Supreme Court of India

Keshav Chandra Joshi And Ors. Etc vs Union Of India And Ors on 6 November, 1990

Equivalent citations: 1991 AIR 284, 1990 SCR SUPL. (2) 573, AIR 1991 SUPREME COURT 284, 1991 LAB. I. C. 216, (1991) 2 SERVLJ 42, (1991) 1 APLJ 45.2, 1992 (1) SCC(SUPP) 272, 1992 SCC (SUPP) 1 272, 1993 SCC (L&S) 694, (1991) 1 PAT LJR 80, (1992) 8 SERVLR 636, (1993) 24 ATC 545

Author:
K. Ramaswamy

Bench:
K. Ramaswamy
,
Rangnath Misra
,
M.M. Punchhi

PETITIONER:
KESHAV CHANDRA JOSHI AND ORS. ETC.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT06/11/1990

BENCH:

RAMASWAMY, K.
BENCH:

RAMASWAMY, K.
MISRA, RANGNATH (CJ)
PUNCHHI, M.M.

CITATION:

1991 AIR 284 1990 SCR Supl. (2) 573
1992 SCC Supl. (1) 272 1990 SCALE (2)951

ACT:

U.P. Forest Service Rules, 1952: Rules 3(h),
5(a)(b)--Appendix 'A' & 'B'--6, 24 and 27.
Service Law--Seniority--Assistant Conservators of For-
est-Direct recruits and promotees--Fixation of
seniority--Appointment of promotees on ad hoc basis as a
stop gap arrangement and dehors the rules--Promotees holding
posts continuously for a long period-Continuous length of ad
hoc service from the date of initial appointment-Whether
should be counted towards seniority.
Rules relating to 'Conditions of service'--Power of
Governor to relax--Consultation by Governor with public
Service Commission is mandatory--Word 'may' in Rule 27 has
been used in the context of discharge of duty--It must be
read as 'shall'.

'Rules of recruitment' and 'Conditions of
service'--Distinction between--Rule 5(a)(b) and Appendix 'A'
& 'B' are basic rules of recruitment and not subject to Rule

27.

Promotees appointed on ad hoc basis and dehors the
Rules-Allowing the promotees to officiate for a long
period--Whether appointment should be deemed to have been
made in relaxation of the Rules.

HEADNOTE:

Under U.P. Forest Service Rules, 1952 recruitment to the
posts of Assistant conservators of Forest was made from two
sources, namely, by direct recruitment, under Rule 5(a) read
with Appendix 'A', and by promotion of permanent Forest
Rangers, under Rule 5(b) read with Appendix 'B'. Rule 6 of
the rules provided that not more than 25% of the total
number of posts shall be filled by promotion.
The petitioners (promotees) were appointed to the posts
of Forest Rangers. Due to pendency of legal proceedings
there was no direct recruitment to the posts of Assistant
Conservators of Forest under Rule
5(a) till 1974 and even thereafter. The petitioners-promo-
tees were appointed on the posts of Assistant Conservators
of Forest on ad hoc basis, between March 13, 1974 and Novem-
ber 21, 1981 subject to direct recruitment and they were
continuing temporarily on ad hoc basis for varying period of
5 to 12 years. With effect from 1st May, 1975 the ratio of
25% recruitment of promotees under Rule 6 was increased to
33 1/3%. In the meanwhile the direct recruits under Rule
5(a) were appointed on probation to substantive vacancies.

When their claim was ripe for consideration as Deputy Con-
servators of forest, the petitioners claiming seniority over
them filed Writ Petitions in this Court contending (i) that
though the promotees were appointed on ad hoc basis due to
non-availability of direct recruits yet they were continuing
for well over 5 to 12 years discharging the same duties,
drawing the same scale of pay without any reversion; their
posts were not fortuitous, nor stop gap. Consequently their
entire continuous length of service from the dates of their
initial promotion should be counted towards their seniority;

(ii) since the promotees were allowed to officiate for a
long period they must be deemed to have been appointed in
relaxation of the rules of recruitment under Rule 27 of the
rules by the Governor.

On behalf of the direct recruits it was contended (i)
since the appointment of the promotees was on ad hoc basis
and not on the basis of merit as per rules they have no
right to the posts. Consequently the service rendered by
them from the dates of initial promotion till date of sub-
stantive appointment being fortuitous cannot be counted
towards seniority; (ii) since the promotees were appointed
in excess of the prescribed quota in Rule 6, they should be
pushed down to the vacancies that had arisen in each year
above the direct recruits as per the ratio as the promotees
were not entitled to claim seniority from the initial dates
of their respective promotions; (iii) that the power of
relaxation in Rule 27 was only in respect of conditions of
service and not relating to recruitment or promotion.
Disposing the petitions, this Court,
HELD: 1. Under rule 5 read with Rule 3(h) of the U.P.
Forest Service Rules, 1952 a member of the service means a
person, be it direct recruit under rule 5(a) or promotee
under Rule 5(b), appointed in a substantive capacity to the
service as per the provisions of the rules. In order to
become a member of the service he must satisfy two condi-
tions, namely, the appointment must be in substantive capac-
ity and the appointment has to be to the post in the service
according to rules and
within the quota to the substantive vacancy. There exists
marked distinction between appointment in a substantive
capacity and appointment to the substantive post. Therefore,
the membership to the service must be preceded by an order
of appointment to the post validly made by the Governor.
Then only he becomes member of the service. Any other con-
struction would be violation of the rules.

2. Employees appointed purely on ad hoc or officiating
basis due to administrative exigencies, even though contin-
ued for a long spell, do not become the members of the
service unless the Governor appoints them in accordance with
the rules and so they are not entitled to count the entire
length of their continuous officiating or fortuitous service
towards their seniority. Reckoning continuous officiating of
ad hoc promotion would enable the less privileged to excel
their latent capabilities in the cadre post.

Narendra Chadha v. Union of India
, [1986] 1 S.C.R. 211;
Baleshwardas v. State of U.P., [1981] 1 S.C.R. 449;
N.K.
Chauhan v. State of Gujarat
, [1977] 1
S.C.R. 1037 and Direct
Recruits Class 11 Engg. Officers' Association v. State of
Maharashtra
, [1990] 2 S.C.C. 715; A.J. Patel & Ors. v. State
of Gujarat & Ors., A.I.R. 1965 Guj.
23 (FB): referred to.
Masoor Akhtar Khan & Ors. v. State of M.P. & Ors., J.T.
1990 3S.C. 295; followed.

A.K. Kraipak & Ors. etc. v. Union of India & Ors.,
[1970] 1 S.C.R. 457; cited.

2.1 In the instant case due to exigencies of service
temporary promotions against substantive vacancies were
made. It is undoubted that preceding their promotion, an ad
hoc Committee had considered the cases of the promotees.
Admittedly seniority subject to rejection of unfit was the
criteria, followed in the selection. The selection was,
therefore, in defiance of and dehors Rule 5(b) read with
Appendix 'B'. The promotions were on ad hoc basis pending
direct recruitment and were in excess of the quota pre-
scribed under rule 6. By no stretch of imagination it could
be said that the promotions were made to a substantive post
in accordance with the rules. Therefore, the promotees do
not hold the post in substantive capacity. Accordingly their
continuous length of ad hoc service from the date of initial
appointment cannot be counted towards seniority.
3. The pre-requisite of the .right to inclusion in a
common list of seniority is that all those who claim that
right must broadly bear the same characteristics. Fortuitous
circumstances of theft holding the grade post carrying the
same designation or scale of pay or discharging the same
duty would not justify the conclusion that they being to the
same cadre.

4. An officer appointed by promotion in accordance with
Rules and within quota and on declaration of probation is
entitled to reckon his seniority from the date of promotion
and the entire length of service, though initially tempo-
rary, shall be counted for seniority. Ad hoc or fortuitous
appointments on a temporary or stop gap basis cannot be
taken into account for the purpose of seniority, even if the
appointee was subsequently qualified to hold the post on a
regular basis. To give benefit of such service would be
contrary to equality enshrined in
Article 14
read with

Article 16(1)
of the Constitution as unequals would be
treated as equals. When promotion is out side the quota, the
seniority would be reckoned from the date of the vacancy
within the quota, rendering the previous service fortuitous.
The previous promotion would be regular only from the date
of the vacancy within the quota and seniority shall be
counted from that date and not from the date of his earlier
promotion or subsequent confirmation. In order to do justice
to the promotees it would not be proper to do injustice to
the direct recruits. The rule of quota being a statutory one
must be strictly implemented and it is impermissible for the
authorities concerned to deviate from the rule due to admin-
istrative exigencies or expediency. The result of pushing
down the promotees appointed in excess of the quota any work
out hardship but it is unavoidable and any construction
otherwise would be illegal, nullifying the force of statuto-
ry rules and would offend
Articles 14
and
16(1).

5. Since the rules are legislative in character, they
must harmoniously be interpreted as a connected whole giving
life and force to each word, phrase and rule and no part
thereof should be rendered nugatory or a surplusage. Resort
to iron out the creases could be had only when the construc-
tion of the relevant rule, phrase or word Would lead to
unintended absurd results.

5.1 In an appropriate case if the court finds that
wanton or deliberate deviation from the rules was made by
the implementing authority the court should call upon them
to explain the reasons therefore and in the absence of
proper explanation forthcoming castigate the authority and
pass structures condemning the actions which would
discipline
the authorities to adhere to the rules. Undue latitude and
acquiesce thereto would not only defeat the due enforcement
of the rules but also create disorder and frustration among
the members of the service.

Rule 27 of the U.P. Forest Service Rules, 1952 gives
power to the Governor that if he is satisfied that the
operation of any rule regarding conditions of service of the
members caused undue hardship in a particular case; he may
consult the Public Service Commission; notwithstanding
anything contained in the Rules and dispense with or relax
the requirement the conditions of service and extend the
necessary benefit as is expedient so as to relieve hardship
and to cause just and equitable results. The word "may"
consult the Commission has been used in the context of
discharge of statutory duty. The Governor is obligated to
consult the Public Service Commission. Therefore, the word
"may" must be construed as to mean "shall" and it is manda-
tory on the part of the Governor to consult the Public
Service Commission before exempting or relaxing the opera-
tion of rule regarding conditions of the service of a member
to relieve him from undue hardship and to cause just and
equitable results.

5.3 There is a distinction between "rules of recruit-
ment" and "conditions of service". The rules relating to
recruitment to the service either under rule 5(a) or 5(b) or
the manner of recruitment to service as per Appendix 'A' or
'B' are basic rules of recruitment to service. They are not
subject to rule 27.

Narendra Chadha v. Union of India & Ors., [1986] 1
S.C.R. 211; referred to.