Supreme Court of India

R. Prabha Devi & Ors vs Government Of India, Through ... on 8 March, 1988

Equivalent citations: 1988 AIR 902, 1988 SCR (3) 147, AIR 1988 SUPREME COURT 902, 1988 LAB. I. C. 999, (1988) 1 SCJ 655, (1988) 1 JT 488 (SC), (1988) 1 LAB LN 955, (1988) 2 SERVLR 110, 1988 UJ(SC) 1 602, 1988 SCC (L&S) 475, 1988 (2) SCC 233

Author:
B.C. Ray

Bench:
B.C. Ray
,
A.P. Sen

PETITIONER:
R. PRABHA DEVI & ORS.

Vs.

RESPONDENT:
GOVERNMENT OF INDIA, THROUGH SECRETARY,MINISTRY OF PERSONNEL

DATE OF JUDGMENT08/03/1988

BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
SEN, A.P. (J)

CITATION:
1988 AIR 902 1988 SCR (3) 147
1988 SCC (2) 233 JT 1988 (1) 488
1988 SCALE (1)453

ACT:
Constitution of India, 1950-Central Secretariat Service
Rules-Rule 12(2) as amended fixing 8 years approved service
for both direct recruits and promotees as eligibility
condition-Whether arbitrary and violative of
Articles 14
and

16.

Service Jurisprudence-Promotion-Rule-making authority
competent lo frame rules laying down eligibility conditions-
Seniority relevant for promotion only when eligibility
criteria is fulfilled-Seniority cannot be substituted for
eligibility-Mere seniority will not entitle a person for
promotion-Seniority relevant only amongst eligible persons.

HEADNOTE:
%
The appellants are direct recruit Section officers and
were appointed in substantive vacancies of Section officers
in accordance with the quota reserved for direct recruits.
The inter-se seniority of the direct recruits and promotees
is fixed in accordance with the quota and rota system.
According to the C.S.S. Rules, 1962, the substantive
vacancies of Section officers are manned by direct recruits
and promotees and a quota of one-fifth of the substantive
vacancies has been reserved to be filled up by direct
recruits. The remaining substantive vacancies of Section
officers are to be filled up by appointment of persons
included in the select list i.e. by promotion. The direct
recruits on their appointment against substantive vacancies
become senior to the promotees, as is in the present case.
The promotion of Section officers to Grade I post of
C.S.S. Rules is made in accordance with the provisions of
sub-rule 2 of rule 12 of the said Rules framed in 1962.
According to this rule the direct recruits were eligible for
promotion to Grade I in C.S.S. even though they have not
rendered 10 years service, when promotee Section officers
junior to them are considered for promotion to Grade l. The
promotee Section officers had to render 10 years' approved
service as Section officer before being considered for
promotion to Grade I. This rule had been
amended from time to time, the last of which was in 1984 by
way of Notification No. 5/9/80 CS. I dated 29th December,
1984 which prescribed 8 years of approved service as Section
officer as condition of eligibility for being considered for
promotion to Grade I post in C.S.S.
This amendment was challenged before the Central
Administrative Tribunal which dismissed the applications,
holding that the amended rule is valid, just and equitable
and no exception can be taken to it, and that it is not
ultra vires of
Articles 14
and
of the Constitution.
Aggrieved by the said order three appeals have been
preferred before this Court, by way of special leave. It was
contended that the amendment purports to entrench upon the
prospects of the directly recruited Section officers for
being considered for promotion to Grade l in as much as they
are left out of the zone of consideration while their
juniors i.e. the promotee Section officers are eligible for
being considered for promotion to Grade I. This condition of
eligibility has no nexus to suitability for promotion to the
post and as such is in violation of the equality clause in

Article 16
of the Constitution of India.
It was contended that for purposes of seniority in
service the senior will be considered for promotion before
those who are junior to them in service, and that the
condition of eligibility as laid down in the said rule has
no reference to suitability for promotion to the post and as
such it is arbitrary and so void. The system prior to the
amendment worked out satisfactorily and the direct recruit
Section officers who were promoted to Grade I post performed
their duties attached to the higher post duly and
satisfactorily, and therefore the amendment is arbitrary and
inequitable, and that this amendment works out to the
serious prejudice of the direct recruit Section officers.
It was submitted that the effect of the amendment is to
neutralise and negative the decision of this Court in H.V.
Pardasani & Ors. v. Union of India & Ors., [1985] 2 SCC 468
which held that the rules of seniority on the basis of
quota-rota basis are unexceptionable.
On behalf of the promotee Section officers it was
contended that the inter-se seniority between direct recruit
Section officers and promotee Section officers is fixed in
accordance with the quota-rota rule and thus has no
reference to the length of service. The promotee Section
officers have not been considered for promotion m spite of
their rendering service as such for more than 13 years,
whereas the direct recruit
Section officers who were appointed much later were
considered and promoted purely on the ground of seniority.
This has created frustration in the minds of the promotees
and in order to obviate this, the Government has amended the
proviso and that the amendment is neither arbitrary nor
unjust.
Dismissing the appeals, this Court,
^
HELD: 1. The rule in question which prescribes on
uniform period of qualified service cannot be said to be
arbitrary or unjust or violative of
Articles 14
or 16 of the
Constitution. The rule making authority, by the amendment
made in 1984, has brought in an uniform eligibility
qualification of 8 years' approved service to be rendered by
the Section officers-both promotees and direct recruits
before coming within the zone of consideration for promotion
to Grade I. Thus it treats all Section officers equally and
there is no discrimination between the Section officers. The
directly recruited Section officers are not totally excluded
from the zone of consideration for promotion. They will be
considered like the promotee Section officers as soon as
they have rendered eight years' approved service as Section
officers. The eligibility conditions imposed has a nexus to
the object sought to be achieved, viz. enlisting experienced
officers of proven merit to man the higher posts by way of
promotion. [158B; 156B-D]
2. The validity of rule providing for fixation of
seniority between the direct recruits and promotees in the
grade of Section officer on the basis of quota reserved for
direct recruits (i.e. 1/5 of the total substantive
vacancies) has already been upheld by this Court. But this
does not mean that the direct recruits who are senior to the
promotees are entitled to be considered for promotion to a
higher post even though they do not fulfil the eligibility
qualification specified in the rule framed by the rule-
making authority. The rule-making authority is competent to
frame rules laying down eligibility condition for promotion
to a higher post, and it cannot be said that a direct
recruit who is senior to the promotees is not required to
comply with the eligibility condition and he is entitled to
be considered for promotion to the higher post merely on the
basis of his seniority. The submission that a senior Section
officer has a right to be considered for promotion to Grade
I post when his juniors who have fulfilled the eligibility
condition are being considered for promotion to the higher
post, is wholly unsustainable. [155G; 156A-B; 157D-F]
H.V. Pardasani & Ors. v. Union of India, [1985] 2 SCC
468, followed.
3. When qualifications for appointment to a post in a
particular cadre are prescribed, the same have to be
satisfied before a person can be considered for appointment.
Seniority in a particular cadre does not entitle a public
servant for promotion to a higher post unless he fulfils the
eligibility condition prescribed by the relevant rules. A
person must be eligible for promotion having regard to the
qualifications prescribed for the post before he can be
considered for promotion. Seniority will be relevant only
amongst persons eligible. Seniority cannot be substituted
for eligibility nor can it over-ride it in the matter of
promotion to the next higher Post. [157G-H: 158A]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2040-
2042 of 1987
From the Judgment and order dated 11.2.1986 of the
Central Administrative Tribunal, New Delhi in Appln.
Registration No. 4, 9 and 10 of 1985
Shanti Bhushan, K.R. Nagaraja, R.S. Hegde and Jayant
Bhushan for the Appellants.

V.C. Mahajan, C.V. Subba Rao, A. Subba Rao and T.S.
Sundrarajan-in-person for the Respondents.

The Judgment of the Court was delivered by
RAY, J. In these appeals under special leave the only
question that falls for consideration is whether the service
rule requiring 8 years of approved service as Section
officer both for the direct recruits as well as for
promotees for being eligible for consideration for promotion
to the Grade I Post in Central Secretariat Service is
arbitrary being in contravention of
Articles 14
and
of
the Constitution of India.

The matrix of the case is that the appellants along
with one Rajiv Kalsi made four applications under
section 19

of the Administrative Tribunals Act, 1985 challenging the
vires of proviso to sub-rule 2 of Rule 12 of Central
Secretariate Service (C.S.S.), 1962 as amended by
Notification No. 5/8/80-CS. I dated 29th December, 1984
prescribing 8 years of approved service as Section officer
as condition of eligibility for being considered for
promotion to Grade-I Post in C.S.S. The appellants, Miss
Prabha Devi and Shri Rajiv Kalsi were recruited directly-
through examination held by Union Public Service Commis-
sion in 1978 as Section officers. The appellants Shri G.S.
Grewal and Shri Surjit Singh were recruited through
examination held by Union Public Service Commission in 1980
as Section officers. These direct recruits had been
appointed in substantive vacancies of Section officers in
accordance with the quota reserved for direct recruits by
the service rules. The inter se seniority of the direct
recruits and the promotees is fixed in accordance with the
quota and rota system. The appellants are seniors to the
promotees in accordance with the said quota and rota Rule.
The promotion to Grade I post of C.S.S. Rules is made in
accordance with the provisions of sub-rule 2 of rule 12 of
the said Rules. The proviso to sub-rule 2 of rule 12 of
C.S.S. Rules, 1962 was originally to the following effect:

"Provided that if any person appointed to the
Section officers' Grade before the prescribed date
is considered for promotion to Grade I in
accordance with the provisions of this sub-rule,
all persons senior to him in that grade before the
prescribed date shall also be considered
notwithstanding that they may not have rendered l0
years' approved service in the grade."

According to this rule the direct recruits were
eligible for consideration for promotion to Grade I in
C.S.S. even though they have not rendered 10 years' service
when promotee Section officers junior to them are considered
for promotion to Grade I. The promotee Section officers had
to render 10 years' approved service as Section officer
before being considered for promotion to Grade I. This
proviso to sub-rule (2) of Rule 12 was substituted by the
following proviso with effect from July 31, 1972:

"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 that grade shall also be
considered notwithstanding that they may not have
rendered 10 years' approved service in that grade.
"

The proviso to sub-rule (2) of rule 12 was again
substituted by the following proviso with effect from
February 23, 1978:

"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 10 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 Castes or the
Scheduled Tribes."

Thus according to this proviso to sub-rule (2) of rule
12 a direct recruit Section officer who has rendered six
years' approved service in that grade was eligible for
consideration for promotion to Grade I whereas a promotee
Section officer would have to render ten years' approved
service in the grade of Section officer before being
eligible for consideration for promotion. In 1979 the
substantive part of sub-rule (2) of rule 12 was amended to
provide eight years' approved service in the Section
officers' Grade as against ten years approved service for
eligibility for promotion to Grade I of C.S.S. The third
proviso of sub-rule (2) of rule 12 was further substituted
by the following proviso by Notification dated December 29,
1984:

"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,
belonging to the Scheduled Castes or the Scheduled
Tribes who have rendered not less than 4 years'
approved service in that grade, shall also be
considered for promotion.

This amended rule enjoins that a directly recruited
Section officer has to render 8 years' approved service in
the grade of Section officer before being eligible for
consideration for promotion to Grade I. The only exception
made in this rule is with regard to Section officers
belonging to the Scheduled Castes or Scheduled Tribes who
shall have to render only four years approved service in
that grade in order to qualify themselves for being
considered for promotion to the said Grade I.
This condition of eligibility as introduced by the 1984
amendment of the third proviso of sub-rule (2) of rule 12
has been questioned in the petitions before the Central
Administrative Tribunal which after hearing the parties
dismissed the applications by a common judgment holding
inter alia that neither the amendment of February, 1978 nor
the amendment of December, 1984 made in the proviso to sub-
rule (2) of rule 12 of the C.S.S. Rules, 1962 is
discriminatory or arbitrary or
unreasonable so as to be declared ultra vires of
Articles 14

and
of the Constitution of India. It has been further
held that the amended rule of December, 1984 is valid, just
and equitable and no exception can he taken to it.

Aggrieved by the said order these three appeals on
special leave have been preferred before this Court. Mr.
Shanti Bhushan, learned counsel appearing on behalf of the
appellants has advanced three-fold submissions before this
Court. The first submission is that the impugned amendment
made in third proviso of sub-rule (2) of rule 12 of C.S.S.
Rules purports to entrench upon the prospects of the
directly recruited Section officers for being considered for
promotion to Grade I in as much as they are left out of the
zone of consideration while their juniors i.e. the promotee
Section officers are eligible for being considered for
promotion to Grade I. This condition of eligibility has no
nexus to suitability for promotion to the post and as such
this is in violation of the equality clause in
Article 16
of
the Constitution of India. It has been submitted that any
rule framed by the Government must be subject to the
Fundamental Rights guaranteed by the
Articles 14
and
of
the Constitution of India. Seniority of the direct recruits
entitles them for consideration for promotion to the higher
post while their juniors i.e. promotee Section officers are
being considered for promotion to the higher post. The
purpose of the seniority in service is that the senior will
be considered for promotion before those who are junior to
them in the service. Of course, a senior incumbent may be
considered not suitable for promotion. It has been submitted
that the condition of eligibility as laid down in the said
rule has no reference to suitability for promotion to the
post and as such it is arbitrary and so void. It has been
submitted in this connection that prior to 1978 directly
recruited Section officers having rendered 3-4 years of
service in that grade had been promoted to Grade I and they
had duly performed their duties. Some of them have rendered
their service in the promoted post very efficiently and they
have earned remarks such as "very meritorious and
outstanding" from the Department. There is nothing to show
that the promoted direct recruits were proved inefficient in
discharging their duties and responsibilities of the higher
post.

Mr. Shanti Bhushan furhter submitted that even in
accordance with the provisions of sub-rule (2) of rule 12 as
amended in 1978 direct recruit Section officers after having
rendered six years' approved service in the grade had been
considered for promotion and were promoted to Grade I. This
system worked out very satisfactorily and
the direct recruit Section officers who were promoted to
Grade I post performed their duties attached to the higher
post duly and satisfactorily. The amendment of the
eligibility qualification in 1984 providing a longer period
of service as S.O. is, therefore, arbitrary and inequitable.
There is no rationale behind this amendment which works to
the serious prejudice of the direct recruit Section officers
for being considered for promotion to Grade I of the C.S.S.
Service even though the promotee Section officers junior to
them are being considered for promotion.

It has been secondly contended that the rule of
determination of seniority on quota-rota basis in the grade
of Section officers having been held valid and not arbitrary
by this Court in the case of H.V. Pardasani and ors. v.
Union of India and Ors., [1985] 2 SCC 468, the condition of
eligibility introduced by the 1984 amendment of sub-rule (2)
of rule 12 is wholly unjust and arbitrary as it excludes
direct recruit Section officers from the zone of
consideration for promotion even though their juniors having
put in eight years' approved service as Section officers are
eligible for consideration for promotion. It has been
submitted that the effect of the amendment is to neutralise
and negative the decision of this Court which held that the
rules of seniority on the basis of quota-rota basis are
unexceptionable. It has been lastly contended that at any
rate the promotee Section officers form a very small portion
of the officers promoted to the Grade I Post and as such
elimination of the direct recruit Section officers from the
zone of consideration for promotion will not have any
appreciable effect in as much as it will not obviate the
frustration of the promotee Section officers for not being
promoted to the higher post. It has also been submitted that
it is unjust and arbitrary to prevent the senior Section
officers from being considered for promotion by enhancing
the period of service from six years to eight years to be
rendered in the grade of Section officer.

Mr. T.S. Sundara Rajan, a promotee Section officer,
Respondent No. 2 has submitted that the appellants who are
directly recruited Section officers on the result of
examination held by the Union Public Service Commission in
1978 and 1980 against substantive vacancies, have become
senior to the promotee Section officers on the basis of the
quota reserved for direct recruits even though the promotee
Section officers have rendered more than thirteen years'
service as Section officers. This Fixation of seniority has
no reference to the length of service. The inter se
seniority between the direct recruits and the promotee
Section officers being determined on the basis of the
quota, the promotee Section officers even though they have
been A promoted to the post of Section officers and have
rendered service for a considerable period have become
juniors to them in service and were not considered for
promotion even. These promotee Section officers like the
Respondent No. 2 have not been considered for promotion in
spite of their rendering service as such for more than
thirteen years whereas the direct recruit Section officers
who were appointed much later were considered and promoted
purely on the ground of seniority. This has created
frustration in the minds of the promotees. To obviate this
the Government after due consideration of all aspect has by
Notification dated December 29, 1984 amended the proviso to
sub-rule (2) of rule 12 of C.S.S. Rules prescribing an
uniform eligibility of rendering eight years' approved
service as Section officers by both the direct recruit
Section officers and the promotee Section Officers for being
considered for promotion to Grade I (Under Secretary). The
said amendment, it has been submitted, is neither arbitrary
nor unjust. It has been further submitted that the promotee
Section officers if given promotion will render their
service duly and efficiently as has been rendered by the
direct recruit Section officers promoted to Grade I.
According to the C.S.S. Rules, 1962, the substantive
vacancies of Section officers are manned by direct recruits
and promotees and a quota of one-fifth of the total
substantive vacancies has been reserved to be filled up by
direct recruits. The remaining substantive vacancies of
Section officers are filled up by appointment of persons
included in the select list i.e. by promotion. The inter se
seniority between the direct recruits and promotees is
determined on the basis of the quota-rota rule. The direct
recruits on their appointment against substantive vacancies
become senior to the promotees.

This Court in the case of H.V. Pardasani and ors. v.
Union of India and Ors. (supra) considered the question of
the validity of rule providing for fixation of seniority
between the direct recruits and promotees in the grade of
Section officer on the basis of quota reserved for direct
recruits and held that the prescription of quota becomes
necessary to work out a scheme constituting a service manned
by both the direct recruits as well as promotees. Such a
scheme is unexceptionable and seniority based upon the rota
is also not open to attack. The scheme does not appear to be
arbitrary and the rules and regulations to give effect to
the scheme are not ultra vires either
Article 14
or
Article
of the Constitution. Therefore, the inter se seniority of
direct recruit and promotee Section officers on the basis of
quota-rota rules has been held to be valid. This does not
mean that the A direct recruits who are senior to the
promotees are entitled to be considered for promotion to a
higher post even though they do not fulfil the eligibility
qualification specified in the rule framed by the rule-
making authority. The rule-making authority by the amendment
made in 1984 has brought in an uniform eligibility
qualification of eight years' approved service to be
rendered by the Section officers-both promotees and direct
recruits before coming within the Zone of consideration for
promotion to Grade I. Thus it treats all Section officers
equally and there is no discrimination between the Section
officers. It has been submitted that this rule is arbitrary
and unreasonable as it prescribes a certain minimum service
in a lower post for promotion to a higher post on the ground
that it has no nexus to suitability for holding the higher
post. This submission in our considered opinion, cannot be
sustained in as much as experience over certain number of
years in service and also due performance of the duties and
responsibilities attached to the post of Section officer is
very relevant and as such prescribing such an eligibility
qualification has nexus to the suitability for the promoted
post. The directly recruited Section officers are not
totally excluded from the zone of consideration for
promotion. They will be considered like the promotee Section
officer as soon as they have rendered eight years' approved
service as Section officer. The Tribunal has held that:

"The qualifications for any post are prescribed
having regard to the nature of the post and the
duties and responsibilities attached to it. For
due discharge of duties attached to a post,
academic excellence alone may not be sufficient.
Factors like experience over certain number of
years in service and holding a post of a certain
level are relevant. That gives them the
opportunity to deal with several files, handle
different situations, tackle varied problems,
extract work from subordinates of varying
capabilities and serve under superiors with
differing styles of functioning. They acquire
knowledge of men and matters and the necessary
acumen to deal with issues arising from time to
time. Academic brilliance and excellent
performance at the competitive examinations by
themselves cannot wholly substitute experience.
They can only supplement. However brilliant a
person may be, he needs experience such as can be
gathered only by discharging the duties and
responsibilities attached to a post. If
recruitment to a post is by way of promotion, the
minimum
number of years one should serve in the lower post
would have to be prescribed. Valuable experience
gained in service, better equips a person to
shoulder higher responsibilities and man the
superior post. Period spent in discharge of duties
of a post has nexus to. the object of enlisting
experienced officers of proven merit with
consistent good record over sufficiently long
period to man the higher posts by way of
promotion."

The 1984 amendment of the rules providing an
eligibility condition of rendering eight years' approved
service as section officer for coming within the zone of
consideration for promotion to Grade I Post of C.S.S. is not
at all arbitrary and unreasonable as it prescribes a minimum
period of eight years' of service as Section officer both
for direct recruits and promotees as a condition of
eligibility for consideration for promotion to the higher
post. This rule is, therefore, not violative of
Articles 14

and
of the Constitution of India.

The rule-making authority is competent to frame rules
laying down eligibility condition for promotion to a higher
post. When such an eligibility condition has been laid down
by service rules, it cannot be said that a direct recruit
who is senior to the promotees is not required to comply
with the eligibility condition and he is entitled to be
considered for promotion to the higher post merely on the
basis of his seniority. The amended rule in question has
specified a period of eight years' approved service in the
grade of Section officer as a condition of eligibility for
being considered for promotion to Grade I post of C.S.S.
This rule is equally applicable to both the direct recruit
Section officers as well as the promotee Section officers.
The submission that a senior Section officer has a right to
be considered for promotion to Grade I post when his juniors
who have fulfilled the eligibility condition are being
considered for promotion to the higher post, Grade I, is
wholly unsustainable. The prescribing of an eligibility
condition for entitlement for consideration for promotion is
within the competence of the rule-making authority. This
eligibility condition has to be fulfilled by the Section
officers including senior direct recruits in order to be
eligible for being considered for promotion. When
qualifications for appointment to a post in a particular
cadre are prescribed, the same have to be satisfied before a
person can be considered for appointment. Seniority in a
particular cadre does not entitle a public servant for
promotion to a higher post unless he fulfils the eligibility
condition prescribed by the relevant rules. A person must be
eligible for promotion having regard to the qualifications
prescribed for the
post before he can be considered for promotion. Seniority
will be relevant only amongst persons eligible. Seniority
cannot be substituted for eligibility nor it can over-ride
it in the matter of promotion to the next higher post. The
rule in question which prescribes an uniform period of
qualified service cannot be said to be arbitrary or unjust
violative of
Articles 14
or 16 of the Constitution. It has
been rightly held by the Tribunal:

"When certain length of service in a particular
cadre can validly be prescribed and is so
prescribed, unless a person possesses that
qualification, he cannot be considered eligible
for appointment. There is no law which lays down
that a senior in service would automatically be
eligible for promotion. Seniority by itself does
not outweight experience."

It has also been observed:

"In any event, the appropriate Rule making
Authority is the best judge in this regard. The
Rule making Authority is certainly competent to
amend the Rule and extend the period from 6 years
to 8 years so as to make the direct recruits more
experienced and suitable for the higher post. That
is a matter for the Rule making Authority; the
Tribunal cannot sit in judgment over the opinion
of the Rule making Authority. No Court or Tribunal
can substitute its own view in a matter such as
this. Such a Rule framed by a competent Authority
cannot be struck down unless it is shown to be
violative of any Fundamental Right guaranteed to a
citizen under the Constitution."

We do not find any infirmity in the above findings
arrived at by the Tribunal.

In the premises aforesaid we hold that the third
proviso to sub rule 2 of Rule 12 of Central Secretariat
Service Rules, 1962 as amended by Notification No.
5/8/80-CS. I. dated 29th December, 1984 is not ultra vires
of
Articles 14
and
of the Constitution. The judgment and
order of the Central Administrative Tribunal is hereby
affirmed and the appeals are dismissed without costs.

G.N. Appeals dismissed.