PETITIONER:
ANAND PARKASH SAKSENA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
14/12/1967
BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
WANCHOO, K.N. (CJ)
SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 754 1968 SCR (2) 311
CITATOR INFO :
R 1976 SC2345 (16)
RF 1980 SC1275 (24)
ACT:
Indian Administrative Service-I.A.S. Extension to States
Scheme-Officer in the junior scale of pay if has a right to
a post in the senior scale-All India Services (Discipline
and Appeal) Rules 1955, r. 3-Filling of posts by non-Cadre
officers, if penalty-I.A.S. Recruitment Rules, 1954, r.
4(3), if bad for excessive delegation-Regulation of
Seniority Rules, 1954, r. 3(3)(b), Seniority of Special
Recruits Regulation, 1960, regulation 3(3), if violative of
Constitution of India, Arts. 14, 16.
HEADNOTE:
The Madhya Bharat Cadre of the Indian Administrative Service
was constituted in 1951 under the I.A.S. Extension to States
Scheme. The Cadre included all senior posts. A number of
junior and training posts were provided to be held by
officers recruited to the cadre before they acquired the
experience and seniority necessary to hold senior posts.
The primary source for the initial constitution of the Cadre
was the existing incumbents of the State Service. They were
selected and included in three Lists. Officers in List I,
were immediately appointed to the service Officers in List
11 were to be taken in the service only when found suitable
and those in List III were not to be absorbed in the
service. List 11 and III officers were counted against’
senior posts but these posts held by them were excluded from
the Cadre for the period they were held by those officers.
The Cadre was to be maintained on a permanent basis by
direct recruitment by competitive examination and promotion
of State Civil Service Officers and twenty-five per cent of
the senior posts were reserved for the latter. The Cadre
continued Co be governed by the Scheme until 1954 when the
I.A.S. Recruitment, Seniority Cadre and Pay Rules were made.
Rule 9(1) of the Cadre Rules provides for appointment of
non-cadre officers to cadre posts, i.e. senior posts, if
suitable cadre officers are not available and the proviso to
the rule preserved the arrangement under the Extension to
States Scheme for the holding of cadre posts by non-Cadre
officers. Under Rule 9(1) of the Recruitment Rules twenty-
five per cent of the senior posts are reserved for persons
recruited under rule 8, i.e. by promotion of substantive
members of the State Civil Service and by selection of those
who hold gazetted posts in connection, with the affairs of a
State. The Special Recruitment Regulations, 1956, made
under rule 4 of the Recruitment of Rules, provides for
recruitment by promotion to the Service by selection of
persons serving in connection with the affairs of a State.
In the matter of seniority, the Regulation of seniority
Rules, gives a promote from State Civil Service the year of
allotment of the junior-most direct recruit officiating
continuously in a senior post earlier than the date of
commencement of such officiation by the promotee. The
seniority of Special Recruits Regulation,, 1960, adopts the
formula applicable to promotees for fixing the seniority of
those recruited by promotion under the Special Recruitment
Regulations.
The petitioner, a direct recruit by competitive
examination,, was appointed to a junior post in the Service
on April 2, 1952. He was originally allotted to the Madhya
Bharat Cadre, which along with the former Vindhya Pradesh
and Madhya Pradesh Cadres merged in the present L2 Sup
CI/68-9
612
Madhya Pradesh Cadre constituted on November 1, 1956. He
was not found suitable to hold a senior post till November
17, 1956, when. he was appointed to officiate in a senior
post. At the time his appointment to the service there were
no vacancies in the senior posts. Vacancies arose before he
was appointed to officiate in the senior post and after.
Some of the respondents who were officers of the Madhya
Bharat and the former Madhya Pradesh State Civil Services
were promoted before the integration of the cadres on
November 1, 1956 to fill the vacancies against the twenty-
five per cent quota and several non-Cadre officers were
appointed under r. 9(1) of the Cadre Rules. Vacancies were
also filled in by promotion under the Special Recruitment
Regulations. In the gradation List published on January 1,
1966 all the respondents were shown as senior to the
petitioner.
In a writ petition, under Art. 32 the petitioner contended
that (i) he had a right to hold a post in the senior scale
of pay from April 2. 1952 to November 17, 1956, under the
Rules and in tile light of this Court’s decision in P. C.
Wadhwa v. Union of India and the filling of the vacancies by
non-Cadre officers amounted to withholding of promotion and
penalty within the meaning of r. 3 of the All India Service
(Discipline and Appeal) Rules. 1955; (ii) under the rules
seventy-five per cent of the total number of senior posts
was exclusively reserved for direct recruits and that in
computing the twenty-five per cent quota officers in Lists
11 and III and special recruits had to be included; (iii) r.
4(3) of the Recruitment Rules which authorised the Central
Government to make regulation for special recruitment was
bad on the ground of excessive deletation; (iv) r. 3 (3) (b)
of the Regulation of Seniority Rules, 1954, made unjust
discrimination between a promotee and a direct recruit in
the matter of seniority by arbitrarily allotting a lower
year of allotment to a promotee and therefore violated Arts.
14 and 16 of the Constitution; and (v) regulation 3(3) of
the Seniority of Special Recruits, Regulation 1960, offended
Arts. 14 and 16 inasmuch as the relevant rules and
regulations set up an arbitrary double standard for a
special recruit enlisted by promotion.
HELD : Dismissing the petition.
(i) The filling of a vacancy by a non-Cadre officer under
r. 9 of the Cadre Rules does not infringe any right of the
Cadre officer nor does it amount to withholding of Promotion
or a Penalty within the meaning of r. 3 of All India Service
(Discipline and Appeal) Rules, 1955. A Cadre Officer in the
junior scale of pay cannot claim ‘a right to fill a vacancy
in the senior scale if he is not ‘suitable and no Cadre
officer junior to him is Promoted to fill the vacancy. The
decision in Wadhwa’s case is distinguishable. That case
only decided that the reversion of a Cadre, office, while
Cadre officers junior to him continued in the senior scale
amounted not only to reduction in rank but also to
withholding of promotion. Rule 6 A(2) of the Recruitment
Rules introduced in 1965 after the decision in Wadhwa’s case
now makes explicit what was always implicit in r. 9(i) of
the Cadre Rules.
In the instant case no Cadre Officer junior to the
Petitioner was promoted to the Cadre post be-fore his
Promotion on November 17, 1956 and after Promotion he was
neither reverted nor reduced in rank nor was his promotion
withheld. [619 F-H: 620 E-F]
P. C. Wadhwa v. Union of India, [1964] 4 S.C.R. 598.
distinguished.
613
(ii) Seventy-five per cent of the senior posts may be filled
by recruits other than those recruited by promotion or
selection under r. 8 of the Recruitment Rules. Special
recruits are appointed against the seventy-five per cent
quota and rule 9(3)(b)(iv) added in 1965 makes explicit what
was always implicit in r. 9(1) of the Recruitment Rules.
Under the Extension. to State Scheme officers in Lists II
and III were not counted against the twenty-five per cent
quota. Rule 9(3)(b)(iii) of the Recruitment Rules make it
clear that in computing the twenty-five per cent quota the
appointments of officers in List 11 will be excluded. [620
G, H]
(iii) Assuming that the doctrine of excessive delegation
of Legislative power applies to rules, r. 4(3) does not
suffer from the vice of excessive delegation. in making .’he
regulations under the rule the Central Government is to be
guided by the exigencies of the service and the advice of
the State Governments ‘and (,he Union Public Service
Commission. There authorities are the best judges of the
appropriate regulations to be made in the matter [622 A-C]
(iv) Rule 3(3)(b) of the Regulation of Seniority Rules is
not violative of Arts. 14 or 16 of the Constitution. The
object of the rule is to fix the seniority of the promotees
who obtained promotion after long service in the State Civil
Service, in relation to direct recruits. The ‘rule attempts
to strike a just balance between the- conflicting claims of
the promotees and direct recruits. [622 F-G]
(v) Regulation 3(3) of the Special Recruits Seniority
Regulations is not violative of Arts. 14 and 16. Special
recruits ‘are neither direct recruits nor promotees. They
form a distinct class. The regulation, properly adopts the
formula applicable to promotees for fixing the seniority of
special recruits enlisted by promotion so that in the matter
of seniority all officers recruited from the State Civil
Services ‘are placed on the same footing. [623 A-C]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967.
Petition under Article 32 of the Constitution of India for
the enforcement of the Fundamental Rights.
N. C. Chatterjee, A. N. Sinha, S. Balakrishnan and K. B..
Rohtage, for the petitioner.
Niren De, Solicitor-General, V. A. Seyid Muhammad and
R. H. Dhebar for R. N. Sachthey, for respondent No. 1.
B. Sen and I. N. Shroff, for respondents Nos. 2 to 18,,
The Judgment of the Court was delivered by
Bachawat, J. The petitioner is a member of the Indian Admi-
nistrative Service having been appointed to a junior post
therein on April 2, 1952 on the basis of a competitive
examination held by the Union Public Service Commission in
the year 1951. He completed his probation on October 2,
1953. He was originally allotted to the Madhya Bharat Cadre
of the Indian Administrative Service which along with the
former Vindhya Pradesh and Madhya Pradesh cadres, merged in
the present Madhya Pradesh cadre of Indian Administrative
Service constituted on November 1, 1956.
614
He was appointed to officiate in a senior post on November
17, 1956. In the gradation list published on January 1,
1966, hi,; number is 70. In this writ petition under Art.
32 of the Constitution he claims that (a) he had the right
to hold a post in the senior scale of pay from April 2, 1952
up to November 17, 1956 under the relevant rules read in the
light of the decision in P. C Wadhwa v. Union of India(1)
and that (b) he is entitled to a higher place in the
gradation list. He asks for the issue of appropriate writs
declaring his rights and giving him consequential reliefs.
The Madhya Bharat cadre of the Indian Administrative
Service: was constituted on June 1, 1951 under the Indian
Administrative Service Extension to States Scheme. The
cadre included all senior posts. A number of junior and
training posts were provided, to be held by officers
recruited to the cadre before the) acquired the experience
and seniority necessary for holding senior posts. The
initial constitution of the cadre was made from (1) the
existing incumbents and (2) emergency recruits. The
existing incumbents were considered to be the first and
primary source of recruitment. They were selected by a
Special Recruitment Board and divided in three lists.
Officers in List I were considered fit for immediate
appointment to the Service. Officers in List II were to
continue to hold their present posts, their work was to be
watched for 5 years and were to be absorbed in the Service
as and when they were found fit. Officers in List III were
to hold their present posts or posts of equivalent rank
until they retired but they were not to be absorbed in the
Service. The posts held by officers in Lists 11 and III
were excluded from the cadre for the period during which
they were held by those officers. The cadre was to be
maintained on a permanent basis by (a) direct recruitment on
the result of the competitive examination and (b) promotion
from amongst officers of the State Civil Service. As in the
case of the Provincial cadres, 25 per cent of the senior
posts were earmarked for promotion of officers of the State
Civil Service.
On June 1, 195 1, the number of senior posts in the Madhya
Bharat cadre was 25. On selection by the Special
Recruitment Board, 6 officers were placed in List I and were
appointed to the Service from January 1, 1951. Four
officers were placed in List II and 11 officers were placed
in List III and they continued to hold their posts under the
Extension to States Scheme.. The remaining 4 senior posts
were held by 4 emergency recruits. On April 2, 1952, there
was thus no available vacancy for the petitioner in the
senior posts. As a matter of fact, 2 direct recruits senior
to the petitioner were in the junior scale of pay.
(1) [1964] 4 S.C.R. 598.
615
In September 1954, the Central Government framed the I.A.S.
Cadre Rules, 1954, I.A.S. Recruitment Rules, 1954, I.A.S.
Pay Rules, 1954 and I.A.S. Regulation of Seniority Rules,
1954 in exercise of its powers under s. 3(1) of the All
India Services Act, 1951. These rules were amended from
time to time. Under r. 2 (a) of the Cadre Rules, a cadre
officer means a member of the Indian Administrative Service.
Under r. 2(b), a cadre post means a senior cadre post under
the State Government. Under r. 3, an I.A.S. cadre is
constituted for each State or group of States. Under r. 4,
the strength and composition of each cadre is determined by
regulations made by the Central Government. Rule 8 provides
that “Save as otherwise provided in these rules, every cadre
post shall ‘be filled by a cadre officer.” Rule 9(1)
provides that “A cadre post in a State may be filled by a
person who is not a cadre officer if the State Government is
satisfied (a) that the vacancy is not likely to last for
more than three months; or (b) that there is no suitable
cadre officer available for filling the vacancy.” If a
person other than a cadre officer is appointed to a cadre
post for a period exceeding three months, the fact shall be
reported to the Central Government who may, on receipt of
the report, direct the State Government to terminate his
appointment and if he is likely to fill a cadre post for a
period exceeding six months, the Central Government must
seek the advice of the Union Public Service Commission and
in the light of its advice, give suitable directions to the
State Government. It was provided that r. 9 would not
affect the existing arrangements made by the Central
Government in connection with the Governments of Part B
States and the State of Vindhya Pradesh at the time of the
initial constitution of the cadre for certain cadre posts to
be filled by non-cadre officers.
Rule 3 of the I.A.S. Recruitment Rules, 1954 gives the cons-
titution of the service. Rule 4 specifies the methods of
recruitment. Sub-rule (1) of r. 4, as amended, provides
that “Recruitment to the Service, after the commencement of
these rules, shall be by the following methods, namely: (a)
by a competitive examination; (aa) by selection of persons
from among released Emergency Commissioned Officers and
Short Service Commissioned Officers, commissioned in the
Armed Forces of the Union after the 1st November, 1962; (b)
by promotion of substantive members of a State Civil
Service; (c) 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 (3) of r. 4
provides that “Notwithstanding anything contained in sub-
rule (1), if in the opinion of the Central Government the
exigencies of the service so require, the Central Government
may, after consultation with the State Governments and the
Commission, adopt
616
such methods of recruitment to the Service other than those
specified in the said sub-rules as it may by regulations
made in this behalf prescribe.” Rule 6 provides that no
appointment to the Service shall be made except after
recruitment by one of the methods specified by r. 4 Rules
6A(2) introduced with effect from September 24, 1966 after
the decision in P. C. Wadhwa’s case(1) provides that “A
direct recruit in the junior time-scale of pay shall be
appointed to a post in the senior time-scale of pay if,
having regard to his length of service, experience, and
performance in the junior time-scale of pay, the State
Government is satisfied that he is suitable for appointment
to a post in the senior time-scale of pay.” Rules 7. 7A,
8(1) and 8(2) deal with the four methods of recruitment
specified in r. 4 and empowers the Central Government to
make appropriate regulations. Rule 8(1) deals with
recruitment by promotion of substantive members of the State
Civil Service. Rule 8(2) deals with recruitment by
selection in special cases from amongst persons who hold, in
a substantive capacity, gazetted posts in connection with
the affairs of the State and who are not members of the
State Civil Service. Rule 9(1), as amended, provides inter
alia that “the number of persons recruited under rule 8 in
any State or group of States shall not, at any time, exceed
25 per cent of the number of” senior posts in relation to
that State or group of States. Rule 9(3)(b) provides that
“for the purpose of determining the percentage specified in
sub-rule (1)(b) the following category of officers shall ‘be
excluded namely :- (i) officers of a State Civil Service
appointed to the Service under the Emergency Recruitment
Scheme otherwise than against the 25 per -cent quota; (iii)
officers of a State Civil Service appointed to the Service
from List II, prepared by the Special Recruitment Board
under the Indian Administrative Service (Extension to
States) Schemes; (iv) officers of a State Civil Service
appointed to the Service under the Indian Administrative
Service (Special Recruitment) Regulations, 1956.” Rule 9 (3)
(b) (iv) was added oil October 15, 1965.
The I.A.S. (Special Recruitment) Regulations, 1956 were made
under r. 4(3) of the Recruitment Rules. Regulation 3 pro-
vides that special recruitment will be made (a) by direct
recruitment by selection and (b) by promotion to the Service
by selection of persons serving in connection with the
affairs of the State. Regulations 8 and 9 adopt for the
purposes of special recruitment the regulations for
appointment by competitive examination, promotion and
selection made under rules 7, 8(1) and 8(2) of the
Recruitment Rules with appropriate modifications.
Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of
pay admissible to the members of the Service. The _junior
scale is
(1)[1964] 4 S.C.R. 598.
617
scale is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800
(22 years). The selection grade is Rs. 1800-100-2000. Rule
4(1) provides that the initial pay of a direct recruit shall
be fixed at the minimum of the junior time-scale. Rule 4(2)
provides that the pay of a member of the Service in the
junior time-scale shall on appointment to a post on the
senior time-scale, be fixed at the corresponding stage of
the senior time-scale as shown in Sch. 1. The two scales of
pay are given in Sch. 1 in parallel columns against the
years of service. The increments, withholding of increments
and grant of advance increments are regulated by rules 5, 6
and 7.
Rule 3(1) of I.A.S. (Regulation of Seniority) Rules, 1954
provides that every officer shall be assigned a year of
allotment. Rule 3 (3) (a) provides inter alia that the year
of allotment of an officer appointed to the Service after
the commencement of these rules, shall be-where the officer
is appointed to the Service on the results of a competitive
examination, the year following the year in which such
examination was held.” Rule 3 (3) (b) provides that the year
of allotment of an officer shall be “where the officer is
appointed to the Service by promotion in accordance with
subrule (1) of rule 8 of the Recruitment Rules, the year of
allotment of the junior-most among the officers recruited to
the Service in accordance with rule 7 of those rules who
officiated continuously in a senior post from a date earlier
than the date of commencement of such officiation by the
former.” The proviso to r. 3 (3) (b) lays down that ”the
year of allotment of an officer appointed to the Service in
accordance with sub-rule (1) of rule 8 of the Recruitment
Rules who started officiating continuously in a senior post
from a date earlier than ‘the date on which any of the
officer recruited to the Service in accordance with rule 7
of those Rules so started officiating shall be determined ad
hoc by the Central Government in consultation with the State
Government concerned.” Rule 5A authorises the making of
regulations for fixing the seniority of special recruits.
Rule 6 provides for preparation of a gradation list of all
officers borne on the cadre arranged in order of seniority.
Regulation 3 of the I.A.S. (Seniority of Special Recruits)
Regulation, 1960 made under r. 5A of the Regulation of
Seniority Rules fixes the seniority of special recruits.
Rule 3(3) provides that “In the case of officers recruited
by promotion from the State Civil Service under clause (b)
of regulation 3 read with regulation 9 of the Indian
Administrative Service (Special Recruitment) Regulations,
1956, the year of allotment shall be fixed in accordance
with the provisions of clause (b) of sub-rule (3) of rule 3
of the Indian Administrative Service (Regulation of
Seniority) Rules, 1954.”
618
The relevant provisions of the parallel Cadre, Recruitment,
Pay and Regulation of Seniority Rules of the Indian Police
Service were considered by this Court in P. C. Wadhwa v.
Union of India(1). There, the appellant was a member of the
Indian Police Service. He joined the Service in 1952 and
was confirmed in 1953. In 1958 he was promoted to officiate
in the senior time-scale as Additional Superintendent of
Police at Ferozepore in place of the permanent incumbent who
was on leave. In July 1964, he was served with a charge-
sheet and he submitted a reply. Before the enquiry started
he was reverted to his substantive rank of Assistant
Superintendent of Police. The reversion was not due to the
return of the permanent incumbent from leave or deputation
or for any administrative reason. Other officers junior to
him continued to officiate in the senior scale while he was
reverted. His personal file revealed a note by the Senior
Superintendent of Police to the effect that a regular en-
quiry into his conduct would take a long time and it was
advisable to revert him. He was not given any opportunity
of showing cause against the action taken against him. He
filed a writ petition in the High Court asking for the issue
of a writ quashing the order of reversion. The High Court
dismissed the petition. On appeal, this Court set aside the
order of the High Court and allowed the petition. This
Court held that the reversion was made in contravention of
Art. 311 of the Constitution. The majority held that the
reversion was by way of punishment and amounted to reduction
in rank and withholding of promotion on grounds which may be
summarised thus : There is only one cadre in the Indian
Police Service. A person in the junior time-scale of the
Service is as much a cadre officer as one holding a post in
the senior time-scale or a post above the time-scale. The
transition of a member of the Service from one scale to
another does not depend upon selection or the consideration
of the comparative merits of the officers in the junior
scale inter se but only upon a consideration of his
seniority. Mudholkar, J. said that “the whole scheme of the
rules indicates that a person borne on the junior scale of
pay has a right to hold a post on the senior scale of pay
depending upon the availability of a post and his seniority
in the junior scale of pay.” The learned Judge added :
“Despite the fact that he holds a certain rank in the
gradation list persons who also belong to the Indian Police
Service and who were recruited to it subsequent to him have
continued to hold or have been appointed to hold posts
carrying salary in the senior scale. This would itself
indicate that the action taken against him was by way of
penalty or punishment. For, he has not only been reduced in
rank but his promotion to the senior scale has also been
withheld.”
(1) [1964] 4 S.C.R. 598.
619
In this background, the petitioner says that he was deprived
of his right to hold a senior post during the period from
April 2, 1952 up to November 17, 1956. We have found
already that on April 2, 1952 there was no available vacancy
in the senior post to which he should be appointed. The
Madhya Bharat Cadre continued to be governed by the
Extension to States Scheme until September 1954 when the
Cadre, Recruitment, Pay and Regulation of Seniority Rules
were made. The proviso to r. 9 of the Cadre Rules preserved
the existing arrangements under the I.A.S. Extension to
States Scheme for the holding of certain cadre posts by non-
cadre, officers. On June 24, 1955, the strength of the
Madhya Bharat cadre was revised and increased to 46.
Respondents Nos. 14, 15 and 16 belonged to the Madhya Bharat
State Service. Respondent No. 14 was appointed on June 24,
1955 and respondents Nos. 15 and 16 were appointed on April
25, 1956 to senior posts against vacancies in the 25 per
cent quota. Several non-cadre officers were appointed to
fill vacancies in the senior posts under r. 9 of the Cadre
Rules. The petitioner was not found suitable to fill a
vacancy in a senior post until November 17, 1956.
The petitioner contends that (1) he had the absolute right
to be appointed to a vacancy in the senior posts on and
after April 2, 1952, (2) the filling of the vacancies by
non-cadre officers on the ground that he was not suitable
was an infringement of his right and amounted to withholding
of promotion and a penalty within the meaning of r. 3 of the
All India Services (Discipline and Appeal) Rules, 1955, (3)
75 per cent of the total number of senior posts was reserved
exclusively for direct recruits and (4) in computing the 25
per cent quota under r. 9(1) of the Recruitment Rules
officers in Lists 11 and III and special recruits should be
included. These contentions must be rejected.
Vis a vis another cadre officer junior to him, a cadre
officer in the junior scale of pay has the right of
promotion to a post in the senior scale on the ground of
seniority. This right is infringed if the junior cadre
officer is promoted to fill a vacancy in the senior scale,
while he continues to hold a post in the junior scale of
pay. But he cannot claim the right to fill the, vacancy if
he is not suitable and no cadre officer junior to him is
promoted to fill the vacancy. An officer in the junior
scale of pay has no right to a senior post as soon as he
joins the Service. He may be appointed to a senior post
only when he is found suitable having regard to his length
of service, experience and performance in the junior scale
of pay. Rule 6A(2) of the Recruitment Rules now makes
explicit what was always implicit in r. 9 of the Cadre
Rules.
Under r. 9(1) of the Cadre Rules, a senior cadre post may be
filled by a non-cadre officer if there is no suitable
officer
620
available for filling the vacancy. Similar provision is to
be found in paragraph 3 of the memorandum regarding
constitution of the Indian Administrative Service and
paragraph 5 of the Indian Civil Administrative Cadre Rules,
1950. The appointment of a non-cadre officer to a cadre
post under r. 9(1) of the Cadre Rules is a temporary
arrangement which may be terminated at any time when the
Government finds a cadre officer suitable for filling the
vacancy. Until the cadre officer is found suitable, a non-
cadre officer may be appointed to fill the vacancy in a”
post in the senior scale of pay. The cadre officer has no
right to fill the vacancy if he is not suitable. The
filling of the vacancy by a non-cadre ,officer under r. 9
does not infringe any right of the cadre officer nor does-
it amount to a withholding of promotion or a penalty within
the meaning of r. 3 of the All India Services (Discipline
and Appeal) Rules, 1955.
The decision in P. C. Wadhwa’s case(1) is distinguishable.
There, a cadre officer in the junior scale of pay was
promoted to officiate in a post in the senior scale of pay
and was thereafter reverted to his substantive post while
other cadre officers junior to him continued to officiate in
posts in the senior scale of pay. As against cadre officers
junior to him,,he had the right to hold :the post in the
senior scale of pay. The reversion while cadre officers
junior to him continued in the senior scale amounted to not
only reduction in rank but also withholding of promotion.
This is all that P. C. Wadhwa’s case(1) decided. The fact
in the present case are entirely different. The petitioner
was not suitable to fill the vacancies in the senior posts
and non-cadre officers were appointed to fill the vacancies
under r. 9 of the Cadre Rules. No cadre officer junior to
the petitioner was promoted to the cadre post before his
promotion on November 17, 1956. Nor was he reverted after
his promotion, while officers junior to him continued to
hold senior posts. The petitioner was not reduced in rank
nor was his promotion withheld. He had no right to fill a
vacancy in the senior posts or to draw salary in the senior
scale between April 2, 1952 and November 17, 1956.
There is no merit in the contention that 75 per cent of the
total number of senior posts is reserved exclusively for
direct recruits. Under r. 9(1) of the Recruitment Rules,
the number of persons recruited to senior posts under r. 8
of the Recruitment Rules by promotion or by selection cannot
exceed 25 per cent of the total number of senior posts. The
remaining 75 per cent of the senior posts may be filled by
other recruits. Special recruits under r. 4 of the
Recruitment Rules are appointed against the 75 per cent
quota. Their appointments are not counted against the 25
per cent quota reserved for persons recruitment under r.8.
(1) [1964] 4 S.C.R. 598.
621
Rule 9(3)(b)(iv) now expressly provides what was already
implicit in r. 9(1).
Paragraph 4(iv) of the I.A.S. !Extension to States Scheme
provided that the posts held by officers included in Lists
11 and III would be excluded from the cadre for the period
they were held by those officers and would revert to the
cadre as and when they ceased to be required for that
purpose. The posts held by the officers in List III were
excluded from the cadre until they retired and were not
counted against the 25 per cent quota. The posts held by
the officers in List 11 pending absorption in the service
were excluded from the cadre. They were absorbed in the
service as and when they were found fit. Rule 9 (3) (b)
(iii) provides that in computing the 25 per cent quota the
appointments of officers from List 11 will be excluded.
There were vacancies in the 25 per cent quota which were
filled up by promotion of respondents Nos. 14, 15 and 16
from the Madhya Bharat State Service. Respondents Nos. 4,
6, 11, 12, 13, 17 and 18 were from the former Madhya Pradesh
State Service. Some of them were promoted to the Indian
Administrative Service against the 25 per cent quota in the
State cadres before the integration of the cadres on
November 1, 1956. No appointments were made between
November 1, 1956 and November 17, 1956 when the petitioner
was appointed to officiate in a senior post Other
respondents were appointed after November 17, 1956. None of
the appointments is open to any challenge. It is surprising
that the petitioner seeks to challenge the appointments
after a long lapse of time. He has not given any adequate
explanation as to the delay in filing the writ petition.
The petitioner next challenges the seniority assigned to the
respondents. In the gradation list, all the respondents are
shown as senior to him Respondents Nos. 10, 11, 12 and 13
are special recruits and their seniority has been fixed
under Regulation 3(3) of the I.A.S. (Seniority of Special
Recruits) Regulation, 1960 read with r. 3 ( 3 ) (b) of the
Regulation of Seniority Rules, 1 9 5 4. The other
respondents are promotees and their seniority has been fixed
under r. 3 (3) (b) of the Regulation of Seniority Rules and
the proviso thereto.
The petitioner challenges the vires of r. 4(3) of the
Recruitment Rules under which the Central Government framed
the Special Recruitment Regulations. The Recruitment Rules
were made under s. 3 of the All India Services Act, 1951.
In D. S. Garewal v. The State of Punjab and Another(1), this
Court held that s. 3 was not bad on the ground of excessive
delegation of legislative power. The petitioner submits
that r. 4(3) of the
(1) [1959] Sup, 1 S.C.R. 72
622
Recruitment Rules is bad on the ground of excessive
delegation, of legislative power. Assuming that the
doctrine of excessive delegation of legislative power
applies to rules, we think that r. 4(3) does not suffer from
the vice of excessive delegation. Rule 4(3) .authorities
the Central Government to make regulations for special
recruitment. In making the regulations, the Central
Government is to be guided by the exigencies of the service
and the advice of the State Governments and the Union Public
Service Commission. These authorities are the best judges
of the appropriate regulations to be made in the matter. In
the light of their expert knowledge they can adapt for this
purpose the existing regulations for other methods of
recruitment with suitable modifications or make other
appropriate regulations having regard to the exigencies of
the service. As a matter, of fact, the Special Recruitment
Regulations 1960 framed under r. 4(3) have adapted for the
purposes of special recriutment the regulations for
recruitment by competitive examination, promotion and
selection with appropriate modifications,
The petitioner next contends that r. 3 (3) (b) of the
Regulation of Seniority Rules makes unjust discrimination
between a promotee and a direct recruit in the matter of
seniority by arbitrarily assigning a lower year of allotment
to a promotee and is violative of Arts. 14 and 16 of the
constitution. This contention is devoid of merit. The
seniority of direct recruits inter se and promotees inter se
is fixed by r. 4. The object of r. 3 (3) (b) is to fix the
seniority of the promotees in relation to direct -recruits.
The promotees obtain promotion after long service in the
State Civil Services. From the point of view of the
promotee, his seniority should be counted from the date of
his joining the State Civil Service. From the point of view
of the direct recruit the seniority of the promotee should
be counted from the date of his appointment to the Indian
Administrative Service. Rule, 3 (3) (b) attempts to strike
a just balance between the conflicting claims. It gives the
promotee the year of allotment of the junior-most direct
recruit officiating continuously in a senior post earlier
than the date of commencement of such officiation by the
promotee. If no direct recruit was officiating continuously
in a senior post on an earlier date. the seniority of the
promotee is determined ad hoc. In our opinion, the rule is
not arbitrary or discriminatory and is not violative of
Arts. 14 and 16 of the Constitution.
The petitioner next challenges the validity of ]Regulation
3(3) of the Special Recruitment Seniority Regulations, 1960
on the ground that it offends Arts. 14 and 16 of the
Constitution. According to the petitioner, the relevant
rules and regulations have set up an arbitrary double
standard for a special recruit enlisted by promotion because
Regulation 3(3) of the Special Recruit-
623
ment Seniority Regulations read with r. 3 (3) (b) of the
Regulation of Seniority Rules treats him as a promotee for
the purpose of seniority while r. 9 (3) (b) (iv) of the
Recruitment Rules treats him as a direct recruit for the
purpose of recruitment. There is no substance in this
contention. Special recruits form a distinct class. They
are neither direct recruits nor promotees. Rule 9 of the
Recruitment Rules does not treat them as direct recruits.
Regulation 3 (3) of the Special Recruits Seniority
Regulations properly adopts the formula applicable to
promotees for fixing the seniority of special recruits
enlisted by promotion. so that in the matter of seniority
all officers recruited from the State Civil Service are
placed on the same footing. The regulation is not arbitrary
nor violative of Arts. 14 and 16 of the Constitution.
The seniority of the respondents was fixed in accordance
with Regulation 3 (3) of the Special Recruitment Seniority
Regulations, r. 3 (3) (b) of the Regulation of Seniority
Rules and the proviso thereto, and is not open to any
challenge.
The writ petition is dismissed. There will be no order as
to costs.
Y.P. Petition
dismissed.
624