EX-CAPT. ASHOK Kl1MAR SAWHNaY

1'.

UNION OF INDIA & OTHERS

January 13, 1982

[A.O. KOSHAL, V. BALAKRISHNA ERADI AND R.B. MISRA, JI.]

Re/eastd Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971, Rules 4(1), 6(3) and 8-Inter Pretation of-'Recruitment'-Meaning of. ./'

ResPonC:ents Nos. 2 to 14 were appointed to the cadre of Income-tax Officers, Class I, against vacancies reserved for Scheduled Caste and Schedules Tribes, as a result of a Competitive examination or test as envisaged by sub-rule (3) of Rule 6. The Petitioner was similarly appointed to the same cadre but against a vacancy reserved under sub-rule (1) of Rule 4 for certain officers of the Armed Forces of the Union. He was placed in the imi::ugned seniority list below respon dents Nos. 2 to 14. He made a representation against the seniority assigned to him on the ground tha~ under sub-rule (3) of Rule 6 he was entitled to rank immediately below candidate~ appointed against unreserved vacancies. The representation was rejected by a letter dated 16th March, 1979. The petitioner filed a petition under Art. 32 of the Constitution of India s:eking the issuance of a writ quashing that letter. At the hearing it was not disputed that the petitio11er was entitled to the benefit o:f reservation sub-rule (1) of Rule 4 and to have his seniority determined in accordance with sub-rule (3) of Rule 6. However, it was contended on behalf of the respondents Nos. 2 to 14, inter alia, that the rules of the service had been amended earlier to 1971, so as to place candidates covered by sub-rule (1) of Rule 4 below those who had been appointed against reserved vacancies through a competititive examination.

Accepting the petition, it was

HELD : (1) Sub-rule (3) of Rule 6 is not ambiguous in any manner what soever and lays down in clear terms that the officers appointed against vacancies reserved under sub-rule.(I) of Rule 4 shall rank below candidates who were appointed against unre1erved VacanrieS in the Services concerned through a com. petiye examination, etc. [40 F-G]

2. Respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Schedule Tribes. Clearly therefore, they must rank below the petitioner inasmuch as it caanot be said with aay plausibility that they were appointed against unreserved vacancies. [41 A-BJ ,

3. The argument that the rules of the service in question had been amended to 1971, so as.to place candidates coverved by Rule 4(1) below those who bad been appointed to reserved vacancies through a competitive examination has no substance and makes no difference to tht iOterpretation which is-given above to

A.It. SAWHNEY ' UNlON (Koshar, J.) 39

sub-rule (3) of Rule 6, Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended to the

extent provided for in the Rules. Although the rules regulating the seniority of the petitiopers and respondents Nos. 2 to 14 were so amended earlier to 1971 as to assign to the petitioner seniority below respondents Nos 2 to 14, the situation is Wholly irrelevant to the present dispute because after the ameOdooent brought about by Rule 8 of the Rules, the members of the service to :which the contenting parties belong, have to be governed by 1he later amendment, of which sub-rule

(3) of Rule 6 forms a part. This is the inescapable consequence fl.owing from Rule 8 of the Rules. [41 G-H, 42 A-DJ

4. The word 'recruitment' is comprehensive enough to embrace the content of all the rules proceeding Rule 8 including the fitment of candidates recruited to the service vis-a-vis each other. [ 42 D-E]

ORIGINAL JURISDICTION : Writ Petition No. 1337 of 1979.

(Under article 32 of the Constitution of India). '

V.M. Tarkunde, P.H. Parekh and Hemani Sharma for the • D Petitioner.

Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents.

The Order of the Court was delivered by

KosHAL, J. The short question which falls for determination in this petition under Art. 32 of the Constitution of India praying for the issuance of appropriate writs quashing the letter dated 16th of March, 1979, by which the representation made by the petitioner against the seniority assigned to him in the cadre of Income-tax Officers, Class-I was rejected and he was informed that the seniority list forming an appendix to Annexure 'l' had been correctly framed in accordance with the rules then in force.

2. The answer to the question posed by the petition has to be answered with reference to Rules 4, 6 and 8 of the Released , Emergency Commissioned Officers & Short Service Commissioned Officers (Reser vat.ion of Vacancies) Rules, 19 71 (hereinafter called the Rules). The relevant part of Rule 4(1) reads thus :

4(1) Twenty percent of the 'vacancies in the Indian Foreign . Service, and 25 percent of the vacancies in all the Central Civil Services and posts, Class I, to which these rules apply ................ ..

40 1198~1 j s.c.lt.

A shall be reserved.for being filld by the Btnergency Commissioned.

Officers and. the Short , Service .. Commissioned Officeri; .of the Armed.

ForceH>fthe Union.who wcrcomUJissioned., after.the 1st November, 1962 'but before the 10th January, 1968', and who-

(i) ,,,,, ......................................... ..

(ii) in the caseof.Sllort Service Commissioned Officers ue .

released onthe expiry•of•tlretenure of'th'eir service; or

(iii) .... : ............................................. .

Rule '6 in so far asit is relevant for our purpose provides :

~I) ................................................. .

(2) Seniority inter se of candidates who are appointed against the vacancies. rflllt'ved' uadc!l' sub-l'ule (I) of rule 4 and allotted to a particular year shall be determined accordillg to the merit list prepared by tl:le Commission on the basis of the results of their perfor• mance at the examination or test or interview.

(3) All candidates who have been appointed . against: tho

vacancies reserved under sub-rule (I) of rule 4 shall rank below tho<1:andidates who Wire appointed1again1t unreserved vacancies in the services of posts through the competitive examination or test or interview conducted by the CommiSsh>n corresponding to the year to which the former candidates are-allotted.

It is not disputed thaMhepetitionerian officer who is entitl•. ed to the benefit of' reservation underthe11bove abstracted portion of Rule 4(1) and to have his seniority accordance with sub-rule

(3) of Rule 6.

As we read the subrole last mentioned we-do not find it to be ambiguous in any manner whatsoever.

It lays down in clear terms that the officers appointed against vacancies reserved under sub-rule (I) of Rule 4 shall rank.below candidates who were appointed against unreserved vacancies in the services concerned. through a competitive examination,.etc. Respondents Nos. 2 to 14 who have been placed in the impugned seniority list above the petitioner were appointed to the .cadre of Income-tax Officers,. Class I through a competitive .e; tamination or test aunvisaged. by sub-rule(3)

of Rule 6.

Now if they were. appointed, aginst unreserved. vacaD::

cis, they are eniitled to rank above the petitioner but not otherwise.

--+

A.K. SAWHNEY v. UNION (Koshal, J.) 41

It is conceded before us that respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Scheduled Tribes.

Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.

3, Mr. Abdul Khader appearing for the Union of India has contested the interpretation just above placed by us on sub-rule

(3) of Rule 6.

According to him that interpretation makes the sub-rule retrospective in operation, which it is not.

We agree that the subrule is intended to be prospective only and that the above interpretation would be operative only after the date on which the sub-rule was promulgated and not before that. But then that means that every seniority list prepared after the date of the promulgation of the sub-rule would be governed by it. Similarly, every promotion made and every question relating to seniority cropping up after the date of the promulgation of the sub-rule (which is 28th August,

1971) shall be determined according to that sub-rule. No question of retrospectivity of the sub-rule is thus involved. Of course, the interse seniority of officers of the cadre prevailing upto 28th August, 1971 bad to be determined under the rules as they existed before that date and any promotions made earlier to that date would continue to be good if made in accordance with those rules.

However, the position changed with the promulgation of the Rules and any promotion made thereafter has to conform to them.

Faced with the above situation Mr. Abdul Khader argued that the word, 'unreserved' in sub.rule (3) of Rule 6 would embrace the vacancies reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes who bad joined the cadre through open competition, etc., because the sub-rule meant to take within its ambit all such persons who had been recruited in that manner. The logic of the argument is not clear to us because it makes the whole subrule meaningless.

If the argument were to be accepted, the use of the word 'unreserved' would be wholli uncalled for and we just cannot bold that the word is redundant, forms part as it does of subordinate legislation. The word 'unreserved' can obviously not be .equated with its antonym, that is, 'reserved', and has to be applied only to vacancies which do not fall within the reserved categories.

Mr. Abdul Kbader took another point and that was to the effect that the rules of the servic~ ill uestion haq been amndq

SUPREME COURT REPORTS

( 1982] 3 S.C.R.

 earlier to 1971 so as to place candidates covered by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination. That may well have been so but then that makes no difference to the interpretation which is given above to sub-rule (3) of Rule 6.

Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended io the extent provided for in the Rules. If the rules regulating the seniority of the petitioner and respondents Nos. 2 to 14 were so amended earlier to 1971 as' to assign to the petitioner seniority below respondents Nos. 2 to 14, the situation would be wholly irrelevant to the present dispute because after the amendment brought about Rule 8 of the Rules, the members of the service to which the contested parties belong, have to be governed by the amendment of which sub-rule (3) of Rule 6 forms a part. This is the inescapable consequence flowing :rrom Rule 8 of ·

the Rules.

We may take note here of the only other argument raised by Mr. Abdul Khader and that is that Rule 8 regulates only the recruitment of persons to Central Civil Services and Posts, Class I, and not to their conditions of service. We do not find any substance in this argument either..

The word 'recruitment' is comprehensive enough to embrace the content of all the mies preceding Rule 8 including the fitment of candidates recruited to the service vis-a.vis each other.

7. In the result, we accept the petition, quash the seniority list abovementioned as well as the letter by which the representation there against made by the petitioner was rejected and direct respondent No. l to re-frame the seniority list assigning the petitioner seniority in accordance with law as explained above. There will be no order as to costs.

N. K. A. .Petition allowed.