ANAND PARKASH SAKSENA v. UNION OF INDIA & Ors.

" The proviso tor. 3(3)(b) Jays down that "the year of allotment of an officer appointed to the Service in accordance with sub-rule ( 1) of rule 8 of the Recruit ment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officer re cruited to the Service in accordance with rule 7 of those Rules so started officiating shall be determined ad hoc by the Central Gov ernment in consultation with the State Government concerned. " Rule 5A authorises 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. the making of regulations fixing G H Regulation 3 of the l.A.S. (Seniority of Special Recruits) Regulation, 1960 made under r. 5A of the Re~ulation of Senio rity 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 re1c' 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 SUPREME COURT REPORL [1968) 2 S.C.R. to his 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('). There, the appellant was a member of the Indian Police Service. He joined the Service in 1952 and was confirm ed in 1953. In 1958 he was promoted to offici<!te 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 stantive rank of Assistant Superintendent of Police. The rever sjon 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 advis able to revert him. He was not given any opportuntiy of show ing cause a~ainst the action taken against him. He filed a writ petition in the Higi' 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 wa; m~dc- in contravention of Art. 311 of the Constitution. The maj< ·r''" '1c!d that the reversion was by way of punishment and a1,..1:,·:•c.i 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 ~ post in the senior time-scale or a post above the time-scale. The transition of a member of the Service from one sca·e to another doe; not depend upon selection or the consideration of the com parative 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 junio~ scale of pay has a right to hold a post on the seni~r scale of pay depending upon the availability of a post and hts 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 sub~equent· to him have continued to hold or have been appointed to hold posts carrying salary in the senior scale.

This would itself indicate that lhe 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 bas also been withheld. " A B c D It G H (t) (1964) 4 S.C.R. 598. A. P. SAKSENA v. UNION (Bachawat, J.) 619 A B c D ln 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 Regula tion 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 -rune 24, 1955, the strength of the Madhya Bharat cadre was revised and increased to 46. Respon dents Nos. 14, 15 and 16 belonged to the Madhya Bharat State Se1vice. 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 vacancie~ 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. Th~ petitioner was i:tot found suitab!e to fill a vacancy in a senior post until Novem ber 17, 1956. The petitioner coniends that ( l) 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 II and III and special recruits should be included. These contentions must be rejected. Vis a vis ancither 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 infring ed 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 0f pay: Rule 6A (2) of the Recru; tment 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 G H 620 SUPREME COURT REPORTS [1968] 2 S.C.R ~vailable for filling' the vacancy. Similar provision is to be found m paragraph 3 of the memorandum regarding constitution of the India.n .Adm.inistrative Service and paragraph 5 of the Indian Civil Adnun1strauve Cadre Rules, 1950. The appointment of a non cadre officer to a cadre post under r. 9 (1) of the Cadre Rules :s a temporary arrangement which may be terminated at any time when the Gov~rnnlent 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 seruor scale of pay. The cadre officer has no right to fill tile vacancy if he is not suitable. The filling of the vacancy by a non-cadre officer tmder 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 meanini? of r. 3 of the. All India Services (Discipline and Appeal) Rules, 1955. The decision in P. C. Wadh1<·u's case(') 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 senbr ~cale of pay. The reversion while cadre officers junior to ~ · ·: continued m the senior scale amounted to not only reduct'· . in rank but also withholding of promot!On. This j.s all th.· J'. C. Wadhwa's case(') decided. The fact in the present case are entirely different. The petitioner was not suit able 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 r& cruits. 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 recruited under r. 8. tt> 119641 4 s.c.R. 598. A B c D F G H .A :e c E F G A. P. SAKSENA v. UNION (Bachawat, !.) 621 Rule 9(3 )(b) (iv) now expressly provides what was already implicit in r. 9 ( 1). Paragraph 4(iv) oJ the I.AS. J:l.xtension to States Scheme pro vided that the posts held by officers included in Lists II 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 a)1:ainst the 25 per cent quota. The posts held by the officers in List II 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 II 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. Respondems Nos. 4, 6, 11, 12, 13, 17 and 18 were from the former Maclhya Pradesh State Service. Some of them were promoted to the Indian Administra tive Service against the 25 per cent quota in the State cadres before the integration of the cadres on November l, 1956. No appointments were made between November 1, 1956 and Novem ber 17, 1956 when the petitioner was appointed \o 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 appoint ments 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 u senior to him Respondents Nos.

10, 11, 12 and 13 are special recruits and their senionty 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, 1954. The other respondents are promotees and their seniority has been fixed under r. 3 ( 3 )(b) of the Regulation of Seniority Rlues and tlle proviso thereto. The petitioner challenges the vires of r. 4 ( 3) of the Recruit ment Rules under which the Central Govcrnm~,1t fran, ed •'.:: Special Recruitment Regulations. The Recruitment Rules were In D. S. made under s. 3 of the All India Services Act, 1951. ), this Court held Garewa/ v. The State of Punjab and Another( 1 that s. 3 was not bad on the ground of excessive delegation of legislative power. The petitioner submits that r. 4(3) of the (I) [1939] Sapp I S.C.R. 622 SUPREME COURT REPORTS [1968) 2 S.C.R. Recruitment Rules is bad on the ground of excessive delegation of legislative power.

Assuming that the doctrine of exce.55ive dele gation ol legislative power applies to rules, we think that r. 4(3) docs n?~ 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 udapt 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 service. As a matter of fact, the Special Recruitment Regulations 1960 framed under r. 4(3) have adapted for the purposes of special recriut:nent t~~ regulations for recruitment by competitive examination. promotion and selection with appropriate modifica tions.

The petitioner next contends that r. 3 ( 3) ( b) of the Regula tion of Seniority Rules makes unjust discrimination between a promotec and a direct recruit in the matter of seniority by arbi trarily 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 1he promotee, his seniority should be counted from the date of his joining the State Civil Service. From the ]XJint of view of the direct recruit the senio rity of the promotee should be counted from the date of his appoint ment to the Indian Administrative Service. Ru!~ 3 (3 )(b) attempts It gives to strike a just balance between the conflicting claims. the promotee the year of allotinent of the junior-most direct recruit officiating continuously in a senior post earlier than the date of If no direct commencement of such officiation by the promotee. r~cruit was of!lciating continuously in a senior post on an earlier date. the seniority of the promote'' ,., :!. '·~rmincd ad hoc. lo our opinion. the rule ic; ill'~ :1rJ-..:; :·,~:-y ::-.r d1-..crin1inatory and is not vio lative of Arts.

14 and ! G of the C<>~'titution. The periti•>· <r next chalicnges the validity of Regulation 3(3) of the Special Recruitment Scnio•ity Regulatt0ns, 1960 on the ground that it offends Arts. 14 and 16 of the Constitution. Ac cording to the petitioner. the relevant rules and regulations have set up an arbitrary double stan~ard for a special reci:uit enlist~ by promotion because Regulation 3(3) of the Specrnl Recruit- A c D E F G H A. P. SAKSENA v. UNION (Bachawat, /.) 623 A ment Seniority Regulations read with r. 3 ( 3) (b) of the Regulation of Seniorit)' 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 dis tinct class. They are neither direct recruits nor promotees. Rule B 9 of the Recruitment Rules does not treat them as direct recruits.