# A. JANARDHANA v. UNION OF INDIA AND OTHERS

- **Citation:** [1983] 2 S.C.R. 936
- **Court:** Supreme Court of India
- **Decided:** 1983-04-26
- **Case number:** Civil Appeal No. 360 of 1980
- **Bench:** D.A. Desai, V. Balakrjshna Erad1
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-janardhana-v-union-of-india-and-others-8464
- **Pages:** 35

## Headnote

Service Jurisprudence-Anomal!' in recruitnient Rules-Inter-se-seniority of
Direct Recruits and promotees in the Military Engineer Services Class 1Seniority Lists drawn up in 1963 and 1967/68, on the principle of length of
service-Continuous officiation, altered lo one b:ised on quota between direct
recruits and promotees leading to rota for confirn1ation, tretaing many earlier
promotees as surplus and out of the list-Validity of the revised 1974 inter-se
Seniority List and the panal of p,.01notion prepared and published on January 13,
1975, based thereon-Military Engineer Services, Class I, (Recruitn1ent Promotion
and Seniority) Rules, 1949, which hecan1e statutory with effect from 1.2.69-Rules 3
and 4 read with Rule 23 of Pait 111,para 3 of Appendix V and Army Instruction
241of1950, scope of-Constitution of India, Article 14.
•
Appellant joined service as supervisor in the year 1953 in what is styled
as Military Engineering Service. He can1e to be promoted as Assistant Execu~
tive Engineer in 1962. In the seniority list of AEE drawn up in the year 1963,
he was shown at serial no. 357. In the seniority list of 1967, the appellant's
name was found at serial no. 234. But as a result of- the decision in Bachan
Singh's case, the Union GoverD.inent set aside the seniority lists of 1963 and
1967/68 and drew up a fresh list on the criteria drawn fron1 the decision in
Bachan Singh's case. In the seniority list so drawn, the appellant's name did
·not find a place at all because he was pushed down, treating still as surplus,
after applying the quota fron1 the date of the constitution of the service itself
in 1951, applying the ratio of 9:1 between the direct recruits and the promotees.
If he were to be treated as surplus in this manner the appellant cannot be
adjusted and treated as a member till 1989 by which he may retire, of the
service within the definition of that expression found in the Military Engineers
Services Rules (Recruitment, Promotion and Seniority) Rules 1949 as amended
from time to time. The Union of India understood the decision in Bachan
Singh's case to mean that there was a quota for recruitment in the cadre of
AEE in MES Class I of9 direct recruits to one promotee (9:1) since 1951 and
that the quota must lead to rota for confirmation and thus redrew the seniority
list with the startling result of the appellant and several others similarly situated unable to get a berth at all.
The appellant therefore, filed a writ petition no. 4293/79 questioning
the validity and legality of the revised seniority list Ex. 'D' circulated with
letter dated June 14, 1974 and to cancel the panel of promotion prepared and
i;ommunicated in E,E.C's proceedings no. 65020/EE/74/EIR/dt January 13, 1975
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A. lANAkDllAN V. tJNmN
drawn up on the basis ofthe impugiled revised seniority list. The writ petition
having been dismissed, the appellant has come up in· appeal' by special leave.
A
Allowing the appeal, the Court
HELD : !. The seniority lists of 1963 and 1967/68 were quite legal and
valid and hold the field till 1969 having been drawn up on the basis of the
principle which satisfies the test of Article 16. Their revision can be made in
respect of members who joined service after 1969 and the period subsequent
B
to 1969. [963 E-FJ
2:1 The seniority list "Ex. D" circulated with the letter dated June 4,
1974 and the panel for promotion included in E-E-C's proceedings no. 65020/
EE/74/EIR dated January 13, 1975 drawn up on the basis of that list are incorrect and sten1
from a misunderstanding and misinterpretation or the
Supreme Court's decision in Bachan Singh and Anr. v. Union oj· lnilia and Urs.
(1972} 3 SCR 898. [905 H, 966 A-CJ
2:2 There was no justification for redrawing the seniority iist In 1974
affected persOns recruited or pro1noted prior to 1969 when the rules acquired
statutory character. No doubt, it is open to the Government to prescribe
princi_ples for determining inter-se seniority of Persons belonging to the same

## Text

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A. JANARDHANA
v.
UNION OF INDIA AND OTHERS
April 26, 1983
[D.A. DESAI AND V. BALAKRJSHNA ERAD1, JJ.)
Service Jurisprudence-Anomal!' in recruitnient Rules-Inter-se-seniority of
Direct Recruits and promotees in the Military Engineer Services Class 1Seniority Lists drawn up in 1963 and 1967/68, on the principle of length of
service-Continuous officiation, altered lo one b:ised on quota between direct
recruits and promotees leading to rota for confirn1ation, tretaing many earlier
promotees as surplus and out of the list-Validity of the revised 1974 inter-se
Seniority List and the panal of p,.01notion prepared and published on January 13,
1975, based thereon-Military Engineer Services, Class I, (Recruitn1ent Promotion
and Seniority) Rules, 1949, which hecan1e statutory with effect from 1.2.69-Rules 3
and 4 read with Rule 23 of Pait 111,para 3 of Appendix V and Army Instruction
241of1950, scope of-Constitution of India, Article 14.
•
Appellant joined service as supervisor in the year 1953 in what is styled
as Military Engineering Service. He can1e to be promoted as Assistant Execu~
tive Engineer in 1962. In the seniority list of AEE drawn up in the year 1963,
he was shown at serial no. 357. In the seniority list of 1967, the appellant's
name was found at serial no. 234. But as a result of- the decision in Bachan
Singh's case, the Union GoverD.inent set aside the seniority lists of 1963 and
1967/68 and drew up a fresh list on the criteria drawn fron1 the decision in
Bachan Singh's case. In the seniority list so drawn, the appellant's name did
·not find a place at all because he was pushed down, treating still as surplus,
after applying the quota fron1 the date of the constitution of the service itself
in 1951, applying the ratio of 9:1 between the direct recruits and the promotees.
If he were to be treated as surplus in this manner the appellant cannot be
adjusted and treated as a member till 1989 by which he may retire, of the
service within the definition of that expression found in the Military Engineers
Services Rules (Recruitment, Promotion and Seniority) Rules 1949 as amended
from time to time. The Union of India understood the decision in Bachan
Singh's case to mean that there was a quota for recruitment in the cadre of
AEE in MES Class I of9 direct recruits to one promotee (9:1) since 1951 and
that the quota must lead to rota for confirmation and thus redrew the seniority
list with the startling result of the appellant and several others similarly situated unable to get a berth at all.
The appellant therefore, filed a writ petition no. 4293/79 questioning
the validity and legality of the revised seniority list Ex. 'D' circulated with
letter dated June 14, 1974 and to cancel the panel of promotion prepared and
i;ommunicated in E,E.C's proceedings no. 65020/EE/74/EIR/dt January 13, 1975
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A. lANAkDllAN V. tJNmN
drawn up on the basis ofthe impugiled revised seniority list. The writ petition
having been dismissed, the appellant has come up in· appeal' by special leave.
A
Allowing the appeal, the Court
HELD : !. The seniority lists of 1963 and 1967/68 were quite legal and
valid and hold the field till 1969 having been drawn up on the basis of the
principle which satisfies the test of Article 16. Their revision can be made in
respect of members who joined service after 1969 and the period subsequent
B
to 1969. [963 E-FJ
2:1 The seniority list "Ex. D" circulated with the letter dated June 4,
1974 and the panel for promotion included in E-E-C's proceedings no. 65020/
EE/74/EIR dated January 13, 1975 drawn up on the basis of that list are incorrect and sten1
from a misunderstanding and misinterpretation or the
Supreme Court's decision in Bachan Singh and Anr. v. Union oj· lnilia and Urs.
(1972} 3 SCR 898. [905 H, 966 A-CJ
2:2 There was no justification for redrawing the seniority iist In 1974
affected persOns recruited or pro1noted prior to 1969 when the rules acquired
statutory character. No doubt, it is open to the Government to prescribe
princi_ples for determining inter-se seniority of Persons belonging to the same
service or cadre except that any such principle must n1eet the test of Article 16.
It is equally open to the Government to retrospectively revise s..:rvice rules, if
the same does not adversely affect vesled rights. But if the rule for determining
inter se seniority is revised or a fresh rule is framed, it must be constitutionally
valid. The criterion adopted is iHegal and invalid. It overlooks the character
of the appointments made during the period 1959 to 1969. It treats valid
appointments as of doubtful validity. It pushes down persons validly appointed
below those who were never in service and for reasons unknown with retrospective effect i.e. from 1951. [965 G-H, 966 B-C]
3. In Bachan Singh's case, the Supreme Court, after reviewing the
history of the MES rules from 1949 to 1969 held as follows :
(i) The •!949 Rules' and the subsequent amendments acquired statutory
character in 1969 because as a result or 1969 amendment, the entire body of
rules Of Class I became statutory rules by incorporation and till then they we:e
mere administrative instructions. (952 A]
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(ii) Under rules~ and 4 of the 1949 Rules, .the recruitment to MES
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Class I could be made from two sources only, namely, by competitive ex.amination,held in India in accordance with Part II of the Rules, which.makes
extensive provisions for holding examination including the eligibility for
admission to the same, and by promotion in accordance with Part II of the
Rules. [9S2 BJ
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(iii) During the years 1962, 196J and 1964 particularly and until the
year 1969, the Class I Service Rules were not statutory in character. The
Union Government relaxed the Rules both in regard to recruitment by interview
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SUPREME cotiRT iUliloRTS
lt983) 2 s.c.R.
and in regard to the quotas fixed by the Rules for
direct recruitment and
recruitment by promotion to Class I Serv~ce, the quota rule being 9:1 as per
Rule 4. [953 A B, DJ
(iv) In 1962, there was a state of emergency. Engineers were immediately
required to fill the temporary posts in Class I service. To meet the emergency
the Union Governn1ent in consultation with the Union Public Service Com~
mission d~cided to directly recruit candidates by advertisement and selection
by interview only by the Union Public Service Commission. The Government
with the aid of selection and interview by the UPSC directly recruited some
respondents to Class I service in the years 1962, 1963 and 1964. [953 D-EJ
(v) In respect of the vacancies that occurred between 1951 and 1971,
because of the emergency, the quota rule for tilling them was ignored both for
departmental promotees and direct recruitment; and [953 E-GJ
(vi) Therefore, the appointment of those direct recruits who were
appoirited after interview by the Union Public Service Commission, that is by
a method not permitted by the rules was valid and legal in as much as that
Was done in relaxation of the rules both as to competitive examination and
the pron1otions were given after relaxing the quota rule. The direct recruits
who were appointed by interview did fall within the class of direct recnlits.
[954 B-C]
(vii) Rule 24 which was introduced in 1967 conferred power on the
Union Government for the reasons to b~ recorded in writing and after con•
sultation with the Union Public Service Commission to relax all or any of
the rules with respect to class or category of persons/posts. As the 1949 rules
were non·statutory in character till 1969, the Government did make the
recruitinents from both sources after exercising the said power to relax
the rules. [954 G, 955 A, BJ
4.1 If Rule 3 of M.E.S. (R.P.S.) Rules provided methods of recruit•
ment indicating the sources from which recruitment could. be made and if
rule confers discretion on Government to make recruitment from either source
because Rule: 4 opens with a limitation, namely, that it is subject to Rule 3~
now, if as held in Bachan Singh's case~ "1949 Rule's", while prescribing the
quota conferred power on the Union Government _to make recruitment in
relaxation of the rules, it is implicit in this power to make recruitment in
relax,ation of the quota rule and it is adn1itted that because of the emergency
and because of the exigencies of service, recruitment was made in relaxation
of the rules, in this case. It is this emergency and the dire need of urgently
recruiting engineers which led the Government to make recruitment in relaxation of quota rule by foregoing the competitive examination and promoting
subordinate ranks to class I service. Petitioners and similarly situated
persons were thous promoted to meet the dire need of service in relaxation of
the quota rule.
[955 F-G]
4.2 It is true that where the rule provides for recruitment from two
sources and simultaneously prescribes quota, unless there is power to relax
the rule any recruitment in eKcoss of the qμota from either of the sour<ea CQuill
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A. iANARDHANA V. UNION
939
be illegal and the excess recruits unless they find their place by adjustment in
subsequent years in the quota, would not be members of the service.
[955 G, H, 956 A]
S. G. Jaisinghani v. Union of India, [1967] 2 SCR 703 at p. 718; B." S.
Gupta v. Union of India (Ist Gupta's case), [1975] Suppl. SCR 491; B. S. Gupta v.
Union of India (2nd Gupta's case) [1975] l SCR 104; referred to.
4.3 But, when recruitment is from two independent sources, subject to
prescribed quota, but the power is conferred on the Government to make
recruitment in relaxation of the rules, any recruitment made contrary to the
quota rules would not be invalid, unless it is shown that the power of relaxa~
tion was exercised, ma/a.fide, that is not the contention in this case nor voiced
in Bachan Singh's case. [957 C·EJ
N.K. Chauhan & Others v. State of Gujarat and Others, [1977] l SCR
1037; referred to.
4:4. Now, if recruitment contrary to Rule 3, namely, by interview by
the Union Public Service Commission, which is not the recognised mode of
recruitment, is held valid in Bachan Singh's case on the ground that it was
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done in relaxation of the rules, it must follow as a cotollary that the san1e
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emergency compelled the Government to recruit by promotion engineers-to the
post of AEE class I in exeess of the quota by exercising the power of relaxation
and such recruitment ipso facto would be valid. The promotees being validly
promoted as the quota rule was relaxed would become the members of the
service. [957 G-H, 958 A]
4:5 The '1949 Rules' do not throw any light on the composition of the
service, except the fact that the expression "servk:e" has been defined to mean
Military Engineering Service, Class I. If the recruitment is made from either
of the sources and is otherwise legal and valid, persons recruited to temporary
posts would nonethele"s be members of the service. Keeping in view the
exigencies of service and the requirements of the State, temporary posts would
be a temporary addition to the strength of the cadre, unless it is made clear to
the contrary that the temporary posts are for a certain duration or the appoint~
ments to temporary posts are of an ad hoc nature till such time as recruitment
according to rules is made. In the absence of any such provision, persons
holding permanent and temporary posts would become the members of the
service provided the recruitment to the temporary posts is legal and valid.
Once the recruitment is legal and valid, there is no difference between the
holders of permanent posts and temporary posts in so far as it relates to all
tho members of the service. [958 B-DJ
In the instant case, the question whether the vacancies Wfil'e in the perma"'
ncnt strengh or in the temporary cadre is irrelevant because none of the
appellants and others similarly situated is reverted on the ground that no more
vacancy is available. [958 A]
S. B. Patward/ran & Ors v. State of Maharashtra & Or1, [1977] 3 SCR
775 @ 795 followed.
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SUPREME COUR'I' REPORTS
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5:1 It is well recognised principle of service jurisprudence that any rule
of seniority has to satisfy the test of equality of opportunity in public service
a'i enshrined in Article 16. Equally yet well recognised canon is that in the
absence of any other valid rule for determining inter se seniority of member.~
belonging to the same ser~·ice, the rule of contihuous uninterrupted service since
the entry would .be valid and would satisfy the test of Article 16. Apart from
this general principle for determining inter se seniority in the instant case, there
is a specific rule nan1ely para 3(iii) of Appendix V of 1949 Rules, governing
inter se seniority between direct recruits and promotees in MES, Class I Service
and it was in force till 1974 when the impugned list was drawn up.
[960 F-H]
5:2 In para 3(iii) of Appendix V of 1949 Rules, it was proviaed that a
roster shall b~ maintained indicating the order in which appointments are to be
made by direct recruitment and promotion in accordance with the percentages
fixed for each method of i'ecrllitment in the recruitment rules. The relative
seniority of prornotees and direct recruits shall be determined by the dates on
which the vacancies reserv.ed for the directs and the promotees occur. This
rule was related to the quota of 9: 1 between direct recruits and promotees
prescribed in Rule 4. [%1 A-CJ
5:3 A combin_ed re,1ding of Rule 4 and para 3(iii) of Appendix V would
clearly show that a roster ha~ to be maintained ·consistent with the quota sO
that the relative inter se seniority of promotees and direct recruits to be determined by the date on which va..::ancy occurred and the vacancy is for the direct
recruit or for the promotee. If quota prescribed by rule 4 was adhered to or
was inviol::1.ble, the r...ile of seniority enunciated in para 3(iii) of Appendix V
will have to be given full play and the seniority list has to be drawn in accordance with it. But as quota rule was directly inti.:rrelated with the seniority
rule and one~ the quota rule gave way, the seniority rule enunciated in para
3(iii) of Appendix V became wholly otiose and ineffective.
[961 C-E]
It is well recognised that Where the quota rule is linked with the beniority
rule, if the first breaks down or is illegally not adhered to giving effect to
the second would be unjust, inequitous and improper. In the instant case,
therefore, once the quota rule was wholly relaxed between 1959 and 1969 to
suit the requirement of service and the recruitment made in relaxa\ion of the
quota rule and the minimum qualification rule for direct recruits is held tO be
valid, no effect can be given to the seniority rule enunciated in para 3(iii),
which was who11y inter-linked with the quota rule and cannot exist apart from
it on its own strength. Further, this position is impliedly accepted by the
Union Government and is implicit in the seniority lists prepared in 1963 and
1967-68 in respect of AEES, because both these seniority lists were drawn up in
accordance with the rule of seniority enunciated in Annexure 'A' to Army
Instruction no. 241 of 1950 dated September 1, 1949 and not in compliance
with para 3(iii) of Appendix V.
[961E-H,962 A-BJ
B. S. Gupta v. Union of India (1st Gupta's case) [1975] Suppl. SCR 491.
referred to.
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A, JANARDHANA v. UNION
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5:4 The principle of seniority enunciated in Army Instruction 241 of
1950 is that· the rule for determining inter se seniority in the cadre of Assistants
should generally be taken as the model in framing the rules of seniority for
other services and in respect of persons employed in any particular grade
seniority should as a general rule be determined on the basis of the length of
service in that grade as well as service in an equivalent grade irrespective of
whether the latter was under the Central or provincial government in India or
Pakistan. This was the rule of seniority which would be applicable in the
absence of any other wle specifically enacted for MES class I service. Even a
plausible contention that the seniority rule enunciated in para 3{iii) of Appendix V of 1949 Rules was the one specifically enacted for . MES· class I service
and this special rule would prevail over the general rule issued in Ariny
Instruction 241 would be of no avail in as much as (1) the rule in para 3 (iii)
gave way when the quota rule was relaxed and (ii) in all the subsequent rules
of 1953, 1961 and 19.62, it was clearly stated that the "principles for deter'
mining seniority are under consideration". [962 C-A J
6:1
The two fundamental basic assumptions on which the impugned
seniority list was drawn up are wholly untenable and contrary to the relevant
rules. The first assumption that there was a rigid quota rule and that the
recruitn1ent in excess of the ql:lota would be invalid and the. excess recruits
from either source will have to be.adjusted and regularised in succeeding years,
was probably due to the authorities having been influenced by the observations
in Jai Singhani's case and the two successive B. S. Gupta's cases, all of which
ha,,e no application to tlie facts of the present case. The second assumption
that there was an inviolable quota rule which could not be relaxed Was due to
overlooking the position that once the quota rule was relaxed, the rota for
confirmation disappeared. In the absence of any other rule coupled with the
Army Instructions, upto 1968 continuous officiation would be the only available
rule for deter1nining the inter se seniority. Further as far as the n1inimum
educational qualification is concerned promotees and direct recruits are on par
and the promotees cannot be looked upon as persons belonging to an inferior
breed. [963 D-H, 964 A]
7. The contention that the individuals likely to be affected by the
decision not being impleaded, the writ petition should. fail cannot be accepted.
Factually it is incorrect because by order of the High Court, names of respondents 3 to 419 were deleted and in the Supreme Couit submissions were made
by a counsel for them. In the petition as well as in the appeal the relief is
claimed against the Union of India and the concerned Ministry and not againsf
any individual nor any seniority is claimed by anyone individual against
another particular individual. The contention is that the criteria adopted by
the Union Government in drawing up the impugned seniority list are illegal
and invalid. Therefore, even if technically the dirett recruits were not before
the Court, the petition is not likely to fail on that ground. [966 G-H, 967 A-BJ
Vade Mecum
It is unfortunate that a very unjust, unfair and inequitable situation
having a demoralising effect on public services probably ensuing from certain
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942
SUPREME COURT REPORTS
[1983) 2 s.c.R.
rules framed by the Government and the decisions of this Court has emerged.
Even where the recruitment to a service is from more than one source and a
quota is fixed for each source yet more often the appointing authority to meet
its exigencies of service exceeds the quota from the easily available source of
promotees because the procedure for making recruitment from the market by
direct recruitment is long prolix and time consuming. The Government for
exigencies of service, for needs of public services and for efficient administration, promotee person easily available because in a hierarchical service one
hopes to move upward. After the promotee is promoteS, continuously renders
service and is neither found wanting nor inefftcient and is discharging his duty
to the· satisfaction of all, a fresh recruit from the market years after promotee
was inducted the service comes and challenges all the past recruitments made
before he was born in service and some decisions especially the ratio in
Jai Singhani's case as interpretted in two B. S. Gupta's cases gives him an
advantage to the extent of the promotee being preceded in seniority by direct
recruit who enters ~ervice long after the promotee was promoted. When the
promotee was proni.oted and was rendt!ring service, the direct recruit may be a
schoolian or college going boy. He emerges from t1ie educational institution,
appears at a competitive examination and starts challenging everthing that had
happened during the period when he has had nothing to do with service. A
m~ndamus issued in Jaisingha11i's case led to a situation where promotees of
the year 1962 has to yield place to direct recruits of ·1966 and the position
worsened thereafter. In the case in hand, appellant a promotee of September
27, 1962 is put below N. K. Prinza who appeared at competitive examination
in April 1976 i.e. one who came 14 years after the appellant, and it does not
require an intelligent exercise to reach a conclusion that 14 years prior to 1976
Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12
years and must have been studying in a primary school. Shorn of all se~ice
jurisprudence jargon one can bluntly notice the situ?tion that a primary ,school
student when the promotee was a member of the service, barged in and claimed
and got seniority over the promotee. If this has not a demoralising effect on
service one fails to see what other ineq_uitous approach would be more damaging. It is therefore, time to clearly initiate a proposition that a direct recruit
who comes into service after the promotee was already unconditionally and
without reservation promoted and whose promotion is not shown to be invalid
or illegal according to relevant statutory or non~statutory rules shoq,ld not be
' permitted by an principle of seniority to score a march over a promotee because
that itself being arbitrary would be violative of Arts. 14 and 16.
[968 D-H, 959 A-E]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 360 of 1980.
From the Judgment and Order dated the 15th and 17th May,
1979;of the High Court of Karnataka at Bangalore in Civil Writ
Petition No. 4293 of 1975.
G. L. Sanghi and A. K. Sanghifor the Appellant.
Abdul Khader, N. C. Talukdar and Mis• A. Subhashini for
Respondent Nos. 1 and 2.
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A. JANARDHANA v. UNION (Desai, J.)
P. R. Mridul and H. K., Puri for Respondent Nos. 3 to 11.
M. K. Ramamurthi and Jatindra Sharma for Respondent No.
12.
Dr. Y. S. Chita/e and A.K Sanghi for intervener.
The Judgment of the Court was delivered by
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DESAI, J. Appellant A. Janardhana filed Writ Petition No.
4293 of 1979 questioning the validity and legality of the revised
seniority list Ex. 'D' circulated with the letter dated June 14, 1974
to which the revised seniority list Ex. 'C' was annexed and as a
consequence to cancel the panel of promotion dated January 13,
1975, drawn-up in respect of 102 officers. A mandamus was sought
directing the respondents to give effect to the 1963 Seniority List
drawn-up on the principle of length of service-continuous officiation
as set out in the notification memorandum dated March 11, 196.5.
A cognate Writ Petition No. 4273 of 1979 by one Manjunatha was
also heard and disposed of by the Court along with the writ petition
filed by the appellant.
The factual matrix in juxtaposition with the relevant rules may
be set out in details because the very narration of chronology of
events would illumine the contours of controversy.
Appellant joined service_ as Supervisor in the year 1953 in what
is styled as Military Engineering Services (MES' for short). He
came to tbe promoted as Assistant Executive Engineer (Ai:E)1 in
1962. In the seniority list of 'AEE' drawn up in the year 1963 the
appellant was shown at Serial No. 357.
In the revised seniority list
dated June 14, 1974 impugned in the petition, the appellant did not
find a place because consistent with the quota rule on the basis of
which the impugned revised seniority list of 1974 was prepared, the
appellant was surplus and could not find his berth in the seniority
list. It is necessary to note an intervening event. One Bachan
Singh and Anr., the two promotees to the post of 'AEE' in the years
1958 and 1959 respectively, filed a writ petition in the High Court
of Delhi challenging the appointment of several direct recruits to
'Ml!S' on the ground that their appointment was contrary to and in
violation of the rules of recruitment and they were not validly
appointed and, therefore, could not become members of the service.
The writ petition was dismissed by the High Conrt of Delhi and the
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SUPREME COURT REPORTS
(1983) t S.C.R.
matter was carried in appeal in this Court. The decision rendered
by a Constitution Bench of this Court in Bachan Singh & Anr. v.
Union of India & Ors.(') was interpreted by the first respondent to
mean that the direct recruitment, not by competitive examination
but by interview and viva voce test, was valid and such appointments
being in consonance with the rules, the confirination of said direct
recruits was within the quota of direct recruits in permanent vacancies and was hence valid. The first respondent understood the
decision to mean that there was a quota for recruitment in the
cadre of 'AEE' in 'MES' Class I of 9 direct recruits to 1 promotee
(9:1) since 1951 and the quota must lead to rota for confirmation
and proceeded to redraw the seniority list in 1974 with the startling
result in respect of the appellant and several persons similarly
situated as hereinabove set out. The appellant in his writ petition
questioned the criteria adopted for preparing revised seniority list
of June 1974 on diverse grounds based on the ratio of the decision
in Bachan Singh's case. Criteria may be extracted from the memoranda covering the seniority list dated June 14, 1974 :
"(a) The inter se seniority of direct recruits and departmental promotees is to be fixed in accordance with
the quota laid down in ME (RPS) Rules 1951 from
time to time. The same quota is to apply both in the
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(b) Seniority List of Assistant Executive Engineers is to ·
be prepared upto 1968 and excess departmental promotees who cannot be brought into the cadre have
to be shown separately and brought in the cadre on
the basis of quota as and when vacancies become
available.
(c) From 1.2.1969, the date on which the rules.became
statutory, the seniority of excess departmental promotees (Approx 'B') of the !!st is to be regulated ~s
under :
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(i) The seniority of departmental promotees who
are brought into cadre from 1969 onwards will
count along with direct recruits of the year in
(!) [1972] 3 SCR 898.
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A. iANARDHANA v. UNION (Desai, J.)
which the promotees are brought, into the cadre
and any service for further promotion to higher
posts. For example a departmental promotee
of 1966, if brought on the incadred list in 1970
will count only the service in the grade of AEE
after 1970 for seniority in that grade for further
promotion as EE.
(ii) All excess prmllotees who are holding higher
appointment will be eligible for consideration
for further promotion on completion of the
requisite service after their adjustment in the
cadre.
(d) The revised seniority list based on the above decisions
will be subject to the out-come of the writ petition
pending in the Andhra Pradesh High Court and any
other legal pronouncement that may be made in this
behalf. All promotions based on this seniority list
will also be subject to revision on the availability of
the judgment in the writ petition. While making
promotions therefore, it may be made clear that these
promotions will be subject to any further decision
of the Court."
945
It would be advantageous to mention th.at the criteria had the
flavour. emanating from tlie reading and understanding of the decision
in Bachan Singh's case. If the understanding or interpretation of
the ratio Bachan Singh's decision is incorrect or contrary to , what
is. laid down, the unavoidable consequence would be that the seniority list drawn up on such incorrect or misinterpreted ratio would
not only fall but it would have to be quashed.
Let us therefore
first refer to the various stages through which relevant rules have
moved leading to the decision in Bachan Singh' s case. There is a
glut and mass of rules bearing on the snbject and we may briefly
weave through them.
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By notification dated September
I 7, 1949, the Ministry of
Defence published Rules styled as Military Engineer Services, Class
I (Recruitment, Promotion and Seniority) Rules (1949 Rules for
short). 'Service' was \!efined to mea11 Military Engineer $ervi~s,
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SUPREME COURT REPORTS
(1983) 2 s.c.R
Class I. Rules 3 and 4 have provided the cornerstone for all coh·
tentions canvassed in this appeal and· may be extracted :
"3. The service (other than the Architect's Service
and the Barrack and Stores_ Service) shall be recruited by
the following methods ;
(i) By competitive examination held in India in accor·
dance with part II of these Rules,
(ii) By promotion in accordance with Part Ill of these
Rules.
4. Subject_ to the provisions of Rule 3, Government
shall 4etermine the method or .methods to be employed
for the P!1rpose of filling any particular vacancies or such
vacancies as may require to be filled during any particular
period, and the number of candidates to be recruited by
each method provided that not more than 10 per cent,
of the vacancies in the service (not being vacancies filled
by prom.otion from · one grade to another within the
service) shall be filled by the method specified in clause
(ii) of Rule 3 above.
The recruitment was to be from two sources: (i) direct recruit·
ment by competitive examination; and (ii) by promotion in accor·
dance with Part III of the Rules. Rule 4 'confers discretion on the
Government circumscribed by the provision of Rule 3 enabling the
Government to determine the method or methods to be employed
for the purpose of filling in particular vacancies or such vacancies
as may be required to be filled during any particular period, and the
number of candidates to be recruited by each method. There is a
proviso to. Rule 4 and it is the subject matter of acrimonious debate
in the Court. One submission of Mr. P. R. Mridul, learned counsel
for direct recruits was that the proviso is the proviso to sub-rule (ii)
of Rule 3, and it fixes the (juota of 9· to I between direc_t recruits and
promotees. At the other end of the spectrum, the submission was
that it merely provides a ceiling and not an inviolable quota rule.
We would·examine both the submissions a little while after. Part
II of the Rules makes detailed provision for the competitive exami·
nation to be held in India for selecting direct recruits. Rule 21 to
7? ip. Part I!! oft~e 1949 Rules, pres9ribe qnalijicatjon !lllcl method
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"· J/\N/\RDHANA v. UNION (Desai, J.)
947
for recruitment by promotion. One worth noticing is Rule 23 which
prescribes that no individual shall be eligible for promotion to the
service unless, he would, but for age, be qualified for admission to
the competitive examination under Part II. This would mean that
.except for age all other qualifications incl.uding educational quali·
fication for direct recruits and promotees are the same. There are
5 Appendices to 1949 Rules. Pata 3 in Appendix V provides for
inter se seniority between direct recruits and promotees. Sub para.
(iii) of para 3 is relevant and may be extr.acted :
"(iii) · A roster shall be maintained indicating the order in
which appointments are to be made by recruitment
and promotion in accordl\nce with the percentages
fixed for each method of recruitment in the recruit·
ment rules. The relative seniodty of promotees and
direct recruits shall be determined by the dates on
which the vaca.ncies reserved for the direct recruits
and the promotees occur ...... "
Though the 1949 Rules were published on September 17, 1949, they
were brought into operation by a notification of the Ministry of
Defence dated July 29, f950 with effect from April !st, 1951. 1949
Rules when enacted were admittedly non-statutory in character.
By the notification dated July 18, 1953 of the Ministry of
Defence, the Rules styled as Military Engineer Service Class I
Recruitment Rules were promulgated. Rules 3 and 4 are in pari
materia with Rules 3 and 4 of the 1949 Rules. Part II of the Rules
makes detailed provision for the competitive examination and the
Rules in Part'llI deal with appointment by promotion. It was not
made clear ;hether tlie 1953 Rules superseded the 1949 Rules. They
are almost identical save and except for a provision in Appendix V.
Para 3 in Appendix V of 1949 Rules provided for inter se seniority
of direct recruits and promotees, while para 3 in Appendix V of
1953 Rules recited_ that 'the principles for determining seniority are
under consideration.' It is, therefore, ·suggested that para 3 in
Appendix V of 1949 Rules was abrogated and fresh principles for
determining seniority were yet to be devised. The contention arising
from these two . sets of Rules occupying the same field would in
course of ti~e become worst confounde\l. hr what has l?tien <lone in
1969 but that would come later on,
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948
SUPREJdE COURT REPORTS
[1983) 2 S.C.R.
Moving to the next stage, the Ministry of Defence by its noti•
fication dated January 7, 1961 promulgated statutory Rules enacted
in exercise of the power conferred by the proviso to Article 309:
These Rules were to regulate the recruitment to the Military Engineer
Services, Class I, (1961 Rules for short). These Rules largely relate
to the method to be adopted for direct recruitment, the manner of
holding examination and the persons eligible for entrance to the
examination. In a way 1961 Rules left rules 3 and 4 of 1949. Rules
and rules 3 and 4 of 1953 untouched, except to the extent provided
in para 8 of appendix IV wherein it is stated that promotions to
the Superior and Administrative posts are dependent on. occurrence
of vacancies in the sanctioned establishment and are made wholly
by selection in consultation With the Departmental Promotion
Committee and Commission as laid down in the Home Department
office memorandum No. 33/46-Ests(R) dated June 17th, 1946; mere
seniority is considered to confer no claim to promotion. Though
these Rules are styled as Rules for recruitment to Military Engineer
Services, Class I, omits any reference to recruitment by promotion
is wholly absent yet Rule 3 in Appendix IV restated the position
that the principles for determining seniority are under consideration.
1961 Rules do not even refer tO 1949 Rules, but it may be mentioned
that 1961 Rules were superseded by 1962 rules.
In 1962, the Ministry of Defence by its notification dated April
27, 1962 in exercise of the power conferred by the proviso to Article
309 framed Rules regulating the recruitment to the Military Engineer
Services Class I in super£ession of 1961 Rules.
Both the 1961 and
1962 Rules neither refer to Rule 3 and Rule 4 of 1949 Rules permitting recruitment by promotion and the permissible limit of recruitment by pron:iotion.
1962 Rules restated in Rule 3 in Appendix IV
lhat the principles for determining seniority are under consideration.
i'urther para 8 in Appendix IV was repeated at the .same place as in
1961 Rules.
'By the notification of Ministry of Defence dated April 17,
1965 Rule 7 of 1962 Rules was amended. But it has no relevance
to the point under consideration. Then comes a noteworthy provision.
Rule 3 in Appendix IV of 1962 Rules which provided that
'the principles for determining seniority were under. consideration'
was •ubstituted as under :
"3. Relative seniority of officers appointed· to. service on
t)le basis of the combined Engineering Services
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Examination or otherwise will be determined in
accordance with the orders issued by Government
from time to time."
By the notification of the Ministry of Defence dated February
18, 1967, a further amendment was introduced in 1962 Rules with
with regard to the eligibility of persons who can offer themselves as
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·candidates for the competitive examination.
By the Ministry of Defence notification dated February. 25,
1967, non•statutory in character sub-rule (h) was added to Rufe 20
in Part III of 1949 Rules providing reservation of 50% of the perma·
nent vacancies to be filled through direct recruitment after 17th May,
1963 of graduate engineers who are commissioned in the Armed
Forces on a temporary basis during the· Emergency and are later
released subject to certain conditions therein prescribed.
Then comes the land·mark change of 1969. On February I,
1969, the President in exercise of the power conferred by the proviso to Article 309 framed and promulgated amendmenis to 1949
Rules styled as Military Engineer Service Class I (Recruitment,
Promotion and Seniority) Amendment Rules, 1969 which came into
force on February I, 1969. Rule 4 was amended by substituting
· '25% of the vacancies' in place of' 10% of the vacancies.' In other
words, the quota between direct recruits and promotees was modified from 9:1 to 3:1.
We may at this stage notice Army Instruction 241 of 1950.
It provided for seniority of civilian employees in lower cadre. . The
instruction refers to the order contained in para 2 of the Ministry
of Defence Office Memorandum No. 0240/6362/0· 12 dated !st
September 1949 which was published as an annexure to the instruction; The instruction is that the rule for determining seniority
amongst Assistants recently devised must be followed as a model.
The mod~! was that in any particular grade seniority as a general
rule, be. determined on the basis of the length of service in that grade
as well as service in an equivalent grade irrespective of whether the
letter was under the Central or Provincial Government in India or
Pakistan.
Having journeyed thto;ugh the maze of Rules, we may turn to
the primary contention raised in this appeal. Before we do so, let
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SUPIUlidll COURT tlBPoRTS
1198~12 s.c.R..
it be remembered that the appellant is a promotee to AEE in MES cl.
I of the year 1962 and by the impugned seniority list of June 14, ,-
1974, he does not find his place in the seniority list and is still in
-the surplus list to be accommodated at a future date and Mr. Sanghi
learned counsel for the appellant asserted with some vehemence
that he cannot come into the service till 1989 when it may be time
for him to retire from the service. In other words after having
rendered service in a post included in the class I, he is hangilJ$ outside the service, without finding a berth in service, whereas direct
recruits of 1976 have found their place and berth in the service.
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Thls is the situation that stares into one's face while interpreting
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the quota-rota rule and its impact on the· service of an individual.
But avoiding any humanitarian approach to the problem, we shall
strictly go by the relevant rules and precedents and the impact of
the Rules on the members of the service and determine whether the
impugned seniority list is valid or not. But, having _done that we
do propose to examine and expose an extremely undesirable, unjust
and inequitable situation emerging in service jurisprudence from the
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precedents namely, that a person already rendering service as a __
promotee has to go down below a person who comes into service
decades after the· promotee enters the service and who. may be a
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schoolian, if not in embryo, when the promotee on being promoted
on account of the exigencies of service as required by the Government started rendering service.