Supreme Court of India

579Ajeet Singh Singhvi Etc vs State Of Rajasthan And Others Etc on 20 February, 1991

Equivalent citations: 1991 SCR (1) 579, 1991 SCC SUPL. (1) 343, 1991 AIR SCW 545, (1991) 1 SCR 579 (SC), 1991 SCC (L&S) 1026, (1991) 2 SERVLR 49, 1991 SCC (SUPP) 1 343, (1991) 16 ATC 935, (1991) 62 FACLR 738, (1991) 2 LABLJ 336, 1991 UJ(SC) 2 69, (1991) 1 CURLR 905, (1991) 1 JT 668 (SC)

Author:
M.M. Punchhi

Bench:
M.M. Punchhi
,
R.M. Sahai

PETITIONER:
579AJEET SINGH SINGHVI ETC.

Vs.

RESPONDENT:
STATE OF RAJASTHAN AND OTHERS ETC.

DATE OF JUDGMENT20/02/1991

BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
SAHAI, R.M. (J)

CITATION:
1991 SCR (1) 579 1991 SCC Supl. (1) 343
JT 1991 (1) 668 1991 SCALE (1)250

ACT:
Rajasthan Administrative Service Rules, 1954-Rules 6,
28-B and 32-`Higher post',`highest post'- Identification of
-Super time scale posts- Whether highest post.

HEADNOTE:
The appellants are high ranking officers in Rajasthan
Administrative Service governed by the Rajasthan
Administrative Service Rules, 1954. Consequent upon the
amendment caused to the said rules on July 17, 1987, they
felt that the amendment had affected their further
promotional chances. They therefore filed writ petitions
before the High court challenging the vires of the
amendment dated 17.7.1987 contending that the creation of
Super time scale did not have the automatic effect of
creating highest post/posts to be filled by merit alone,
and that the posts to which Super Time Scale was attracted
remained `higher posts' in contrast to `highest posts'
available to the members of the Rajasthan Administrative
Service on the prescribed percentage of 50 per cent on merit
and the remaining fifty per cent on seniority-cum-merit.
Their case was that section to the highest posts made under
the amended rule solely on the basis of the merit was bad in
law. Before the High Court challenge to the vires of the
amendment was abandoned and the High Court considered the
question (i) whether the Super time scale is/are the highest
post/posts in the service and
(ii) if it is so, whether the post/posts is/are to be
filled on the basis of seniority-cum-merit in the
proportion of 50:50 or on merit alone in accordance with
sub-rule (7) of /Rule 28-B of the Rules:
The High Court rejected the writ petitions opening that
the Super Time Scale post/posts was/were the highest
post/posts in the service and those are required to be
filled on merit alone and not in the proportion of 50:50 on
the basis of merit and seniority-cum-merit. Hence these
appeals by the appellants.
Dismissing the appeals this Court
HELD: The terms `higher post' and `highest post'
occurring in
Rules 28-B and 32 by all means are relative ones expected to
be created in singular or plural terms under rule 6
whereunder the strength of posts in each grade was
determinable by the government from time to time. Sub-rule
(7) even before the amendment of 17.7.1987 postulated a
highest post/post capable of being filled on the basis of
merit alone. [590 G-H]
Super Time Scale posts are the highest posts in the
service and selection for promotion and appointment on that
basis in the service has to be made on the basis of merit
alone and not on the basis of seniority-cum-merit in the
proportion of 50:50.[591 G]
J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State
of U. P. and Ors. [1961] 3. SCR 185; Lt. Col. Prithi Pal
Singh Bedi etc. v. Union of India and Ors. [1983] 1. SCR
393-referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4032 &
4033 of 1989.

From the Judgment and Order dated 30.4.1988 of the
Rajasthan High Court in D. B. Civil W. P. Nos. 694 & 696 of
1988.

Appellant in person in C. A. No. 4032 of 1989. Rajinder
Sachher, and Ravinder Bana for the Appellant in C. A. No.
4033 of 1989.

Aruneshwar Gupta for the Respondents in both the
appeals.

The Judgment of the Court was delivered by
PUNCHHI, J. The identification of the highest
post/posts in the Rajasthan Administrative Service, capable
of being filled by merit alone, under sub-rule (7) of 28-B
of the Rajasthan Administrative Service Rules, 1954
(hereafter referred to as the `Rules'), is the search
undertaken in these two connected appeals by special leave.

The respective appellants herein are Ajeet Singh
Singhvi, who appeared in person, and Jagbir Singh who
appeared through learned counsel. Both the appellants, at
the time they moved the Rajasthan High Court by means of
their respective writ petitions, were high ranked officers
in the Rajasthan Administrative Service but found their
further chances to promotion obstacled on account of the
amendments caused in the said Rules with effect from July
17, 1987. Broadly stated, on such amendments a Super Time
scale was created which statedly was to remove stagnation in
service. The contention of
the appellants before the High Court was, and is, that the
creation of Super Time scale did not have the automatic
effect of creating highest post/posts to be filled by merit
alone, and that the posts which Super Time scale was
attractive remained `higher posts' in contrast to `highest
post' available to the members of the Rajasthan
Administrative Service on the prescribed percentage of 50
percent on merit and the remaining fifty percent on
seniority-cum-merit. The appellants challenged the vires of
the amendments dated 17-7-1987 for confining the selection
to the highest posts made thereafter solely on the basis of
merit. Before the High Court, however, the question of vires
of the amendments was given up and thus the High Court
invited its attention to the following two questions:

(i) whether the Super Time scale is/are the highest
post/posts in the service; and

(ii) if it is so, whether that post/posts is/are to be
filled on the basis of seniority-cum-merit in the proportion
of 50:50 or on merit alone in accordance with sub-rule (7)
of Rule 28-B of the Rules?

The High Court by a long and an elaborate judgment,
dated 30.4.1988 traced the history of the Rules and the
amendments made to rules 28-B and 32 from time to time
expressed the opinion that Super Time scale post/posts
was/were the highest post/posts in the service and those
required to be filled on merit alone and not in the
proportion of 50:50 on the basis of merit and seniority-cum-
merit. It is to challenge that view that these matters are
here before us and we have had the opportunity of hearing
the party in person and learned counsel on both sides.

We begin by taking note that the word `highest' has not
been given a definitive meaning in the Rules, and has to be
understood and employed in the context in its ordinary
meaning and diction. Rule 6 prescribes the strength of the
service. It mandates that the strength of post in each grade
of the service shall be such as may be determined by the
government from time to time. The proviso thereto leaves all
the possible flexibility with the government in the creation
of any post of any kind and nature and for its abolition.
The latest notification in that regard, as was placed before
us, is Notification No. F1(2) Karmik/ Ka-IV/79 dated January
12, 1988 issued from the Department of Personnel and
Administrative Reforms, Government of Rajasthan specifying
that as per Rule 6 of the Service Rules, the strength of
posts
in each grade of Rajasthan Administrative Service is
determined therein. The said notification is found in a
compilation prepared by the Rajasthan Administrative Service
Association, amended upto June, 19,1988. It demonstrates
posts with their titles divided into seven categories. The
first category is of Super Time Scale posts in the grade of
Rs. 3900-125-4400-150-5300. The second category is of
selection scale post in the grade of 2978-75-3050-100-3650-
125-4400-150-4700. Thereafter there are lesser pay-scale
given in the third category of senior scale posts and in the
fourth category, junior scale posts followed by special ex-
cadre posts, training reserve and leave reserve posts. The
Super Time Scale posts are 25 in number and those posts are
named and numbered as follows:

-----------------------------------------------------------

S. NO. Name of the Post No. of Posts

-----------------------------------------------------------

1. Director of Agriculture Marketing & Ex- 1
Officio Dy. Secy. to Govt.

2. Director, Local Bodies 1

3. Commissioner, Devasthan Deptt. 1

4. Revenue Appellate Authority 10

5. Principal, A.P.R.T.S., TONK 1

6. Addl. Divisional Commissioners 6

7. Addl. Director, HCM RIPA, Udaipur 1

8. Addl. Commissioner, Co,. Cum-R. A. A., Bikaner1

9. Addl. Commissioner, TAD 1

10. Addl. Commissioner, Desert Dav. 1

11. Addl. Commissioner, Transport 1

-----
------------------------------------------------------------

Now whether these posts are the highest posts in the
Rajasthan Administrative Service or are just higher posts,
so as to identify the criteria applicable for promoting to
these posts their personnel.

`Service' has been defined in Rule 4-L to mean the
Rajasthan Administrative Service. Sub-rule (7) of Rule 28-B
prescribes that
selection for promotion to the highest post/posts in the
State Service shall always be made on the basis of merit
alone. As said before, `highest posts' has nowhere been
defined. Prior to the amendment of July 17, 1987, sub-rule
(7) read as follows:

"Selection for promotion to the highest post or highest
category of posts in the State Service shall always be made
on the basis of merit alone."

According to the appellants, prior to July 17, 1987 the
highest post was never identified and equally the highest
category of posts were nowhere visible. The posts now
falling in the Super Time Scale, tabulation of which stands
incorporated above, were always considered as higher posts
and in terms of sub-rule (6) of rule 28-B,Selection for
promotion to all other higher posts/higher category of posts
in the State Service were required to be made on the basis
of merit and seniority-cum-merit in the proportion of 50:50.
The proviso, however, to sub-rule (6) provided that if the
Committee (appointed under Rule 28) was satisfied that
suitable persons are not available for selection by
promotion strictly on the basis of merit in a particular
year, selection by promotion on the basis of seniority-cum-
merit may be made in the same manner as specified in these
Rules. The two appellants maintained that before the
introduction of the Super Time scale vide amendment dated
July 17, 1987 there were only three categories, namely,
ordinary scale posts (alternatively known as junior scale),
senior scale posts and selection scale posts in the Service
and these continued as such despite the amendments. Before
the High Court the exercise to identify the Super Time
selection posts would have been easy had the government
notification dated 12th January,1988 been brought to its
notice. In any event after the issuance of the Government
notification dated 12th January, 1988, those very posts in
the Service have now been designated as junior scale, senior
scale, selection scale and super time scale posts and for
valid administrative reason have Super Time Scale posts been
treated as highest posts even though they may have hitherto
belonged to the category of higher posts; the State Service
remaining the same.

Rule 15 prescribes eligibility for consideration for
promotion on the basis of qualifying service for promotion.
Rule 28 prescribes the procedure for promotion and
postulates the Constitution of a Commitee. Rule 28-B, so far
as is relevant for our purpose, is called out below:

"28-B REVISED CRITERIA, ELIGIBILITY AND
PROCEDURE FOR PROMOTION TO JUNIOR, SENIOR AND OTHER
POSTS ENCADRED IN THE SERVICE-

(i) As soon as the appointing authority
determines the number of vacancies (under rule 9 of
these Rules) and decides that a certain number of
posts are required to be filled in by promotion, it
shall, subject to provisions of sub-rule (9),
prepare a correct and complete list of senior-most
persons who are eligible and qualified under these
Rules for promotion on the basis of seniority-cum-

merit or on the basis of merit to the class of
posts concerned.

(2) For appointment to the Service by
promotion, the eligible persons included in the
list mentioned in rule 28 shall be considered.

(3) xxxxxxxxxxx
(4) Selection for promotion in the reguler
line of promotion from the post/posts not included
in Service to the lowest post or category of post
in the Service shall be made strictly on the basis
of merit and on the basis of seniority-cum-merit in
the proportion of 50:50.

PROVIDED that if the Committee is satisfied
that suitable persons are not available for
selection by promotion strictly on the basis of
merit in a particular year, selection by promotion
on the basis of seniority-cum-merit may be made in
the manner as specified in these Rules.

(5) Subject to the provisions of sub-rule
(7),selection for promotion from the lowest post or
category of post in the State Service to the next
higher post or category of post in the State
Service and for all posts in the Subordinate
Services and in the Ministerial Services shall be
made strictly on the basis of seniority-cum-merit
from amongst the persons who have passed the
qualifying examination, if any, prescribed under
these Rules, and have put in at least five years
service, unless a different period is prescribed
elsewhere in these Rules, on the first day of the
month of April of the year of selection on the post
or category of post from which selection is made:
PROVIDED that in the event of non-availability
of the persons with the requisite period of Service
of five years, the Committee may consider the
persons having less than the prescribed period of
Service, if they fulfill the qualifications and
other conditions for promotion prescribed elsewhere
in these Rules, and are found otherwise suitable
for promotion on the basis of seniority-cum-merit.

(6) Selection for promotion to all other
higher posts or higher categories of posts in the
States Service shall be made on the basis of merit
and on the basis of seniority-cum-merit in the
proportion of 50:50.

PROVIDED that if the Committee is satisfied
that suitable persons are not available for
selection by promotion strictly on the basis of
merit in a particular year, selection by promotion
on the basis of seniority-cum-merit may be made in
the same manner as specified in these Rules.

EXPLANATION: If in a Service, in any category
of post, number of posts available for promotion is
an odd number then for purpose of determining the
vacancies for selection by promotion on the basis
of seniority-cum-merit and merit in the proportion
of 50:50, the following cyclic order shall be
followed:

The first vacancy by seniority-cum-merit; The
subsequent vacancy by merit; The cycle to be
repeated.

(7) Selection for promotion to the highest
post/posts in the State Service shall always be
made on the basis of merit alone:

PROVIDED that-

(a) in a Service or Groups or Sections
thereunder, where there are only two scales e.g.
junior scale or senior scale and there is only one
promotion then promotion shall be made on the basis
of seniority-cum-merit alone;

(b) in a Service or Groups or Section
thereunder, where there are three scales e.g.
junior scale, and selection scale and there are two
promotions then promotion shall be as under:
(i) first promotion on the basis of seniority-
cum-merit.

(ii) second promotion on the basis of
seniority-cum-merit and merit in the proportion of
50:50;

(c) in Services or Groups or Sections
thereunder, where there are more than two
promotions then first promotion shall be made on
the basis or seniority-cum-merit alone and
promotions to subsequent higher posts shall be made
on the basis of seniority-cum-merit and merit in
the proportion of 50:50 except to the highest post.

PROVIDED further that if the Committee is
satisfied that suitable persons are not available
for selection by promotion to highest post/posts,
strictly on the basis of merit in a particular
year, selection by promotion to highest post/posts
on the basis of seniority-cum-merit may be made in
the same manner as specified in these rules.

(8) The persons having been selected and
appointed by promotion to a post or category of
post on the basis of merit, shall be eligible for
promotion to the next higher post or category of
post, which is to be filled in by merit, only when
they have put in after regular selection, at least
five years' service, unless a higher period of
Service is prescribed elsewhere in these Rules, on
the first day of the month of April of the year of
selection on the post or category of post from
which selection is to be made:

PROVIDED that the condition of five years'service
shall not be applicable to a person, if any
person junior to him is eligible for consideration
for promotion on the basis of merit.

PROVIDED further that in the event of non-
availability of persons equal to the number of
vacancies to be filled in, eligible for promotion
in the category of post next lower from which
promotion is made, the Committee may consider the
persons having less than five years' service, if
they are found otherwise suitable for promotion on
the basis of merit alone.
EXPLANATION: If any doubt arises about the
categoriesation of the post as the lowest, next
higher or highest post in the Service, the matter
shall be referred to the Government in the
Department of Personnel and Administrative Reforms
whose decision thereon shall be final.

(9) The zone of consideration of persons
eligible for promotion shall be as under:

i) no. of vacancies no. of eligible
persons to be
considered

a) for one vacancy Five eligible
persons

b) for two vacancies Eight eligible
persons

c) for three vacancies Ten eligible
persons

d) for four or more vacancies Three times the
number of vacancies.

ii) Where, the number of eligible persons for
promotion to higher post is less than the number
specified above, all the persons so eligible shall
be considered.

iii) Where,adequate number of candidates belonging
to the Scheduled Castes or the Scheduled Tribes, as
the cases may be, are not available within the zone
of consideration specified above, the zone of
consideration may be extended to five times the
number of vacancies and the candidates belonging to
the Scheduled Castes or the Scheduled Tribes, as
the case may be, (and not any other) coming within
the extended zone of consideration shall also be
considered against the vacancies reserved for them.

iv) For the highest post in a State Service

a) if promotion is from one category of post,
eligible persons upto five in number shall be
considered for promotion;

b) if promotion is from different categories of the
post in the same pay scale, eligible persons upto
two in number from each category of posts in the
same pay scale shall be considered for promotion;
c) if promotion is from different categories of
posts carrying different pay scales, eligible
persons in the higher paying scale shall be
considered for promotion first and if no suitable
person is available for promotion on the basis of
merit in the higher pay scale then only the
eligible persons of other categories of posts in
lower pay scales shall be considered for promotion
and so on and so forth. The zone of consideration
for eligibility in this case shall be limited to
five senior-most eligible persons in all.

10. xxxxxxxx

11. a) XXXXXX

b) XXXXXX

c) XXXXXX

12. XXXXXX

13. XXXXXX

14. XXXXXX

15. XXXXXX

16. XXXXXX
Rule 32 after the amendment reads as follows:

"32. APPOINTMENT TO SENIOR POST-(1) [In
accordance with vacancies determined according to
the provisions laid down in rule 9] appointment to
[senior scale, selection scale and super-time
scale] post shall be made by Government from
amongst the members of the Service in accordance
with the selection having been made on the basis of
merit and seniority-cum- merit on the
recommendations of a Committee which shall consist
of following:

1. Chairman, Rajasthan Public Service Commission
...Chairman

2. Chairman, Board of Revenue ...Member

3. Secretary to Government in
Super-time scale of the
Indian Administrative
Service, as may be nominated
by the State Government ....Member

4. Special Secretary to Govt.

in the Department of Personnel ...Member
Secretary
PROVIDED that in case any Member or Member
Secretary, as the case may be constituting the
Committee has not been appointed to the post
concerned the officer holding charge of the post
for the time being shall be the Member or Member-
Secretary, as the case may be of the Committee.

(2) Except as provided in this rule, the
procedure and the principles for selection by merit
shall, in so far it may apply, be the same as
provided in rule 28-B. For selection by seniority-
cum-merit, the Committee shall consider the cases
of all the persons eligible for promotion by
examining their Confidential Rolls and Personal
Files and interviewing such of them as they may
deem necessary, and shall select a number of
candidates equal to the number of vacancies likely
to be filled by promotion by seniority-cum-merit.

PROVIDED (1) that appointment to the senior or
selection grade post [or super-time scale] post may
be made by Government by appointing thereto
temporarily a person eligible for appointment by
the promotion to the Service under the provisions
of these Rules.

(2) No appointment made under [proviso (1)]
above shall be continued beyond a period of one
year without referring it to the Commission for
their concurrence and shall be terminated
immediately on their refusal to concur".
Argument was sought to be built that in Rule 32, Super
Time scale was introduced with effect from 17-7-1987
whereunder the Government was required to make an
appointment on the basis of merit and seniority-cum-merit on
50:50 basis in accordance with subrule 6 of rule 28-B in the
absence of identification of posts. The argument looses its
thrust in entirety when viewed on the basis of sub-rule (2)
whereunder the procedure and principles for selection by
merit
shall, in so far it may apply, is the same as provided in
rule 28-B. which embodies sub-rule (7) as well. We have in
the context to apply the Rule of harmonious construction.
In

The J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. The
State of Uttar Pradesh & Others
; [1961] 3 SCR 185 this Court
applied the rule of harmonious construction even to
subordinate legislation and laid down as follows:

"In applying the rule however we have to remember
that to harmonise is not to destroy. In the
interpretation of statutes the courts always
presume that the legislature inserted every part
thereof for a purpose and the legislative intention
is that every part of the statute should have
effect. These presumption will have to be made in
the case of rule making authority also."

Then again in Lt. Col. Prithi Pal Singh Bedi etc. v.
Union of India & Others, [1983] 1 SCR 393 at pages 404-05 it
was observed as follows:

"The dominant purpose in construing a statute is to
ascertain the intention of the Parliament. One of
the well recognised canons of construction is that
the legislature speaks its mind by use of correct
expression and unless there is any ambiguity in the
language of the provision the Court should adopt
literal construction if it does not lead to an
absurdity. The first question to the posed is
whether there is any ambiguity in the language used
in rule 40. If there is none, it would mean the
language used, speaks the mind of Parliament and
there is no need to look somewhere else discover
the intention or meaning. If the literal
construction leads to an absurdity, external aids
to construction can be resorted to. To ascertain
the literal meaning it is equally necessary first
to ascertain the juxtaposition in which the rule is
placed, the purpose for which it is enacted and
the object which it is required to subserve and the
authority by which the rule is framed. This
necessitates examination of the broad features of
the Act."

On the application of above principles, it is
noticeable that the terms `higher post' and `highest post'
occuring in Rules 28-B and 32 by all means are relative ones
expected to be created in singular or plural terms under
Rule 6 whereunder the strength of posts in each grade was
determinable by the government from time to time. Sub-rule
(7) even before the amendment of 17-7-1987 postulated a
highest post/posts capable of being filled on the basis of
merit alone. The fact
that they
remained un-identified gives no basis to the plea that the
State was incapacitated to identify at a later stage the
highest posts in the State Service required to be filled on
the basis of merit alone. It seems to us, on a close
analysis,and on the language employed in Rules 28-B and 32
that the highest post/posts conceptually were part of the
Rules but their effectuation and identification has surfaced
only by means of the amendments of July 17, 1987 and the
notification of January 12, 1988.

Another significant factor which leans towards such an
interpretation is the stance of the State which militates
against the views canvassed on behalf of the appellants.
There is an inbuilt safety kept in the explanation added to
sub-rule (8) of Rule 28-B which prescribes that if any doubt
arises, amongst others, about the categorisation of the
posts as the highest posts in the Service, the matter shall
be referred to the government in the Department of Personnel
and Administrative Reforms, whose decision there on shall be
final. The appellants could easily have raked up and got
referred the matter to the government to have a decision
thereon. The view of the government in maintaining that the
Super Time scale posts are highest posts is not only a bare
and literal interpretation given by it to the Rules but also
is reflective of its policy in this regard and no decision
needs to be given by the Court in normal circumstances to
amend or alter such policy. In such a realm even
contemporaneous exposition of a similar rule in an other set
of rules cannot play their part to influence either the
Court or the Government to give the same interpretation or
exposition to the rules requiring interpretation herein.
Besides the government being the author of the rule, has
kept to itself, as a matter of prudence; the right to remove
any ambiguity about the identification of any post including
the highest post/posts. The stance of the government in this
regard should have clinched the matter but since the same
had been put forth as a defence in the High Court, its view
nonetheless are entitled to great weight and the burden of
the appellants to lift that weight, an uphill task by all
means, has remained unfulfilled.

To sum up, our interpretation of the rules is in accord
with the interpretation of the rules as put by the High
Court holding that the Super Time scale posts are the
highest posts in the Service and selection for promotion and
appointment on that basis in the Service has to be made on
the basis of merit alone and not on the basis of seniority-
cum-merit and merit in the proportion of 50:50. In the facts
and circumstances of the case, however, we pass no order as
to costs, while dismissing the appeals.

Y.L. Appeals dismissed