was
justified in directing rectification in the gradation list when
there was no appeal seeking removal of the special batch
recruits being in violation of the rules. Be it noted, as far as
question No. (iii) is concerned, the learned single Judge
framed five ancillary questions.
11. While dealing with the facet of limitation, the learned
single Judge referred to the relevant provisions of the Act
and expressed the view that the appellants before the
tribunal having the remedy which was available to them in
terms of the directions contained in the circular dated
1.4.1999 were entitled to prefer the appeal in terms of the
proviso to sub-section (2) of Section 4 of the AAT Act, 1977
and hence, the appeal was not barred by limitation.
12. Adverting to the facet of appointment, the learned
single Judge scanned the anatomy of the 1966 Rules and
came to hold that the number of persons who got selected
as members of the special batch were not eligible for
consideration for appointment in terms of Rule 5(1)(c) and
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further the procedure engrafted under the said sub-rule was
not followed and, in fact, was mutilated and flouted in every
conceivable manner leading, eventually, to the appointment
of the members of the special batch. Dwelling upon the
issue that the appointments were arbitrary, malafide and
discriminatory vis-à-vis the appointment of the direct batch,
the learned single Judge referred to the factual matrix
pertaining to the recommendations sent for recruitment by
special drive, the Cabinet Memorandum and the Cabinet
decision and eventually held that notwithstanding the fact
that the proposal for recruitment of twenty Dy.
Superintendents of Police, as a special case, was submitted
by the Home Department and the Government did not agree
to the proposal, yet the decision to make the recruitment
and the manner and modalities for holding of the interview
and the test for the purpose of recruitment of the Special
Batch was taken in the chamber of the Chairman of the
Commission, on the basis of a discussion held between the
then DGP, Assam, and the Chairman of the Commission
and, therefore, the decision, so reached, could not be
termed as a decision of the Government. He also observed
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that the members of the Special Batch were selected
throwing over-board, in entirety, the relevant recruitment
rules. Regard being had to chronology of events leading to
the appointment of the members of the Special Batch, the
learned single Judge opined that the entire exercise for
selecting the Special Batch was wholly de hors the relevant
recruitment rules. The urgency shown by the Government
to obtain the result of the examination held in respect of the
Special Batch was an indication that the Government was
waiting, for no justified and valid reason, to, first, make
appointment of the members of the Special Batch, though
selected in complete disregard of the Rules, and, then, issue
appointment in respect of the members of the Direct Batch,
whose process of selection was never questioned. After so
stating, the learned single Judge held that contrary to the
provisions of Rule 5(1)(c), which prescribes upper age limit
for selection to be 35 years and throwing to the wind the
very purpose for which special recruitment was sought to be
made, the age was relaxed to 45 years and persons, who
were born in 1942, came to be selected in the year 1992,
and thereby many of the officers recruited under the special
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drive were as old as 50 years, whereas proposal for the
special drive was made on the pretext of recruiting young
officers. He also opined that the whole process of selection
of the special batch recruited was malafide and arbitrary.
13. After so stating, the learned single Judge dealt with
issues whether the appointments were ab-initio void,
whether the relevant rules of recruitment were relaxed in
respect of the special batch at the time of making their
recruitment and what was the permissible limit of
relaxation and whether there can be deemed relaxation.
Delving into the said aspects, the learned single Judge
ruled that while appointing the special batch, the rules of
recruitment were completely shelved, no order of relaxation
was passed under Rule 23 relaxing the provisions contained
in Rule 5(1)(c) of the 1966 Rules; and that there could not
have been any deemed relaxation. The learned single Judge
referred to various pronouncements of this Court with
regard to relaxation and deemed relaxation and expressed
the view that the Special Batch was recruited, ostensibly,
on the ground that the department was in need of young
officers in the grade of Deputy Superintendent of Police, but
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the officers recruited were as old as 50 years, and, thus, the
very purpose for which the proposal was mooted stood
defeated. The writ court discussed the ratio laid down in
Bachan Singh v. Union of India3, Narender Chadha v.
Union of India4 and J.C. Yadav v. State of Haryana5 and
held that contrary to the facts of the case of J.C. Yadav
(supra), wherein the relaxation of the rules could be
justified by the Government, the State-respondent had, in
the obtaining factual matrix, miserably failed to show any
justification to relax the rules and in any case could not
have relaxed the rules to such an extent to make it
nugatory. It was also observed that when the Cabinet
Memorandum had failed to receive the approval of the
Cabinet, the then DGP, Assam, in consultation with the
Chairman of the Commission, could not have, through the
back-door and with the help of an authority like the
Commission, flouted the relevant rules and made the
appointments.
3 (1972) 3 SCC 489 4 (1986) 6 SCC 157 5 (1990) 2 SCC 189
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14. The learned single Judge ruled that the appointment in
the promotional cadre was de hors the rules and, therefore,
the court cannot direct that the period of service rendered in
the promotional post by virtue of illegal promotional
appointment should be counted for the purpose of seniority.
Relying on the pronouncement in Raffiquddin (supra), the
learned single Judge held that the case in hand is more akin
to the facts of Raffiquddin (supra) and ruled that it is
possible that without setting aside and quashing the
appointment of an irregular appointee, the Court or tribunal
may direct the appointing authority to treat a regular
appointee in service, though appointed later in point of time
than the irregular appointee, as senior to the irregular
appointee.
15. It is worthy to note that the learned single Judge
referred to Rule 18 of the 1966 Rules which clearly states
that the seniority of the members of the service shall be
determined on the basis of their respective dates of
appointment to the service. He distinguished the
applicability of Rule 18 and ultimately maintained the order
passed by the tribunal and dismissed the writ petitions
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challenging the order of the tribunal. It is apt to note that in
WP(C) 69 of 2003 wherein the petitioner had directly
approached the High Court for quashment of the
appointments of the special batch recruits, the learned
single Judge observed that the appointments of the special
batch deserved to be set aside and quashed, but he
refrained from doing so considering the period of service
which they had rendered.
16. Being dissatisfied with the aforesaid order, the special
recruits preferred WA Nos. 448 of 2004 and 465 of 2004.
WA 459 of 2004 was filed by the recruits under Rule 5(1)(a)
of the 1966 Rules. The Division Bench noted the facts,
adverted to the orders passed by the tribunal and the
learned single Judge, dealt at length with the submissions
canvassed by the learned counsel for the parties and came
to hold that the tribunal had jurisdiction to deal with the
appeals and thereafter, dealing with the stand that the
appointments having not been challenged the delineation
thereof by the tribunal and the learned single Judge was
barred by the doctrine of res judicata, repelled them on the
base that the memorandum of appeal before the tribunal
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had graphically challenged the appointments to be non est
being in violation of the rules though that there was no
prayer for cancellation of the appointments. The Division
Bench analysed the scheme of the rules and stated that
Rule 5(1)(c) envisages a selection in special cases from
amongst the limited categories of persons referred to and the
number of vacancies to be filled up by that procedure has
also been restricted. The Division Bench referred to Rule 8
and regarded it as unequivocal on the conditions of
eligibility, commencement of the process contemplated and
the culmination thereof, and observed that the assessment
of eligibility by the Recommending Authority of the person is
a sine qua non for consideration of his candidature to be
recruited. The candidate, as per the mandate of Rule 8, has
to be of outstanding merit and ability, possessing the
academic qualification as prescribed by Rule 10, should not
be above 35 years of age on the first day of the year in which
the recommendations are called for and should have not less
than two years of experience in duties comparable in status
and responsibility to that of the Deputy Superintendent of
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Police or 8 years of experience in duties comparable in
status and responsibility to that of the Inspector of Police.
17. After so stating, the Division Bench referred to various
authorities and, eventually, came to hold that though the
appointments of the special recruits had been made in
deviation of the Rules, yet the same cannot by any means be
branded as de hors any procedure whatsoever known to
public employment. Their induction of the special recruits
cannot be equated with ad hoc, casual or temporary
recruitments or an entry through the backdoor and hence,
their appointment cannot be regarded as de hors the rules.
Dealing with the aspect of seniority it ruled that their
appointments not being in observance of the statutory
provision stricto sensu, the fixation of their batch wise
seniority over the direct recruits of the same year is
impermissible and the benefit as stipulated under the
proviso to Rule 18(1) was not extendable.
18. The Division Bench further opined that at such a
belated time their appointments could not be annulled. In
the ultimate analysis, the Division Bench concurred with
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the view expressed by the learned single Judge on the issue
of fixation of seniority.
19. It is worthy to note that in compliance of the judgment
and order passed by the learned single Judge, a notification
No. HMA.154/2004/Pt.1/176 was issued on 6.12.2004
wherein the direct recruits of the 1993 batch were placed
above the special recruits of the same year in the APS Senior
Grade-II. The Bench also perused file No. H.M.A. 10/99 of
the Home Department from which it transpired that the
names of the candidates to the promotional posts were
recommended in order of preference following the same
seniority in which their names appeared in the provisional
gradation list dated 12.3.1999 as the Selection Committee
did not find any reason justifying supersession of a senior
by a junior. The Division Bench noticed that as the inter se
seniority of promotees was a replication of that in the
provisional gradation list which has been unsettled, the
challenge to the notification dated 6.12.2004 was
unsustainable. Being of this view, the Division Bench
dismissed all the appeals.
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20. We have heard Mr. Prashant Bhushan, learned counsel
representing the special batch recruits, and Mr. V. Shekhar,
learned senior counsel appearing for the direct recruits in all
the appeals.
21. The fundamental questions that emanate for
consideration before this Court are, namely, whether the
appointments have been made in violation of the rules;
whether the selection of the special batch recruits if
accepted to be in violation of the rules, can be treated to be
de hors the rules; and whether the concept of relaxation has
been extended to them or is extendable to them and further
whether they can avail the benefit under the second proviso
to Rule 18 of the Rules and whether the tribunal as well as
the High Court is justified in refixing the seniority without
quashing the appointment of the special batch recruits.
22. Regard being had to the aforesaid issues, we think it
seemly to refer to certain authorities in the field. In Roshan
Lal and others v. International Airport Authority of
India and others6, a two-Judge Bench, while entertaining a
petition under Article 32 of the Constitution, held that when
6 1980 (Supp) SCC 449
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the appointments were made in 1975 and the writ petition
was filed in 1978, it would not be justified in reopening the
question of legality of the appointments of the respondents
therein. The Bench also noticed that the prayer in the writ
petition was also confined primarily to the seniority list and
the consequences flowing from the seniority list.
23. We have referred to the said pronouncement only for
the purpose that before the tribunal, the challenge was not
for the quashment of the appointments on the foundation
that they were made in violation of the rules and the
propriety in the matter of appointment of the special recruits
was not maintained and that apart, the appeal was filed
after a span of nine years after the selection and
appointment and hence, the principle stated therein is
squarely applicable to the case at hand.
24. Be it noted, the tribunal as well as the High Court has
placed reliance on Rafiquddin and others (supra) to refix
the seniority and justify the direction for refixation of
seniority by putting the direct recruits over and above the
special recruits on the foundation that it was necessitous to
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strike the balance. In Rafiquddin case (supra), the U.P.
Public Service Commission published a notification on
September 3, 1970 inviting applications for recruitment to
85 posts of Munsifs. It recommended names of 46
candidates for appointment on October 25, 1971. The State
Government requested the Commission to recommend some
more candidates by suggesting that minimum of 40% marks
may be reduced to 35%. Considering the said request, the
Commission forwarded another list of 33 candidates on April
25, 1972. All the 79 candidates were appointed between
May 1972 to June 12, 1973. Thereafter, on July 17, 1973, a
notification was issued determining the inter se seniority of
all the 79 candidates under Rule 19 of the U.P. Civil Service
(Judicial Branch) Rules, 1951. In the meantime, the UP
Public Service Commission held another competitive
examination for appointment to the posts of 150 Munsifs
and, eventually, they were appointed on different dates
between 1975 to 1977. As the factual narration would
show, a proposal was sent by the State Government to the
Commission requesting it to reconsider the result of the
examinations of 1967, 1968, 1969 and 1970 for
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appointment to the service of persons/candidates who might
have obtained 40% of marks or more in the aggregate even if
they had failed to secure the minimum marks in the viva
voce test. The Commission declined to accede to the said
request. A meeting was held by the High Level Committee
and, eventually, a third list of 37 candidates was sent by the
Commission for the aforementioned years in which list the
name of Rafiquddin featured. As out of 37 candidates, 16
had already appeared in the 1972 examination and had
been selected, the Government requested the Commission to
select 16 more candidates from the 1972 examination. In
pursuance of the Government’s request, the Commission
forwarded the list of 16 candidates for appointment. In this
factual matrix, in March, 1977, the State Government
published a seniority list of successful candidates of the
competitive examination of 1970. The candidates belonging
to the third list made a representation to the High Court for
determining their seniority in accordance with Rule 22 of the
Rules on the footing that they were recruited to service in
pursuance of the 1970 examination and, therefore, they
were entitled to the seniority as candidates belonging to that
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examination irrespective of their appointment made in 1975.
They claimed seniority above the recruits of the 1972
examination. As the representation was rejected, a writ
petition was filed and the High Court allowed the same on
the ground that as the third category candidates were
appointed on the basis of the result of the 1970
examination, they were to be treated as senior in accordance
with the stipulates engrafted under Rule 22 of the Rules.
While dealing with such a situation, this Court scanned the
anatomy of the Rules and its purport, the role of the
Commission and held that the selection and appointment of
21 Munsifs at the later stage was invalid. However, it
declined to strike down their appointments in view of the
fact that they had already rendered 12 years of service.
25. After so holding, the Bench proceeded to deal with the
issue as to what seniority should be assigned to the
unplaced candidates who were appointed. In that context,
the Bench came to hold that as they were appointed not in
accordance with the rules, they could not be treated as
selectees under the 1970 examination for the purpose of
determining their seniority under Rule 22 of the Rules and,
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accordingly, the Bench directed that the said candidates
have been placed below the candidates of recruits of the
1972 examination. In the 1972 examination, 16 candidates
were appointed to the service on the basis of the result of
the 1972 examination and their appointment did not suffer
from any legal infirmity and they were entitled to seniority of
the recruits of the 1972 examination on the basis of their
position in the merit list but they were not entitled to be
treated as senior on the basis of the 1970 examination.
26. We have referred to the facts in detail and what this
Court had ultimately held only for the purpose that where
recruitment of service is regulated by the statutory rules, the
recruitment must be made in accordance with those rules
and if any appointment is made in breach of the rules, the
same would be illegal and the persons so appointed have to
be put in a different class and they cannot claim seniority.
27. In The Direct Recruit Class-II Engineering Officers’
Association and others v. State of Maharashtra and
others7, the Constitution Bench was dealing with the issue
of seniority between direct recruits and the promotees under
7 AIR 1990 SC 1607
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the Maharashtra Service of Engineers (Regulation of
Seniority and Preparation and Revision of Seniority Lists for
Specified Period) Rules, 1982. The Constitution Bench
referred to the decision in A.K. Subraman v. Union of
India8 and ruled that if a rule fixing the ratio for
recruitment from different sources is framed, it is meant to
be respected and not violated at the whims of the authority.
It ought to be strictly followed and not arbitrarily ignored. A
deviation may be permissible to meet the exigencies. The
Constitution Bench posed the question as to what would be
the consideration if the quota rule is not followed at all
continuously for a number of years and it becomes
impossible to adhere to the same. The Constitution Bench
opined that if the rule fixes the quota and it becomes
impracticable to act upon, it is of no use insisting that the
authorities must continue to give effect to it. But the
Government, before departing from the rule, must make
every effort to respect it and only when it ceases to be
feasible to enforce it, then it has to be ignored. In such a
situation, if appointments from one source are made in
excess of the quota but in a regular manner and after 8 AIR 1975 SC 483
2
Page 29
following the prescribed procedure, there is no reason to
push down the appointees below the recruits from other
sources who are inducted in the service subsequently. A
reference was made to the rules that permitted the
Government to relax the provisions fixing the ratio. In the
said case, the Court observed that there was no justification
to urge lack of bona fide on the part of the State.
Eventually, the Bench summed up its conclusions and we
proceed to reproduce some of them which are relevant for
our purpose: -
“(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
xxx xxx xxx
2
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(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.”
28. In Madan Gopal Garg v. State of Punjab and
others9, the controversy related to inter se seniority of
promotees and direct recruits in respect of the posts,
namely, District Food and Supplies Controller and Deputy
Director, Food and Supplies in the State of Punjab governed
by the Punjab Food and Supplies Department (State Service
Class II) Rules, 1966. After analyzing the facts and the
appointments in excess of quota, the Court observed that
the appointment of the controller was in excess of the quota
and it continued to be so till the respondent No. 2 therein
9 1995 Supp. (3) SCC 366
3
Page 31
was appointed by direct recruitment. In that context, the
Bench opined: -
“Once it is held that the appointment of the appellant was in excess of the quota fixed for promotees and officers appointed by transfer, the said appointment has to be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotion quota against which the said appointment can be regularized. In other words, any such appointment in excess of the quota has to be pushed down to a later year when it can be regularized as per the quota and such an appointment prior to regularization cannot confer any right as against a person who is directly appointed within the quota prescribed for direct recruits.”
29. In Maharashtra Vikrikar Karamchari Sangathan
v. State of Maharashtra and another10, a two-Judge
Bench took note of the fact that when promotions are made
in excess of the prescribed quota and the Government had
not taken any conscious decision in accordance with law to
treat the promotions of excess promotees on regular basis, it
would be wrong to assert that such promotions were on
regular basis. In that context, the Bench further proceeded
to state thus: -
10(2000) 2 SCC 552
3
Page 32
“Lastly, it was contended on behalf of the appellants that some of the appellants have put in more than 17 years of service when a few of the direct recruits were either schooling and/or not born in the cadre. If the appellants were to be pushed down, it would cause great hardship to them. We are unable to subscribe to this contention because if there is patent violation of the quota rule, the result must follow and the appellants who remained in the office for all these years cannot take the advantage of this situation. This submission is, therefore, devoid of any substance.”
30. In D. Ganesh Rao Patnaik and others v. State of
Jharkhand and others11, a three-Judge Bench was dealing
with inter se seniority between the direct recruits and the
promotees under the Bihar Superior Judicial Service Rules,
1946. The Bench also dealt with the concept of temporary
posts and the computation of posts under Rule 6 therein,
the definition of cadre and posed a question whether the
temporary posts of Additional District and Sessions Judges
are to be included in the cadre. After referring to various
decisions, the Court opined that for determining the quota of
direct recruits, both the temporary and permanent posts
have to be counted and taken into consideration and their
quota cannot be confined to permanent posts alone. In the
11 (2005) 8 SCC 454
3
Page 33
said case, the promotees had exceeded their quota and
entrenched into the quota of direct recruits and, in that
context, the Court held that the promotion given to the
promotees was not in accordance with law. The Court
further proceeded to state that it did not lie in the mouth of
the respondent therein to contend that the quota rule had
broken down or that though their promotions were made
beyond the quota fixed for promotees, yet the same should
be treated not only perfectly valid but also in a manner so as
to give them the benefit of seniority over the direct recruits.
Eventually, the Bench ruled that the inevitable conclusion
was that the contesting respondent could not claim seniority
over the appellant.
31. We have referred to the aforesaid pronouncements to
restate the legal principle that if the quota rule has been
broken down, the appointee should not be pushed down
below the appointees from other source; but, the
Government before departing from the rule must make every
effort to respect it and then only it may proceed to appoint
from other source.
3
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32. At this juncture, it is necessary to state that the
decision in The Direct Recruit Class II Engineering
Officers’ Association (supra) was clarified by a three-Judge
Bench in State of W.B. and others v. Aghore Nath Dey
and others12 as the later Bench perceived an apparent
contradiction in conclusions (A) and (B). While clarifying,
the Bench has stated thus: -
“19. The constitution bench in Maharashtra Engineers case (supra), while dealing with Narender Chadha (supra) emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus: (SCC p. 726, para 13)
“We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.”
20. The constitution bench having dealt with Narender Chadha (supra) in this manner, to indicate the above principle, that decision cannot be construed to apply to cases where the initial appointment was not according to rules .
xxx xxx xxx
12 (1993) 3 SCC 371
3
Page 35
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.”
Thereafter, the Bench proceeded to state as follows: -
“Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stopgap arrangement for fixed period, as expressly stated in the appointment order itself.”
[Emphasis supplied]
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33. Recently, in State of Haryana and others v. Vijay
Singh and others13, the question arose with regard to the
fixation of seniority in the backdrop of ad hoc initial
appointment made de hors the statutory rules but later on
services were regularized by the State Government. The
Court took note of the fact that the respondents therein were
neither appointed by the competent authority on the
recommendations made by the Board which was constituted
by the Governor of Haryana nor were they placed on
probation as required under the rules and, therefore, their
ad hoc period could not be counted for the purpose of
fixation of seniority. Thus, emphasis was laid that when
appointment is made without following the procedure
prescribed under the rules, the appointees are not entitled
to have the seniority fixed on the basis of the total length of
service. In essence, it has been ruled that when the
appointment is made de hors the rules, the appointee
cannot claim seniority even if his appointment is later on
regularized.
13 (2012) 8 SCC 633
3
Page 37
34. Regard being had to the aforesaid enunciation of law
pertaining to fixation of seniority when the initial
appointment is made in breach of rules and further
departure from provision pertaining to quota in their
essential nature, it is apposite to refer to the relevant rules
of the 1966 Rules. Rule 4 defines the ‘Cadre’. Rule 4(1)(a)
deals with the categories of posts in the junior grade and
Rule 4(1)(b) deals with the senior grade posts. Rule 5
provides for the recruitment and procedure of selection, etc.
Rule 5(1), being pertinent, is reproduced below: -
“5. Methods of recruitment to the service. (1) Recruitment to the service, after the commencement of these rules, shall be by the following methods, namely:
(a) by a competitive examination conducted by the Commission;
(b) by promotion of confirmed Inspectors of Police; and
(c) by selection, in special case, from amongst –
(i) persons other than Inspectors of Police serving in connection with the affairs of the Government; and
(ii) other persons having qualifications and experiences eminently suitable for service in the Police Department in the rank
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of Deputy Superintendent of Police :
Provided that fifty per cent of the total number of posts in the cadre shall be filled up by recruitment under Cls. (a) and (c) and the other fifty per cent exclusively under Cl. (b), and that the number of posts filled up under Cl. (c) above shall not at any time exceed five per cent of the total number of posts in the cadre and one post in any particular year.”
35. On scanning of Rule 5(1), it is evident that various
methods have been stipulated for recruitment. In the case
at hand, the direct recruits have been recruited by way of
competitive examination conducted by the Commission. The
special batch has been selected under Rule 5(1)(c). In that
context, the proviso to Rule 5(1) of the 1966 Rules is
significant. It clearly lays a postulate that the number of
posts filled up under clause (c) shall not, at any time, exceed
five per cent of the total number of posts in the cadre and
one post in any particular year. As has been stated
hereinabove, there was a requisition for 20 posts to be filled
up by special drive. On a query being made during hearing,
it was fairly conceded before us that five per cent in the
cadre could not have exceeded four posts. Thus, there has
been selection in excess of the quota provided in the Rule
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Page 39
and nothing had been shown to justify the departure since
nothing really could have been demonstrated as the
commission had already recommended the names of the
candidates meant for direct recruits.
36. Rule 8 deals with recruitment by selection. It is
reproduced hereunder: -
“8. Recruitment by selection. (1) The Governor may, from time to time, for the purpose of recruitment to the service under Cl. (c) of sub-R. (1) of R. 5, call upon the recommending authorities to submit recommendations in respect of persons who-
(a) are of outstanding merit and ability;
(b) have to their credit not less than 2 years of experience in duties comparable in status and responsibility to that of Deputy Superintendent of Police or 8 years of experience in duties comparable in status and responsibility to that of Inspectors of Police;
(c) possess the academic qualification prescribed under R.10;
(d) are not above the age of 35 years on the 1st day of the year in which the recommendations are called for; and
(e) are otherwise eligible, in the opinion of recommending authorities to be appointed to the service.
3
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(2) On receipt of the recommendations, the Governor shall refer them and also simultaneously send the character rolls/ testimonials of character and service records/other relevant records of the persons recommended to the committee which will, after examination of the records forwarded to it and interviewing, such of the persons recommended as it considers necessary, draw up a list of persons in order of the preference who are considered suitable for appointment to the service. The procedure details in sub-Rr. (4) to (7) of R. 7, mutatis mutandis be followed in regard to the list of persons prepared under this sub- rule.
(3) For every recruitment a separate list shall be drawn up and the list once approved by the Commission shall lapse immediately on the year’s quota of posts for persons under Cl. (c) of sub-R. (1) of R. 5 having been filled up from the list.”
37. On a perusal of the aforesaid Rule, it is graphically
clear that the recommending authority has to submit the
recommendations to the Governor regard being had to
certain aspects which have been prescribed under Rule 8(1).
Rule 8(1)(d) prescribes the age limit on the first date of the
year in which the recommendations are called for. Sub-rule
(2) of Rule 8 stipulates that the procedure detailed in sub-
rules (4) to (7) of Rule 7 mutatis mutandis be followed in
regard to the list of persons prepared. In this context, it is
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Page 41
necessary to reproduce sub-rules (4) to (7) of Rule 7 which
are as follows: -
“(4) The list prepared by the Committee shall give the names in order of preference and the total number of such names shall not be more than double the number of vacancies that may arise in the promotion quota of the cadre and the ex-cadre temporary posts of the rank of Deputy Superintendent of Police during a period of approximately one year thereafter. In every case, where in drawing up the list the committee changes the order of seniority of any person in the rank of Inspector of Police or supersedes any one in that rank by omission of his name, the Committee shall record in writing the reason for such change or supersession.
(5) The Committee shall forward the list to the Governor and on receipt of the list the Governor shall forward the same to the Commission together with the character rolls and other relevant papers.
(6) The Commission shall consider the list prepared by the Committee along with other documents received from the Governor or on receipt of other documents as may be called for by the Commission unless it considers any change necessary, approve the list. If the Commission considers any change necessary, it shall inform the Governor of the changes proposed and after taking into account the comments, if any, by the Governor, may approve the list finally with such modification, if any, as may in its opinion be just and proper.
4
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(7) The list, as finally approved by the Commission, shall be forwarded to the Governor along with all the papers received under sub-Rr. (5) and (6).”
38. It needs to be noted that under Rule 8(2), the Governor
is required to send the character rolls/testimonials of the
character and service records/other relevant records of the
persons recommended to the Committee which would, after
examination of the records forwarded to it and interviewing
such of the persons recommended as it considers necessary,
draw up a list of persons in order of the preference who are
considered suitable for appointment to the service.
“Committee” has been defined in Rule 2(c) and it reads as
follows: -
“(c) “Committee” means a committee constituted in accordance with sub-R. (1) of R. 7.”
The aforesaid definition makes sub-rule (1) of Rule 7
important. The said sub-rule reads as follows: -
“7. Recruitment by promotion. (1) There shall be a Selection Committee consisting of the following, namely :
(a) Chairman, Assam Public Service Commission, or, where the Chairman is unable to attend, a Member, Assam
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Public Service Commission nominated by him;
(b) Chief Secretary to the Government;
(c) Inspector-General of Police;
(d) A Senior Deputy Inspector General of Police to be nominated by Chief Secretary;
(e) Secretary to the Government of Assam in the Home Department or any other officer of the Home Department nominated in this behalf by the Chief Secretary. The Chairman, Assam Public Commission or the Member, Assam Public Service Commission, as the case may be, shall preside at the meeting of the Selection Committee at which he is present.”
In the obtaining factual matrix, the Selection
Committee had not recommended the case of the special
batch recruits to the Commission. As the affidavit filed by
the Secretary to the Commission before the tribunal clearly
stated that the procedure was not followed and the same
has been accepted by the tribunal and concurred with by
the High Court, there is no reason to differ with the same.
Therefore, we give the seal of imprimatur to the said
conclusion. At the risk of repetition, we state that the
selection has been made in excess of the quota and in the
absence of a recommendation of the Selection Committee as
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prescribed under the rules. Plainly speaking, a maladroit
effort was made to appoint the special batch recruits first
despite the recommendation of the direct recruits pending
before the State Government. It is also disturbing that
though the Cabinet had not approved the proposal for
special drive to appoint from other source yet the Director
General of Police impressed upon the Commission to
recommend 20 names. It is also equally perplexing that the
concept of the special drive was meant to have young
officers but in the ultimate eventuate, officers were nearing
fifty got the appointment. It is obvious that it was totally
arbitrary and exhibits indecent enthusiasm to confer
benefits on the special batch by making the rules
comatosed.
39. At this stage, it is requisite to clarify one aspect. The
learned single Judge has treated the selection of the special
batch recruits totally de hors the rules and the Division
Bench has opined that it is not de hors the rules on the
foundation that they were not casual appointees and their
recommendation had been made by the Commission and
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Page 45
further they had not played any overt act in getting their
selection done.
40. In University of Kashmir and others v. Dr. Mohd.
Yasin and others14, this Court expressed the view that an
equitable ground does not clothe an appointment with a
legal status. Similar view was also expressed in Swapan
Kumar Pal and others v. Samitabhar Chakraborty and
others15.
41. In State of Haryana v. Haryana Veterninary and
AHTS Association and another16, a three-Judge Bench,
after x-ray of the relevant rules, came to hold that when
appointments are made in violation of the recruitment rules,
the said appointments cannot be treated to be regular.
42. The aforesaid authorities clearly lay down the principle
that when there is violation of the recruitment rules, the
recruitment is unsustainable. Whether any active part is
played by a selectee or not has nothing to do with the
appointment made in contravention of the rules. In the case
at hand, the special batch recruits have encroached into the
14 (1974) 3 SCC 546 15 (2001) 5 SCC 581 16 (2000) 8 SCC 4
4
Page 46
quota of the direct recruits. The whole selection process is
in violation of the rules and, therefore, we are inclined to
concur with the opinion expressed by the learned single
Judge that the selection was made de hors the rules. The
Division Bench was not justified in stating that the selection
could not be said to be de hors the rules. However, we
accept the conclusion of the tribunal as well as the High
Court that as there had been long delay in challenging the
selection of the special batch recruits and some of them
have already retired, it would not be apposite to annul their
appointments.
43. Presently, we shall refer to Rule 18 which deals with
seniority. Mr. Prashant Bhushan, during the course of
hearing, has laid immense emphasis on the said Rule to
buttress the stance that if the service rendered in the
previous posts by the special batch recruits are taken into
consideration on the anvil of Rule 18, they should be treated
as senior to the direct recruits. Regard being had to the said
submission, it becomes necessitous to refer to the said Rule
in entirety. It reads as follows: -
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“18. Seniority. (1) The seniority of a member of the service shall be determined on the basis of his date of appointment to the service :
Provided that inter se seniority of the persons recruited under Rr. 5(1)(a), 5(1)(b) and 5(2) on the same date shall be according to the following order :
(i) Persons recruited under R. 5(2);
(ii) Persons recruited under R. 5(1)(b);
(iii) Persons recruited under R. 5(1)(a);
Provided further that in the case of a person recruited under R.5(1)(c) the Governor may, in consideration of his previous service and/or experience, fix a deemed date of appointment for the purpose of seniority after taking into consideration half the period of continuous service in completed years subject to a maximum of 4 years rendered in previous service.
(2) Inter se seniority of persons appointed under any of the three clauses of R. 5(1), shall be in the order in which their names appear in the list from which the appointment is made.
(3) The date of appointment for the purposes of this rule shall be, if a date is specified in the notification of appointment, such date, or if no such date is specified, the date on which such notification is issued.
(4) Notwithstanding anything contained in sub-Rr. (1) to (3) the seniority of a person who does not join the service within three months of the date of appointment as defined in sub-R.(3), shall be determined on
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the basis of the actual date of his joining the service.
(5) If the confirmation of a member of the service is delayed on account of his failure to qualify for such confirmation, he shall lose his post in the order of seniority vis-à- vis such of his juniors as may be confirmed earlier than he. His original position shall, however, be restored on his confirmation subsequently but any benefits of promotion, etc., shall not accrue to him with retrospective effect on such confirmation.
(6) Inter se seniority of persons promoted to the senior grade of the service shall be in the order in which their names appear in the list from which the promotion is made.”
44. The two facets which emerge from the scanning of the
aforesaid Rule are that the seniority of a member of the
service is to be determined on the basis of the date of
appointment to the service and the seniority has to follow a
particular order as has been stipulated therein. The other
significant aspect is that power has been conferred on the
Governor to consider the previous service of an incumbent
and fix a deemed date of appointment for the purpose of
seniority by adopting a specific method. As far as the first
part is concerned, the tribunal as well as the High Court has
not accepted the stipulation that in the present case the
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seniority should be determined on the basis of the date of
appointment as the same has been made in flagrant
violation of the rules and we have already concurred with
the same. As far as the computation of the previous service
is concerned, the learned single Judge as well as the
Division Bench, after adequate ratiocination, has expressed
the view that the appointments had been made in
contravention of the rules, the question of conferment of the
benefit under the second proviso to Rule 18(1) did not arise.
In our considered view, the said conclusion is absolutely
defensible for the simon pure reason when the
infrastructure is founded on total illegal edifice, the
endeavour to put forth a claim for counting the previous
service to build a pyramid is bound to founder.
45. Another specious contention has been urged that
power is vested with the Governor to dispense with or relax
any rule and in the case at hand, it should be treated that
the authority by its conduct has relaxed the rules. In this
context, it is appropriate to refer to Rule 23 which reads as
follows: -
4
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“Power of the Governor to dispense with or relax any rule. Where the Governor is satisfied that the operation of any of these rules may cause undue hardship in any particular case, he may order to dispense with or relax the requirements of that rule to such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner :
Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided by any of these rules.”
46. As has been observed by the learned single Judge
which has been accepted by the Division Bench, there was
no decision to relax the rules in favour of the special batch
recruits. That apart, whenever there has to be relaxation
about the operation of any of the rules, regard has to be
given to the test of causation of undue hardship in any
particular case. That apart, the authority is required to
record satisfaction while dispensing or relaxing the
requirements of any rule to such an extent and subject to
such conditions as he may consider necessary for dealing
with the case in a just and equitable manner. The language
of the Rule really casts a number of conditions. It provides
guidance. It cannot be exercised in an arbitrary manner so
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as to dispense with the procedure of selection in entirety in
respect of a particular class, for it has to be strictly
construed and there has to be apposite foundation for
exercise of such power. It is to be borne in mind that if a
particular rule empowers the authority to throw all the rules
overboard in all possibility, it may not withstand close
scrutiny of Article 14 of the Constitution. Be that it may, no
decision was taken to relax the rules and, the concept of
deemed relaxation is not attracted and, therefore, the relief
claimed by the special batch recruits has no legs to stand
upon.
47. From the aforesaid analysis, there can be no scintilla of
doubt that the selection of the special batch recruits was
totally de hors the Rules; that there was a maladroit effort to
go for a special drive when there was no need for the same
by the State which is supposed to be a model employer; that
neither the concept of relaxation nor the conception of
benefit of Rule 18 would be attracted for grant on conferring
any privilege to the special batch recruits; that their
seniority has to be pushed down and, hence, the directions
given by the tribunal and the High Court in that regard are
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absolutely flawless; and that regard being had to the delayed
challenge and long rendering of service in the posts and
further promotions having been effected, it would be
inapposite to quash their appointments.
48. Before parting with the case, we are compelled to
reiterate the oft-stated principle that the State is a model
employer and it is required to act fairly giving due regard
and respect to the rules framed by it. But in the present
case, the State has atrophied the rules. Hence, the need for
hammering the concept.
49. Almost a quarter century back, this Court in Balram
Gupta vs Union of India & Anr. [1987 (Supp) SCC 228]
had observed thus:
“As a model employer the Government must conduct itself with high probity and candour with its employees.”
50. In State of Haryana v. Piara Singh and Ors.
[(1992)4SCC118], the Court had clearly stated:
“The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16”.
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51. In Secretary, State Of Karnataka And vs. Umadevi
And Others [(2006)4SCC1], the Constitution Bench, while
discussing the role of state in recruitment procedure, stated
that if rules have been made under Article 309 of the
Constitution, then the Government can make appointments
only in accordance with the rules, for the State is meant to
be a model employer.
52. In Mehar Chand Polytechnic & Anr. vs. Anu Lamba
& Ors. [(2006) 7 SCC 161] the Court observed that public
employment is a facet of right to equality envisaged under
Article 16 of the Constitution of India and that the
recruitment rules are framed with a view to give equal
opportunity to all the citizens of India entitled for being
considered for recruitment in the vacant posts.
53. We have stated the role of the State as a model
employer with the fond hope that in future a deliberate
disregard is not taken recourse to and deviancy of such
magnitude is not adopted to frustrate the claims of the
employees. It should always be borne in mind that
legitimate aspirations of the employees are not guillotined
and a situation is not created where hopes end in despair.
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Hope for everyone is gloriously precious and a model
employer should not convert it to be deceitful and
treacherous by playing a game of chess with their seniority.
A sense of calm sensibility and concerned sincerity should
be reflected in every step. An atmosphere of trust has to
prevail and when the employees are absolutely sure that
their trust shall not be betrayed and they shall be treated
with dignified fairness then only the concept of good
governance can be concretized. We say no more.
54. Consequently, all the appeals are dismissed leaving
the parties to bear their respective costs.
……………………………….J. [K. S. Radhakrishnan]
……………………………….J. [Dipak Misra]
New Delhi; November 30, 2012.
5