H.V. PARDASANI, ETC.

UNION OF INDIA & ORS.

March 12, 1985

[P.N. BHAGWATI, AMARBNDJU. NAtH SBN & RANGANATH MISIA JJ.

Central Secretariat Serv .ce Rules - Rules 12 and 13 (5)-Ctntral Secretariat Service (Promotion z to Grade I and Selection Grade) Regulations 1964, Regulation 5(2}(c).

Secretariat Service-Section Officers--Promo!ion to Under Secretary- Drawing of Select List of Section Officers-fixation of seniority between promotees and direct recruits - How determined - Service scheme - Whether D ultra -Vires Articles 14 and 16.

Constitution of India 1950, Artie/es 14 & 16

Central Secretariat Service Scheme - whether ultra vires.

E The Central Secretariat service is composed of four grades . (i) Selection

Grade (Deputy Secretary) ; (ii) Grade I (Under Secretary) ; (iii) Section Officers' grade ; and (iv) Assistants' grade.

Ruic 12(2) of the Central Secretariat Service Rules provides that promotions to the grade of Under Secretary be made from amongst members belonging to the grade of Section Officers and Grade 'A' Officers of the Central Secretariat Stenographers' Service. Under role 12(4) the Central Government framed the Central Secretariat Scrvict (Promotion to Grade I nd Selection Grade) Regulations, 1964.

Regulation S (2) (c) provided that the names of officers appointed to Section Officers' Grade before the appointed day and included in the Select List of Section Officers at the initial Constitution shall be arranged in the order of their seniority as determined before that day, Additions to this List shall be made by including officers appointed to the Section Officers' Grade after the appointed day through the select List for the Grade, officers appointed on the basis of an earlier select list being placed above those officers appointed on the basis of a later select list.

This Select List was contemplated to cover the entire Secretariat and was, therefore, required to reflect all the select lists of the cadre of Section Officers.

In this single list of eligible Section Officers the names of the directly recruited Section Officers op le basis of the combine\\

'1 it. v. P~ASA!'J r. t!NifoL

co01petitive. examinations. and arranged in the order or merit in: such _exwnina.-·

A,, tionS had to. be. intCfpO'tated aCcordini to the quoti_or_ vacancies reseryed. for, d~- recfuits at th~ time_-Of the_ir_ ec_rutment._: , ,. , .. :

- In. the writ petitios to' this Court, the -~i, tioners. who. beloiied.'... to; the:. cadre of Sections Officers in the Central, Secretariat, Service . challelii:ed the~ combined seniority list. of all the·Section. OfficCrs belonging_, to, the Service: and sought. a direction that_ the.select list in Grade I of the Service_ be.recast;·, tha.t some ofthe direct recruits - includCd in the eligibility. list of Section_' Officers should be omitted, alld that a directionbe issued to. apPoint promo tees to Grade I with effect from the_ date on which junior directly recruited Section Officers have been appointed to GradC I. ThC "vires or the' -note" below Rulo 12," Rule" ll(S)>and' Regulation "'3(3) of the FoUrtb Schedule were also' assailed as being ultra-Vires Ariicles 14 ,. _and _ 16 .. It' Wits fllithef 'Coiitended; that -the seniority bCtween · the direct_ reCruits and proriioteeS: _iri :the irade Or Section Officers has to be fixed on the baSis of leD.gtb oi 1 tvicC -ID the:' glade) and not by the process envisaged underthe Rules and Regulations .

. , 1Jie - poncknts '- Contested .. :: the. petitions alleging that the ~;~isionr. for fixing seniority has been made by the statutory Rules and that the combinedt seniority list as also the eligibility list were in . acCordancC.; with the statutory\.

scheme. . , ·-... h. -:::·

_ Disissing he Writ Petitios! ,-l _,,- .• _, ,,. 't.

HELD : l.

In the absence of any special prov1s1ons regul:iting: determination of seniority, length of continuous service in any particular grade

'.

c )

D !I

would be the basis for detefmining serii0rity 1 iri that gr.ide. 1 'If'ci rote prescri~ E bes a method of fixation of i"nter se seniority, the normal practice would ·! not apply and the rule shall prevail} "[29JH i 292A] ' i" ' ,",:" l" • "I , ;1 " l

The scheme does not'appCat I to. be arbitrary; r," The"R; ues and the

---J-_ Regulations intended to give effect to the scheme arc not ultra vjres of either Article 14 or-Article'.16 of the Coll.stitutiOn~. , (294A) .... ; -· .. :,) . ·/ '',

3. The scheme constituting a Service to be manned both by direct recruits as also promo tee is 1 unexceptionable •.. Presciiption : of qt.iota: :bicomes necessary to work. out s_uch schemC and 'rota is a well accepted method for giving effect thereto.

Seniority based upon rota is not open to attack.

[293G] ' ... ' ' . ' ; - ; -1 . . '. ; . .. .• ~·. ~.

,, - . ' '-,., . ~!1 ~-: ~:~.,- .. 4.

Under rule 13(1) dealing with recruitment to" the grade 1 or secti'oU' om.Ccrsa quota' haS 1-bCen ·, fixed arid pfoVisiOii haS been madC fOi ~'Qmg ori the'cadre both.by direct 'recnlitmCnt as also lJY: proniotion. : SeniOritY~; in.; the~t - cadre of Section Officers is the basis on which selection to the higher grade .int res~ of promotees has to be !"•de,. (292 B"~C] , , ; ,, l c: :_" ,, )

' . ' .. : _,:.;;::)

' ,,

, 5. , Regulation "3{3)-"of" the. Fourth. Schedule provides thaL. inter se, I! seniority or direct., recruits and pioniOtecs Shill be accOrdfu.gtO the Quota: Or • . • 1; "-' • · • • • .. j • • - ' • ii;;: ; r ::' r:'1l

• c

~88 tt 9S5i s.c, R ·

substantive vacancies in the grade reserVed for ·.direct recruits. and promotees respectively; The Rules m::i.ke detailed .provision for given effect to the quota r .. de and since officers are drawn from two different sources, provision has also been made for fixing their inter se seniority.

The inter e seniority of the direct recruits and promotees in each of the.:..cadres of Section Officers has not been challenged in the instant case. Such fixation has_ been made years back.

In the absence of challenge, the consequential process of. drawing up of .select list depending upon such seniority .for promotion to Grade I (post of

Under secretary) would not be open to challenge.

[293H ; 294A ; DJ

6. , If there is a quota rule to implement; the question of length of services becomes an irrelevant consideration.

Once the quota rule fails, the rota call no longer be enforced without causing prejudice to officers with longer periods of service in the cadre.

TP.e quota rule itself has nOt been questioned in the instant case.

[294F-G]°

Mervyn Coutindo & Ors. v. Collector of Customs, Bombay & Ors.(19631 3 S.C.R. 600, N.K. Chauhan & Ors. v. State of Gujarat & Ors. [1971] 1 S.C.R. 1037, P.S • .Mahal & Ors. v. Union of India & Ors. AIR 1984 S.C.R. 1291, A.

Janardhana [19831 2 S.C.R. 936 and P.C. Sethi v. Union of .India [1975) 3 S.C.R. 200 referred to.

ORIGINAL JURISDICTION: Writ. Petition .. Nos. !0618-10628 of

(Under Article 32 of the Constitution of India)

U.R. La/it and Randhir Jain, for.the Petitioners.

Kapil Sibal and K.R. Nagaraja, for the Respondents.

S.N. App/ey, S.S. Jauhar, R.N. Poddar, K.M. Sharma, Randhir Jain, J.D. Jain and Mrs. K. Kocher, for the Intervener.

The Judgment of the Court was delivered by.

I{ANGA"ATU MtSRA, J. Petitioners in the>e applications under Article 32 of the Con<titution belong to the cadre of Section Officers in the Central Secretariat Service ('Service; for short). They challenge . the combined seniority list of all the Sectfon .Officers belonging to : the Service and have asked for a direction that the select. list in Grade I of the Service be recast. They have also asked for a further direction that some of the direct recruits included in the eligibility

· list of Section Officers shown in Annexure P' l should be omitted 'froni it and a direction should .issue from the Court to appoint

l!. v. PARDASANI v. tiN1dN (Rangdnath Misra, J.) 189

promotees to Gradd with effect from the date on which junior directly recruited Section Officers have been appointed to Grade I.

They have further assailed the vires of the note below Rule 12,

rle 13(5) and Regulation '(3) of the Fourth Schedule as, being ultra vires Articles 14 and 16 of the Constitution. According to the petitioners the seniority between the direct recruits and promotees in the grade of Section Officers has to be fixed on the basis of length of service in the grade and not by the process envisged under the Rules and the relevant Regulations.

The respondents have taken the stand that the provision for fixing seniority has been made by the statutory Rules and the combined seniority list as also the eligibility list are in accordance with the •latutory scheme.

These applications were heard along with a batch of other writ petitions filed by Assistants belonging 10 the Service, the judgment whereof is being simultaneously delivered.

It is appropriate that .we refer to the provisions of the relevant Rules and Regulations before we proceed to examine the submissions. The composition of the Service is covered by rule 3 which provides for four grades being :-

(i) Selection Grade (Deputy Secretary to the Government of India or equivalent) ;

(ii) Grade I (Under Secretary to the Government of India or equivalent} ;

(iii) Section Officers' grade ;

(iv) Assistants' grade.

The first two grades have been combinedly classified as Central Civil Service Grade 'A' while the other two have similarly been classified together as Central Civil Service Group 'B'--, Ministerial.

rF

In this bunch of writ applications we are concerned with the Claim "of

: G Section Officers belonging to the third grade in the classification seeking promotion to Grade I which is covered by the second Grade.

Rule 12 makes provision for recruitment to the Selection.Grade as -also Grade I.. Sub-rule (2} thereof provides : "Vacancies in Grade I shall be filled by promotion of permanent officers of th.e 'section Officers' Grade who have rendered not less than eight years' approl 'H ved service in that Grade and of permanent office,. of te Grade

ll 9851 3 s.c.il.

'A' of the Central Secretariat Stenographers' Service, who have rendered not less than eight years' approved service in that Grade and have worked as Section Officers for at least a period of two years in accordance with the proviso to rule 10 and are included in the Select List for Grade I of the service prepared under sub rule (4)." There are four provisos to this sub-rule .. The second and third provisos which are relevant are to the following effect :

"Provided further that no person included in a later Select List shall be eligible to be appointed to the Grade until all officers included in an earlier Select List have been appointed.

Provided further that if any person appointed to the Section Officers' grade is considered for promotion to Grade I under this sub-rule, all persons senior to him in Section Officers' Grade who have rendered not less than six years' approved service in that Grade, shall also be considered notwithstanding that they may not have rendered eignt years' approved service in that Grade ; provided that the aforesaid condition of six years' approved service shall not apply to a person belonging to the Scheduled Caste or the Scheduled Tribes."

Sub-rule (4) provides that for purposes of sub-rules (l) and (2) a Select List for the Selection Grade and Grade I shall be prepared and may be revised from time to time. In Note 2 to sub-rule (5) it has been indicated that "in the case of persons included in the Select List for the Section Officers' Grade 'approved service' for the purpose of this rule shall count from the lst July of the year in which the names of the officers are included in the Select List." In the case of the direct recruits to the Section Officers' Grade, such service shall count from the 1st July of the year following the year of the competitive examination on the results of which they have been recruited provided that where there is a delay of more than three months in the appointment of any candidate, such delay is not due to any fault on his part.

Since seniority in the cadre of Section Officers is relevant for the disposal of the present applications, we have to refer to the method of recruitment of Section Officers in sub-rule (1) of Rule 13.

That sub-rule prescribes : ·

Ii. t. PAllADASANI '- imtoN (Aanganath Misra, i.) ~9i .

"One)ixth of the substantive vacancies in the Section ' . Officers' Grade in any cadre shall be filed by direct', . recruitment on the results of the competitive examina- .. , lions held bY .the Commission for this purpose from time "· .. to time.· . The , remaining .vacancies shall be filled by the . l ubstantive appointment of persons included in the . Select , .. ·, .. List for the Section Officers' Grade in that cadre .•• :•

Sb-rule (5) of rule 13 prcibes :

"For the purpose f sub-rules (I) and (2) a Select List ror . • the Section Officers' Grade shall be prepared and may be ' .

.. , . '

 revised from time to time. The procedure for preparing ; · and revising the select List' shall : be as set out in 'the''. ' 11

Fourth Schedule ....

Rule 18(3)(c) dealing with seniority provides : ·

. ' , ",, .. -: ';' _ - -( "The relative seniority of direct recruits to a Grade and , , • persons substantively appointed to the Grade. from the : , Select List for the Grade shall be regulated in accordance , .•• , •· 'with the provisions made in . this behalf in the Fourth . SChedule.'' ',' -' ... ,

"", I l r

'J; ·~ ·, .· .. - ·,: _::l;'~:: ... 1:~.~;; Regulation 2 dealing with the mafntenanc~ of Select Lis~ require_s; 0 ,. \ . . . "Additions to the Select List for the Section Officers'., :. , : "· i 'Grade in any cadre shall be made in such .numbers as the, . , .. , .. cadre authority may determine from time to. ti ms keeping . "

....J, in view the existing and anticipated vacancies so as to ensure that one person each by rotation is induded from ' out of the categories of persons spei:ified below •.• " i . ' •'.• Regulation 3 deals with seniority and clause (3) thereof says : ...

,; Direct rei:ruits to a grade and p:rsons. substantively . appointed to th_e. Grade from the 7 Select List for the "Grade shail be assigned seniority inter se according to the quotas of substantive vacancies in the Garde reserved for direct recruitment and the appointment of per.ans • • luded in the Select List, respectively.':.

'ere is no dispute that in the absence of.any special provision regulating' determination of seniority. length of continuous service ' in any particular grade would be the basis for determining' seniority.

AJ,

.....

H ss1 3 s.t:.it

in that grade. The legal position is equally settled that jf a rule prescribes !l method of fixation of inrer se seniority, the. normal practice would not apply and the rule shall prevail, obviously subject to its constitutionality. There is no dispute. that under . . . rule 13(1) dealing with recruitment to the grade of Section Officers a quota has been fixed and provision has been made_ for mann_ing of the cadre both by direct recruitment as also by promotion. •At the time when the Service was constituted in 1962 the quota of direct recruits had been fixed at I/4th, and after five years from the appoiii''. ted dayit was made I/3rd. Later it has been reduced to !/6th. The manning of the Section Officers' -Grade, therefore, has to.be by direct recruitment to the extent of !/6th and by prolilo_tion 'out of the Select List to the extent of the remaining 5, 6th.

The Select List referred to in sub-rule (I) of rule 13 is drawn np by following the procedure specified in Regulation 2_ of. the.

Fourth Schedule which provides that additions to the Select List fot the Section Officers' Grade in any cadre shall be made keeping in view the existing and anticipated vacancies so as to ensure tha_t one person each by rotation is included from out of the category of persons, namely, (a) officers of the Assistants' Grade belonging to that cadre who have rendered not less than eight years' approved service in that grade and are within the range of seniority in order of their senfority "subject to the rejection of the nnfit, the range of seniority being defined inrule 2(00), and (b) persons selected on the basis of the result of the limited departmental competitive examination held by the Commission, from time io time, in the order of their merit.

Inter se seniority of direct recruits and promotees in the grade of Section Officers is fixed in accordance with the provisions contained in Regulation 3(3) of the Fourth Schedule. The requirement of the Regulation is that inter se seniority of the direct recruits., and persons. substantively appointed to the grade from _the select ' list should be determined in accordance with the quota on the basis of substantive vacancies in the grade reserved for the two categories of officers.

As already indicated, seniority in the cadre of Section: Officers is the basis on which selection to the higher grade in respect or . promotees has to be made. If the petitioners are not able to _establ_ish . that the determination of their seniority is wrong and they hav~ j

H. v. PARbASANl ~. UNION (Aangahath Misra, f)

been prejudiced by such adverse' determination. their ultimate c'1a]m to promotion would indeed not succeed. , ,

Promotion to the grade of Under Secretary is made from amongst the members belonging to the grade of Section Officers and rule 12 is the relevant rule. In exercise of powers under rule 12(4), the Central Government has framed the Central Secretarfat Service (Promotion to Grade I and -Selection Grade) Regulations,· 1964.

Regulation 5(2)(c) provides : ''Officers other than those included in clauses (a) and (bl shall be arranged in the inanner specified below :

(i) The names of officers appointed to the Section Officers' Grade before the appointed day and included in the Select Lists of Section Officers at the initial constitution under paragraph I of the Fourth Schedule to the Rules shall be arranged in the order of tlieir senioity as determined before that day.

Additions to this list shall be made by including officers appointed to the Section Officers' Grade after the appointed day through the Select List for the Grade, Officers appointed on the basis of an earlier select list being placed above those appointed on the basis of a later select list.

The order of names shall be in the same order as in all the Secretariat Select Lists . issued by the Department of Personnel and Administrative Reforms."

This Select List is contemplated to cover the entire Secretariat and is, therefor required to reflect all the select lists of the cadres of Section Officers. Jn this single list of eligible Section Officers the names of the directly recruited Section Officers on the basis of the combined competitive examinations and arranged in the order of merit in such examinations as the scheme provides have to be interpolated according to the quota of vaca, cies reserved for direct recruits at the time .J".()f their recruitment. ' ,

In our judgment in the connected writ pellt:on Nos. 9323-9333 of 1982 delivered today, we have already held that the scheme constitu-

, ' . ting a Service to be manned both by direct recruits as also pro- . motees is unexceptionable. Prescription of quota becomes ecessary

_ to _work out such scheme and rota is a well accepted method for . giving effect thereto. Senicirity based upon rota, therefore, is also not open to attack. ·

Regulation 3(3) of the Fourth Schedule provides that inter se seniority' of direct recruits and promotees shall be according to the quota of substantive vacancies in the grade reserved, for direct recruits and promotees respectively. The Rules make detailed provfaion for giving effect to the quota rule and since officers are drawn from two

" D'

--F

294 . SU!iRilMil COT.iRf REPORTS t19ss1 3 s.c.il.

different sources, provision bas also been made for fixing their inter se seniority. The scheme does not appear to be arbitrary and we are, therefore, of the view that the Rules and the Regulations intended to give effect to the scheme are not ultra vires of either Article 14 or Article 16 of the Constitution. We may reiterate that the petitimiers have not questioned the quota rule itself and if they had, for the reasons we have indicated both here and in the judgment of the connected matters, the objection would have been of no avail.

Considerable argument was advanced in support of the peti tioners' stand that in giving effect to the scheme prejudice has been -f' caused to the petitioners. It is appropriate to take note here of the -~ fact that the inter se seniority of the direct recruits and promotees in each of the cadres of Section Officers has not been challenged before us. Such fixation has been made years back. In the absence of challenge to such fixation, the consequential process of drawing up of select list depending upon such seniority for promotion to Grade I {post of Under Secretary) would not be open to challenge. The scheme contemplates drawing up of a combined list from out of the cadres of Section Officers and to entertain a challenge at this stage would naturally affect the respective' seniority lists in the cadres and would involve many officers who have not been made parties to this proceeding. This Court has taken the view in many decided cases that if there is a quota rule to implement, the question Of length of services becomes ari irrelevant consideration (see Mervyn Couttndo & Ors. v. Collector of Customs, Bombay & Ors. : (1) N.K.

Chauhan & Ors. v. State of Gujarat.& Ors. ; (2) and P.S. Mahal & .Ors. v. Union of India & Ors. (3) A number of decisions were cited

on behalf of the petitioners, a reference to all of which we have_;,._ made in the connected judgment. As pointed out by us therein, both -... the cases of A. Jaoardhana (4) and P.S. Mahal this Court proceeded .. on the footing that there had been a break-down in the enforcement of the quota rule. Once the quota rule fails, the rota can no longer be enforced without causing prejudice to officers with longer periodi of service in the cadre. We do not think that the ratio of those cases can be applied in te case before us where there is no material ------------ (1)

[19631 3 S.C.R. 600.


(3) [A.I.R.l 1984 S.C. 1291.

(4)


I!. v. l'Al\DASANI v, \INION (Ranganath Misra, J.) 295

to support the contention that the vacancies have not been filled up \ by following the prescribed quota,

In course of arguments, the petitioners' counsel contended by relying on the feature that a bpnch of direct recruits has been placed above a group of promotees by operation of the quota rule and that the fixation of seniority was arbitrary. It was pointed out by the learned Additional Solicitor General appearing for the Union of India and Mr. Shanti Bhushan appearing for other respondents that the submission was misconceived. In this list of eligible officers, names of many who had already retired or had been promoted to other grades had not been shown. The working chart placed before us reflected the actual position. On a reference to the chart, we are satisfied that the quota rule .has been implemented while drawing up the eligibility list in accordance with Regulation 5(2) (c) (i) and (ii).

It was.further explained.that certain names which were not found in the eligibility list of 1982 appear in the list for the following year on account of the fact that on the completion of six years of service such names have been brought in as those officers became qualified for inclusion.

The next contention raised on behalf of the petitioners was against note No. 2 apparing under rule 12 (5) which is to this effect :

"In case of persons included in the Select List for the Section Officers' Grade 'approved service' for the purpose of this rule shall count from the !st July of the year in which the names of the officers are included in the Select List, in the case of direct recruits to the Section Officers' Grade, such service shall count from the !st July of the year 'following the year of the competitive examination on the results of which they have been recruited provided that where there is a delay of more than three months in the appointment of any candidate, such delay is not due to any fault on his part."

This note initially appeared to be somewhat arbitrary but after hearing counsel at length we are inclined to agree with the submission advanced on behalf of the Union of India that in the process of direct recruitment, there is considerable delay and though the comc-·

petitive examination is held in one particular year, by the time the H

SUPREME COURT REPORTS [19851 3 s.c.tt.

slected officer comes to join the post, more than a .year is lost.

Therefore, a rational view has been taken of the situation and for the computation of length of service the particular. provision has been m.ade. This in our view is really not open to challenge as an arbitrary provision. We may reiterat that a very intricate process is involved in giving effect to the scheme and in harmonising the claims of the officers belonging to the different cadres. Mathematical precision can- . not be expected in a matter like this and adoption of a test of. such accuracy with a view to ascertaining whether Articles 14 and/or 16 of the Constitution are violated would not be appropriate.

Challenge to the scheme in rule 18 in the matter of fixation of ---~

C: seniority had been advanced in the case of P.C. Sethi v. Union of

E.;.

. '

India, (1) and was negatived by this Court.

Delay and !aches were advanced as contentions on behalf of the Central Government for rejecting the petitions. We do not think it is necessary to go into that question as we have already taken that

into consideration while dea1ing with other contentions, It is, however; relevant to point out that of the 11 petitioners as many as 9 had got into the cadre of Assistants as direct recruits 11nd they bad themselves got advantage over promotees who had put in a longer period of ervice in such cadre. They should not now grudge a similar advantage being obtained by some other direct recruits in the higher cadre. After all as we have already said, in a case of this type a broader perspective has to be maintained and examination cannot be

permitted to be as strict as petitioners have asked us to adopt. ,

In view of wh1t we .have said, each of these petitions must be dismissed but we think it appn°priate to suggest to the Central Government to streamline the -scheme by a review of the Rules and Regulations so that the rancour and heartburning in the officers may be reduced to the inevitable minimum in the matter of implementatio11, Parties are directe\I to bear tpeir QWP Qosts, ·

A.P.J. fetition diw•lssetJ.

'... '" ' •• j -~-....;_-~-----~

{If' ll97p S, c;.R, 201 1