ivil Appeal Nos
4032  4033 of 1989
From the Judgment and Order dated 3041988 of the Rajasthan High Court in D B Civil W P Nos 694  696 of 1988
Appellant in person in C A No 4032 of 1989
Rajinder Sachher and Ravinder Bana for the Appellant in C A No 4033 of 1989
Aruneshwar Gupta for the Respondents in both the appeals
The Judgment of the Court was delivered by PUNCHHI J
The identification of the highest postposts in the Rajasthan Administrative Service capable of being filled by merit alone under sub rule 7 of 28 B of the Rajasthan Administrative Service Rules 1954 hereafter referred to as the Rules  is the search undertaken in these two connected appeals by special leave
The respective appellants herein are Ajeet Singh Singhvi who appeared in person and Jagbir Singh who appeared through learned counsel
Both the appellants at the time they moved the Rajasthan High Court by means of their respective writ petitions were high ranked officers in the Rajasthan Administrative Service but found their further chances to promotion obstacled on account of the amendments caused in the said Rules with effect from July 17 1987
Broadly stated on such amendments a Super Time scale was created which statedly was to remove stagnation in service
The contention of 581 the appellants before the High Court was and is that the creation of Super Time scale did not have the automatic effect of creating highest postposts to be filled by merit alone and that the posts which Super Time scale was attractive remained higher posts  in contrast to highest post  available to the members of the Rajasthan Administrative Service on the prescribed percentage of 50 percent on merit and the remaining fifty percent on seniority cum merit
The appellants challenged the vires of the amendments dated 17 7 1987 for confining the selection to the highest posts made thereafter solely on the basis of merit
Before the High Court however the question of vires of the amendments was given up and thus the High Court invited its attention to the following two questions i whether the Super Time scale isare the highest postposts in the service and ii if it is so whether that postposts isare to be filled on the basis of seniority cum merit in the proportion of 5050 or on merit alone in accordance with sub rule 7 of Rule 28 B of the Rules The High Court by a long and an elaborate judgment dated 3041988 traced the history of the Rules and the amendments made to rules 28 B and 32 from time to time expressed the opinion that Super Time scale postposts waswere the highest postposts in the service and those required to be filled on merit alone and not in the proportion of 5050 on the basis of merit and seniority cum merit
It is to challenge that view that these matters are here before us and we have had the opportunity of hearing the party in person and learned counsel on both sides
We begin by taking note that the word highest  has not been given a definitive meaning in the Rules and has to be understood and employed in the context in its ordinary meaning and diction
Rule 6 prescribes the strength of the service
It mandates that the strength of post in each grade of the service shall be such as may be determined by the government from time to time
The proviso thereto leaves all the possible flexibility with the government in the creation of any post of any kind and nature and for its abolition
The latest notification in that regard as was placed before us is Notification No F12 Karmik Ka IV79 dated January 12 1988 issued from the Department of Personnel and Administrative Reforms Government of Rajasthan specifying that as per Rule 6 of the Service Rules the strength of posts 582 in each grade of Rajasthan Administrative Service is determined therein
The said notification is found in a compilation prepared by the Rajasthan Administrative Service Association amended upto June 191988
It demonstrates posts with their titles divided into seven categories
The first category is of Super Time Scale posts in the grade of Rs 3900 125 4400 150 5300
The second category is of selection scale post in the grade of 2978 75 3050 100 3650 125 4400 150 4700
Thereafter there are lesser pay scale given in the third category of senior scale posts and in the fourth category junior scale posts followed by special ex cadre posts training reserve and leave reserve posts
The Super Time Scale posts are 25 in number and those posts are named and numbered as follows section NO
Name of the Post No of Posts 1
Director of Agriculture Marketing  Ex 1 Officio Dy
to Govt
Director Local Bodies 1 3
Commissioner Devasthan Deptt
Revenue Appellate Authority 10 5
Principal APRTS TONK 1 6
Divisional Commissioners 6 7
Director HCM RIPA Udaipur 1 8
Commissioner Co
Cum R A A Bikaner1 9
Commissioner TAD 1 10
Commissioner Desert Dav
Commissioner Transport 1 25 Now whether these posts are the highest posts in the Rajasthan Administrative Service or are just higher posts so as to identify the criteria applicable for promoting to these posts their personnel
Service  has been defined in Rule 4 L to mean the Rajasthan Administrative Service
Sub rule 7 of Rule 28 B prescribes that 583 selection for promotion to the highest postposts in the State Service shall always be made on the basis of merit alone
As said before highest posts  has nowhere been defined
Prior to the amendment of July 17 1987 sub rule 7 read as follows Selection for promotion to the highest post or highest category of posts in the State Service shall always be made on the basis of merit alone According to the appellants prior to July 17 1987 the highest post was never identified and equally the highest category of posts were nowhere visible
The posts now falling in the Super Time Scale tabulation of which stands incorporated above were always considered as higher posts and in terms of sub rule 6 of rule 28 BSelection for promotion to all other higher postshigher category of posts in the State Service were required to be made on the basis of merit and seniority cum merit in the proportion of 5050
The proviso however to sub rule 6 provided that if the Committee appointed under Rule 28 was satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules
The two appellants maintained that before the introduction of the Super Time scale vide amendment dated July 17 1987 there were only three categories namely ordinary scale posts alternatively known as junior scale senior scale posts and selection scale posts in the Service and these continued as such despite the amendments
Before the High Court the exercise to identify the Super Time selection posts would have been easy had the government notification dated 12th January1988 been brought to its notice
In any event after the issuance of the Government notification dated 12th January 1988 those very posts in the Service have now been designated as junior scale senior scale selection scale and super time scale posts and for valid administrative reason have Super Time Scale posts been treated as highest posts even though they may have hitherto belonged to the category of higher posts the State Service remaining the same
Rule 15 prescribes eligibility for consideration for promotion on the basis of qualifying service for promotion
Rule 28 prescribes the procedure for promotion and postulates the Constitution of a Commitee
Rule 28 B so far as is relevant for our purpose is called out below 28 B REVISED CRITERIA ELIGIBILITY AND 584 PROCEDURE FOR PROMOTION TO JUNIOR SENIOR AND OTHER POSTS ENCADRED IN THE SERVICE i As soon as the appointing authority determines the number of vacancies under rule 9 of these Rules and decides that a certain number of posts are required to be filled in by promotion it shall subject to provisions of sub rule 9 prepare a correct and complete list of senior most persons who are eligible and qualified under these Rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned
2 For appointment to the Service by promotion the eligible persons included in the list mentioned in rule 28 shall be considered
3 xxxxxxxxxxx 4 Selection for promotion in the reguler line of promotion from the postposts not included in Service to the lowest post or category of post in the Service shall be made strictly on the basis of merit and on the basis of seniority cum merit in the proportion of 5050
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year selection by promotion on the basis of seniority cum merit may be made in the manner as specified in these Rules
5 Subject to the provisions of sub rule 7selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority cum merit from amongst the persons who have passed the qualifying examination if any prescribed under these Rules and have put in at least five years service unless a different period is prescribed elsewhere in these Rules on the first day of the month of April of the year of selection on the post or category of post from which selection is made 585 PROVIDED that in the event of non availability of the persons with the requisite period of Service of five years the Committee may consider the persons having less than the prescribed period of Service if they fulfill the qualifications and other conditions for promotion prescribed elsewhere in these Rules and are found otherwise suitable for promotion on the basis of seniority cum merit
6 Selection for promotion to all other higher posts or higher categories of posts in the States Service shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 5050
PROVIDED that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these Rules
EXPLANATION If in a Service in any category of post number of posts available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion of 5050 the following cyclic order shall be followed The first vacancy by seniority cum merit The subsequent vacancy by merit The cycle to be repeated
7 Selection for promotion to the highest postposts in the State Service shall always be made on the basis of merit alone PROVIDED that a in a Service or Groups or Sections thereunder where there are only two scales eg junior scale or senior scale and there is only one promotion then promotion shall be made on the basis of seniority cum merit alone b in a Service or Groups or Section thereunder where there are three scales eg junior scale and selection scale and there are two promotions then promotion shall be as under 586 i first promotion on the basis of seniority cum merit
ii second promotion on the basis of seniority cum merit and merit in the proportion of 5050 c in Services or Groups or Sections thereunder where there are more than two promotions then first promotion shall be made on the basis or seniority cum merit alone and promotions to subsequent higher posts shall be made on the basis of seniority cum merit and merit in the proportion of 5050 except to the highest post
PROVIDED further that if the Committee is satisfied that suitable persons are not available for selection by promotion to highest postposts strictly on the basis of merit in a particular year selection by promotion to highest postposts on the basis of seniority cum merit may be made in the same manner as specified in these rules
8 The persons having been selected and appointed by promotion to a post or category of post on the basis of merit shall be eligible for promotion to the next higher post or category of post which is to be filled in by merit only when they have put in after regular selection at least five years  service unless a higher period of Service is prescribed elsewhere in these Rules on the first day of the month of April of the year of selection on the post or category of post from which selection is to be made PROVIDED that the condition of five years service shall not be applicable to a person if any person junior to him is eligible for consideration for promotion on the basis of merit
PROVIDED further that in the event of non availability of persons equal to the number of vacancies to be filled in eligible for promotion in the category of post next lower from which promotion is made the Committee may consider the persons having less than five years  service if they are found otherwise suitable for promotion on the basis of merit alone
587 EXPLANATION If any doubt arises about the categoriesation of the post as the lowest next higher or highest post in the Service the matter shall be referred to the Government in the Department of Personnel and Administrative Reforms whose decision thereon shall be final
9 The zone of consideration of persons eligible for promotion shall be as under i No of vacancies No of eligible persons to be considered a for one vacancy Five eligible persons b for two vacancies Eight eligible persons c for three vacancies Ten eligible persons d for four or more vacancies Three times the number of vacancies
ii Where the number of eligible persons for promotion to higher post is less than the number specified above all the persons so eligible shall be considered
iii Whereadequate number of candidates belonging to the Scheduled Castes or the Scheduled Tribes as the cases may be are not available within the zone of consideration specified above the zone of consideration may be extended to five times the number of vacancies and the candidates belonging to the Scheduled Castes or the Scheduled Tribes as the case may be and not any other coming within the extended zone of consideration shall also be considered against the vacancies reserved for them
iv For the highest post in a State Service a if promotion is from one category of post eligible persons upto five in number shall be considered for promotion b if promotion is from different categories of the post in the same pay scale eligible persons upto two in number from each category of posts in the same pay scale shall be considered for promotion 588 c if promotion is from different categories of posts carrying different pay scales eligible persons in the higher paying scale shall be considered for promotion first and if no suitable person is available for promotion on the basis of merit in the higher pay scale then only the eligible persons of other categories of posts in lower pay scales shall be considered for promotion and so on and so forth
The zone of consideration for eligibility in this case shall be limited to five senior most eligible persons in all
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a XXXXXX b XXXXXX c XXXXXX 12
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XXXXXX Rule 32 after the amendment reads as follows 32
APPOINTMENT TO SENIOR POST 1 In accordance with vacancies determined according to the provisions laid down in rule 9 appointment to senior scale selection scale and super time scale post shall be made by Government from amongst the members of the Service in accordance with the selection having been made on the basis of merit and seniority cum merit on the recommendations of a Committee which shall consist of following 1
Chairman Rajasthan Public Service Commission 
Chairman 2
Chairman Board of Revenue 
Member 3
Secretary to Government in Super time scale of the 589 Indian Administrative Service as may be nominated by the State Government 
Member 4
Special Secretary to Govt
in the Department of Personnel 
Member Secretary PROVIDED that in case any Member or Member Secretary as the case may be constituting the Committee has not been appointed to the post concerned the officer holding charge of the post for the time being shall be the Member or Member Secretary as the case may be of the Committee
2 Except as provided in this rule the procedure and the principles for selection by merit shall in so far it may apply be the same as provided in rule 28 B
For selection by seniority cum merit the Committee shall consider the cases of all the persons eligible for promotion by examining their Confidential Rolls and Personal Files and interviewing such of them as they may deem necessary and shall select a number of candidates equal to the number of vacancies likely to be filled by promotion by seniority cum merit
PROVIDED 1 that appointment to the senior or selection grade post or super time scale post may be made by Government by appointing thereto temporarily a person eligible for appointment by the promotion to the Service under the provisions of these Rules
2 No appointment made under proviso 1 above shall be continued beyond a period of one year without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur
Argument was sought to be built that in Rule 32 Super Time scale was introduced with effect from 17 7 1987 whereunder the Government was required to make an appointment on the basis of merit and seniority cum merit on 5050 basis in accordance with subrule 6 of rule 28 B in the absence of identification of posts
The argument looses its thrust in entirety when viewed on the basis of sub rule 2 whereunder the procedure and principles for selection by merit 590 shall in so far it may apply is the same as provided in rule 28 B which embodies sub rule 7 as well
We have in the context to apply the Rule of harmonious construction
In The J K Cotton Spinning  Weaving Mills Co Ltd vs The State of Uttar Pradesh  Others  this Court applied the rule of harmonious construction even to subordinate legislation and laid down as follows In applying the rule however we have to remember that to harmonise is not to destroy
In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect
These presumption will have to be made in the case of rule making authority also Then again in Lt Col Prithi Pal Singh Bedi etc
vs Union of India  Others at pages 404 05 it was observed as follows The dominant purpose in construing a statute is to ascertain the intention of the Parliament
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity
The first question to the posed is whether there is any ambiguity in the language used in rule 40
If there is none it would mean the language used speaks the mind of Parliament and there is no need to look somewhere else discover the intention or meaning
If the literal construction leads to an absurdity external aids to construction can be resorted to
To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed
This necessitates examination of the broad features of the Act
 On the application of above principles it is noticeable that the terms higher post  and highest post  occuring in Rules 28 B and 32 by all means are relative ones expected to be created in singular or plural terms under Rule 6 whereunder the strength of posts in each grade was determinable by the government from time to time
Sub rule 7 even before the amendment of 17 7 1987 postulated a highest postposts capable of being filled on the basis of merit alone
The fact that they 591 remained un identified gives no basis to the plea that the State was incapacitated to identify at a later stage the highest posts in the State Service required to be filled on the basis of merit alone
It seems to us on a close analysisand on the language employed in Rules 28 B and 32 that the highest postposts conceptually were part of the Rules but their effectuation and identification has surfaced only by means of the amendments of July 17 1987 and the notification of January 12 1988
Another significant factor which leans towards such an interpretation is the stance of the State which militates against the views canvassed on behalf of the appellants
There is an inbuilt safety kept in the explanation added to sub rule 8 of Rule 28 B which prescribes that if any doubt arises amongst others about the categorisation of the posts as the highest posts in the Service the matter shall be referred to the government in the Department of Personnel and Administrative Reforms whose decision there on shall be final
The appellants could easily have raked up and got referred the matter to the government to have a decision thereon
The view of the government in maintaining that the Super Time scale posts are highest posts is not only a bare and literal interpretation given by it to the Rules but also is reflective of its policy in this regard and no decision needs to be given by the Court in normal circumstances to amend or alter such policy
In such a realm even contemporaneous exposition of a similar rule in an other set of rules cannot play their part to influence either the Court or the Government to give the same interpretation or exposition to the rules requiring interpretation herein
Besides the government being the author of the rule has kept to itself as a matter of prudence the right to remove any ambiguity about the identification of any post including the highest postposts
The stance of the government in this regard should have clinched the matter but since the same had been put forth as a defence in the High Court its view nonetheless are entitled to great weight and the burden of the appellants to lift that weight an uphill task by all means has remained unfulfilled
To sum up our interpretation of the rules is in accord with the interpretation of the rules as put by the High Court holding that the Super Time scale posts are the highest posts in the Service and selection for promotion and appointment on that basis in the Service has to be made on the basis of merit alone and not on the basis of seniority cum merit and merit in the proportion of 5050
In the facts and circumstances of the case however we pass no order as to costs while dismissing the appeals


Summary:
Under the West Bengal Entertainments and Luxuries Hotels and Restaurents Tax Act 1972 as amended in 1974 the appellants were called upon to make ad hoc payment of luxury tax calculated at Rs240000
A representation from the Hotel Association to the Respondents having being turned down the appellants filed Writ Petition before the High Court challenging the constitutional validity of the Act
The Writ Petition was dismissed by a Single Judge
On appeal the Division Bench declined to interfere holding that there was no dicrimination and thus there was no violation of Article 14 of the Constitution
Aggrieved the appellants preferred the present appeal
Dismissing the appeal this Court HELD 1
The Luxury Tax charged under Section 4 of the West Bengal Entertainments and Luxuries Hotels and Restaurants Tax Act 1972 is not discriminatory and is constitutionally valid for the reasons stated in the judgment of this Court in a similar matter wherein the same contentions were urged
467E F Ms Spences Hotel Pvt Ltd  Anr
vs State of West Bengal and Ors 1991 1 SCR applied
Whatever has been stated by this Court in relation to Section 4 of the Act would be equally applicable to Section 3 of the Act
467F East India Hotels Ltd vs State of West Bengal AIR 1990 SC 2029 relied on