Case: K.B. Shukla &amp; Others Vs. Union of India &amp; Others

2. As per Government Notification No. F. 1/12/58, Delhi, dated March 15, 1961, the President of India in exercise of his powers under the proviso to Article 309 of the Constitution framed Delhi and Himachal Pradesh Civil Service Rules, 1961 (hereinafter called the 1961 Rules3. Rule 3 of 1961 Rules constituted the Delhi and Himachal Pradesh Civil Service consisting of two grades, namely, Grade I and II. The posts in Grade I were Central Civil Posts Class 1 (Gazetted) and those in Grade II were Central Civil Posts Class II (Gazetted). Rules 5 and 29 of the 1961 Rules, respectively provide for: (in the method of recruitment to the Service: and (ii) the manner in which the seniority of the persons so appointed was to be determined4. Rule 5 prescribes these method of appointment to the service, namely:(a) ?by direct recruitment in the manner specified in Part IV of these rules to not more than 50 per cent of the substantive vacancies which occur from time to time in the permanent, strength of the service; and(b) ?by selection? to the remaining substantive vacancies, in the manner specified in Part V of these rules from amongst:(i) officers who are substantively borne on the cadre of Tehsildars employed in either of the Union Territory of Delhi or Himachal Pradesh; and(ii) officers who hold substantively any of the posts mentioned in Schedule II, Parts A and B5. Proviso I of Rub 5 indicates a third method of appointment to the Service. Under the Proviso, ?for period of three years from constitution of the service if a sufficient number of suitable officers is not available under clause (b), the requisite member of officer may in consultation with the Commission, be appointed to the Service by transfer of members of a State Civil Service or other Service. Proviso II to the Rule reserves the right of the Central Government to hold a vacancy in abeyance, or to fill it on an officiating basis.e (2) of Rule 5 empower the Government: ?If the exigencies of service so require?, to vary, in consultation with the Commis-sion, the percentage of vacancies to be filled by each method specified in6. Rule 17 (to which Rule 5 was subject) of the 1961 Rules entitled the Central Government to appoint at the commencement of these Rules, to the Service any person who at such commencement was holding any of the posts specified in Schedule I or any equivalent post in the State of Punjab and Uttar Pradesh7. Thus, the personnel of Service, under the 1961 Rules, was to be composed of:(a) Persons initially appointed under Rule 17(b) Direct recruits under clause (a) of Rule 5(1) to the extent of 50 per cent of the substantive vacancies in the authorised per-manent strength(c) Promotees under clause (b) of Rule 5(1)(d) Transferees under the proviso to clause (b) ofe (1) of Rule 58. Rules 6 to 12 of the 1962 Rules relate to direct recruitment. Rule 9 requires the Commission to forward to the Central Government a list arranged in the order of merit of the candidates who have qualified in a competitive examination9. Recruitment by selection of persons mentioned in clause (b) ofe (1) of Rule 5is dealt with in Rules 13 to 16. Rule 13 provides for selection by a Selection Committee. The selection was to be made on the basis of merit and suitability with due regard to seniority10. Rule 18 of the 1961 Rules provides that all appointments to the Service shall be made to Grade I or Grade II and not against any specific post included in the Service11. Rule 29 of the 1961 Rules provides with regard to fixation of seniority of persons recruited to the 1961 Service from the various sources indicated above. This rule reads as under: The Central Government shall prepare a list of members of the service arranged in order of seniority as determined in the manner specified below:(i) In the case of persons appointed on the result of competitive examination, and by selection under clause (b) of thee (1) of rule 5, seniority in the service shall be determined by the order in which appointments are made to the Service;(a) persons recruited on the results of competitive examination in any year shall be ranked intere se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited on the basis of an earlier exami-nation being ranked senior to those recruited on the basis of later examination(b) the relative seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names arranged in the list pre-pared under Rule 14(ii) The seniority of members of the Service appointed by trans-fer under the first proviso toe (1) of rule 5, and of those appointed at the initial constitution of the Service in accordance with provisions of Part VI of these rules, shall be determined ad hoc by the Central Government in consultation with the Commission, due regard being had to the posts previously held by them under the Central Government/State Government and the length of Service rendered by them therein:Provided that in the Case of persons appointed under the first proviso toe (1) of rule 17, if two or more persons belong to the same parent service or Department are thus appointed, they shall be ranked inter se in the order of the relative seniority in the parent service or Department, as the case may be(iii) The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion under Rule 5.?12. Rule 31 of the 1961 Rules require the members of the Service to be appointed to the Selection Grade in consultation with the Union Public Ser-vice Commission on the basis of merit with due regard to Seniority.e (2) of rub 31 provided that an officer with a minimum of 12 years? service in Grade II shall be eligible for being considered for appointment to the selection Grade provided that if any persons in Grade II was consi-dered for promotion to the Selection Grade, all persons senior to him in this Grade shall also be considered irrespective of whether or not they fulfilled the requirements as to the minimum of 12 years? service13. A combined competitive examination known as the Indian Administrative Service etc. Examination 1962, was conducted by the Union Public Service Commission for direct recruitment to the various Central Services, including Delhi and Himachal Pradesh Civil Service. The appel-lants appeared in this examination, and on being declared successful, opted for and were appointed to the Delhi and Himachal Pradesh Civil Service, vide Government Notification No. F.i (1) of December, 20, 1962 and were confirmed in December, 196414. In 1965, the President of India framed the Delhi Himachal Pradesh and Andaman and Nicobar Islands Civil Service Rules, 1965, (here-inafter referred to as DHANICS Rules, 1965) in exercise of his powers under Article 309 of the Constitution, under the Government of India, Ministry of Home Affairs Notification No. F. 1/1/65/DH (S) (i), dated November 8, 1965, to be effective from December, 1, 1965, and thus the Service, shortly called the DHANICS, was constituted under Rule 3 of these Rules15. The 1961 Rules were repealed by Rule 37 of the DHANICS Rules, 1965, and the appellants herein, who were originally appointed and confirmed in the Delhi Himachal Pradesh Civil Service, became, by the operation of rule 17, members of the DHANICS16. The main difference between rule 5 of the 1961 Rules and rule 5 of the DHANICS Rules, 1965 is that while under the former, persons could be appointed to the service by transfer from a State Civil Service or other service, within a period of three years only after the constitution of the 1961 Service: under the DHANICS Rules of 1965, such persons could be appointed ?at any time?. Nevertheless, under both the Rules, such appoint-ments by transfer could be made only if suitable officers in sufficient number were not available under clause (b) of rule 5(1)17. Subsequently, on November 3, 1966, the first proviso to rule 5(1) of the DHANICS Rotes was amended, vide Home Ministry Notification No.6 DS (S), enabling the Central Government, in consultation with the Commission, to appoint to the Service, by transfer, members of a State Civil Service, if in the opinion of the Central Government, the exigencies of the service so require. Such appointments by transfer could only be made upto December, 1, 196718. Respondents 3 to 10, who belonged to different State Civil Ser-vices, were transferred to the DHANICS. Respondents 3 and 4 were appoin-ted to Grade I by Home Ministry Notification No.S (S), dated November 29, 1967, and Respondents 5 to 10 were appointed to Grade II by Home Ministry Notification No. F., dated November 29, 1967. As a result of these transfers, the appellants, who were already members of the DHANICS, became junior to respondents 3 to 1019. The appellants on March 12, 1968, filed a writ petition in the Delhi High Court, challenging the constitutional validity and legality ofe (3) of rule 5 of the DHANICS Rules, 1965, on the ground that it does not provide any guidelines to determine the exigency of the Service and is therefore violative of Articles 14 and 16 of the Constitution; that there was no exigency of the Service (DHANICS) which required the appointment of respondents 3 to 10 to that Service by transfer from the respective State Civil Services. It was also contended that the impugnede (3) of rule 5 adversely affects the existing rights of the writ petitioners and the terms of service on which they were appointed20. Respondents 3 to 10 resisted the petition and filed a counter affidavit on March 30, 1968, while the appellants filed a rejoinder affidavit on April, 2, 196821. The writ petition was heard by a Division Bench of the High Court which held that the power conferred by the impugned rules to make appointments to the DHANICS by transfer, on the Central Government, is not unguided and its exercise is controlled, and that the formation of the opinion on ground of exigency is not wholly subjective and is subject to scrutiny of the Courts to a limited extent. On these premises it held that the impugned rules were valid and did not violate Article 14 of the Consti-tution. The High Court also found no substance in the appellant?s conten-tion thate (3) of rule 5, affects their seniority in DHANICS and that respondents 3 and 4 could not have been appointed to selection posts. In the result, it dismissed the writ petition by a common judgment; but granted a certificate under Article 133 (l)(c) of the Constitution22. This is how the appellants have now come in appeal before us.

Reasoning:
28. In the instant case, although there is a general allegation of mala fides, benefit of specific details or particulars, nothing of this kind has been establishedThere is no good reason to doubt the correctness of the circumstances set out in thet filed on behalf of the Government of India. In view of the same, we have no hesitation in holding, in agreement with the High Court, that the formation of the Government of India?s opinion as to the existence of exigencies of service requiring appointment of Respon-dents 3 to 10 to DHANICS by transfer from their parent State Services, rested on good grounds and the exercise of this power under sub rule (3) of Rule 5 of DHANICS Rule 1965, was not vitiated by mala fides. Indeed, the charge of mala fides has not been seriously pressed before us30. This takes us to the third contention advanced by the appellants31. The argument is that the appointment of Respondents 3 and 4 directly to Grade I of the Service and that of 5 to 10 to Grade II of the Service, adversely affects the rights of the appellants in the matter of promo-tion to the Selection Grade, and their seniority. The point sought to be made out is that the Government should not have planted these respondents over the heads of the direct recruits, but for the purpose of seniority ought to have clubbed them with the promotees, so that their senioritys the direct recruits were fixed by rotation undere (iii) and not undere (ii) of rule 2933. In the instant case, Respondents 3 to 10 are of the seniority of various years between 1946 and 1961, taking their length of service in their respective State Services into consideration. As against this, the petitioners were appointed to the Service in December, 1962. Consequently, if the Respondents were otherwise found suitable, their placement in the seniority above the appellants was quite in accord with the Rules and fairplay34. As regards promotion to the Selection Grade, no member of the Service can claim promotion as a matter of right. Further, undere (ii) of Rule 31, no officer is eligible for being considered for appointment to the Selection Grade unless he has put in a minimum of 12 years? service in Grade II. In the instant case, at the time of the appointment of Respon-dents 3 to 10, the appellants had hardly put in 5 years? service. They completed 12 years? service only on December, 20, 1974. On the other hand, Respondents 3 and 4 had put in more than 12 years of service in their respective State Services and even the last of them would be eligible for appointment to the Selection Grade in 1973. This being the position, by no stretch of imagination, it can be said that the chances of promotion of the appellants to the Selection Grade were adversely affected by the appointment of Respondents 5 to 1035. It will not be out of place to mention here that of the two respondents, who were appointed by transfer to Grade I of the Service, one has since died and the other has retired from Service.