Case: Union of India Vs. H.R. Patankar and Others

first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958, respondent Nos. 3 to 9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent and respondent Nos. 3 to 9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior to respondent Nos. 3 to 9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.The question than arises as to what principle must be followed determining inter s e seniority between respondent Nos. 3 to 9. Now admittedly the same year of allotment was assigned to the first respondent as also respondent Nos. 3 to 9 and between them, the first respondent was appointed to the Indian Administrative Service earlier than respondent Nos. 3 to 9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle if respondent Nos. 3 to 9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority over respondent Nos. 3 to 9. How then, can respondent Nos. 3 to 9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority over respondent Nos. 3 to 9 in the gradation list.5

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]This new sub-rule (3) was on its plain terms prospective in operation and it governed the inter se seniority of only those officers appointed to the Indian Administrative Service on or after 11th April 1958 and did not apply for determining inter se seniority where one of the competing officers were appointed prior to 11th April 1958. This was clear enough on a plain grammatical construction of the new sub-rule (3) but the Government of India thought that its intention should not be left in any doubt whatsoever and therefore on 13th August 1958 the Government of India again amended Rule 4 by substituting sub-rule (3) . The new sub-rule (3) introduced by this amendment substantial reproduced the original sub-rule (3) for determining inter se seniority of officers appointed before 11th April 1958 and so far as the determination of inter se seniority of officers appointed on or after 11th April 1958 was concerned, the amendment inserted a new sub- rule(4) after sub rule (3) which substantially laid down the same provisions as the sub-rule (3) introduced by the amendment of 11th April 1958. Obviously, the object of making this amendment on 13th August 1958 was to clarify that the principle of seniority laid down in the original sub-rule (3) would continue to apply for determining inter se seniority of officers appointed prior to 11th April 1958 and the inter se seniority of officers appointed on or after 11th April 1958 would be governed by the principle of seniority laid down in sub-rule (3) introduced by the amendment of 11th April 1951.Now it is obvious that neither the original sub-rule (3) nor the new sub-rule (3) introduced by the amendment of 13th August 1958 can apply in the present case for determining inter se seniority of first respondent andrespondent Nos. 3 to9, because though the first respondent andrespondent Nos. 3 to9 all have the same year of allotment and the first respondent was appointed to the service after the commencement of the Seniority Rules and before 11th April 1958,respondent Nos. 3 to9 were appointed on 9th June 1961 and 29 August, 1961 that is after 11th April 1958. The old sub-rule (3) as also the new sub- rule (3) introduced by the amendment of 13th August 1958 apply only when the inter se seniority to be determined is that between officers appointed to the service prior to 11th April 1958 and if any one or more of the competing officers is appointed to the service or on after 11th April 1958 this provision on its plain terms would not apply. Similarly neither the new su b-rule (3) introduced by the amendment of 11th April 1958 nor the new sub-rule (3) introduced by the amendment of 13th August 1958 would apply for determining inter se seniority between the first respondent andrespondent Nos. 3 to9, because those provisions would apply for determining inter se seniority only in respect of officers appointed to the service on or after 11th April 1958 and the first respondent having been appointed prior to 11th April 1958 would not fall within this category. There can therefore be no doubt that there was at the material time no rule in the Seniority Rules which laid down the principle for determining inter se seniority between an officer appointed to the service prior to 11th April 1958 and an officer appointed to the service on or after that date. There was clearly a lacuna in the Seniority Rules which failed to provide for this situation. The Government of India was in the circumstances entitled to lay down a ru le for determining inter se seniority in such a situation and this could be done by the Government of India even by an executive order. It is now well settled law that even if there are no statutory rules in force for determining senio rity in a service or even if there are statutory rules but they are silent on any particular subject, it is competent to the Government by an executive order to make appropriate Seniority Rules or to fill in the lacuna in the statutory rules by making an appropriate seniority rule in regard to the subject on which the statutory rules are silent. The Government of India could have therefore in the present case issued an executive order laying down a rule for determining inter se seniority between officers appointed to the service prior to 11th April 1958 on the one hand and officers appointed to the service on or after that date on the other. But the learned counsel appearing on behalf of the Union of India could not s how from the record any such executive order made by the Government of India. There is nothing in the record to show that the Government of India issued any executive order or rule laying down the principle for determining inter se seniority as between officers appointed prior to 11th April 1958 and officers appointed on or after that date. The only argument which could be advanced by the learned counsel appearing on behalf of the Union of India was that such an executive order or rule must be implied from the gradation list issued by the Government of India where respondent No. 1 was shown as junior torespondent Nos. 3 to9. But this argument is plainly unsustainable because the gradation list has to be prepared in accordance with the principle of seniority laid down by the Government either statutorily or by means of an executive order or rule and it is by reference to such principle of seniority laid down with the Government that the validity of the gradation list is required to be judged. The gradation list must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such gradation li st. That would be putting the cart before the horse. If such an argument were to prevail, it would mean the end of the law, for the gradation list would then not be based on any principle or norm determining seniority but it would be open to the Government to issue the gradation list without being fettered by any principle or norm to guide it in the preparation of the gradation list.Thequestion than arises as to what principle must be followed determining inter s e seniority betweenrespondent Nos. 3 to9. Now admittedly the same year of allotment was assigned to the first respondent as alsorespondent Nos. 3 to9 and between them, the first respondent was appointed to the Indian Administrative Service earlier thanrespondent Nos. 3 to9. Moreover, on the date when the first respondent was appointed to the Indian Administrative Service, the principle of seniority which was in force was one set out in the original sub-rule (3) of rule 4 and according to this principle ifrespondent Nos. 3 to9 had been appointed prior to 11th April, 1958 but subsequent to the appointment, of the first respondent, the first respondent would have been entitled to claim seniority overrespondent Nos. 3 to9. How then, canrespondent Nos. 3 to9 be assigned seniority over the first respondent when they came to be appointed subsequent to 11th April 1958. The only fair and just principle of seniority which can be applied in such a situation, as between officers directly recruited through a competitive examination and officers promoted from the State Civil Service and having the same year of allotment, is to regard direct recruits through a competitive examination as senior to promotees from the State Civil Service. We are therefore of the view that the Division Bench of the High Court was right in holding that the first respondent should be assigned seniority overrespondent Nos. 3 to9 in the gradation list.