# ANAND PARKASH SAKSENA v. UNION OF INDIA & ORS

- **Citation:** [1968] 2 S.C.R. 611
- **Court:** Supreme Court of India
- **Decided:** 1967-12-14
- **Case number:** Writ Petition No. 58 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anand-parkash-saksena-v-union-of-india-ors-4248
- **Pages:** 13

## Headnote

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[:k. N.
611
ANAND PARKASH SAKSENA
v.
UNION OF INDIA & ORS.
December 14, 1967
WANCHOO, C.J.,
R. S. BACHAWAT,
J. M. SHELAT
G. K MITTER AND c. A. VAIDIAL!NGAM, JJ.J
Indian Ad1ninistrative Service-1.A.S. Extension· tp Stat.es Schem'e-"
Ofjic,er in the junior scale of pay if .has a right to a [lost in the s~n!or
scale-All India Services (Discipline and Appeal) Rules 1955, r. 3--Filling
of posts by non-Cadre officers, if penalty--1.A.S. R~cruilment ~u!es, 1954,
r. 4(3), if bad for excessive delegation--Rerula11on of, Seniority Rules,
1954 r. 3(3)(b), Seniority of Special Recruits Regulation, 1960, regulation 3(3), if yiolative of Constitution of India, Arts. 14, 16.
The Madhya Bharat Cadre of the Indian AdminiStrative Service was
constituted in 1951 under the l.A.S. Extension to States Scheme. The
Cadre included all senior po•:s. A numbe~ of junior and trainmg posts
were provided to be held by officers rectuited to the cad.re before they
acqu~red the experience and seniority necessary to hold senior posts. . 1:he
primary source. for the initial constitution of the Cadre was the ex19Ung
incumbents of the State Service.
They were selected and included ID
three Lists.
Officers in List I were immediately appoint.ed to the Service.
Officers in List II were to be taken in the service only when found suitable
and those in List Ill were not to be absorbed in the service.
List II and
III officers were counted again& senior posts but these posts held by them
were eJtcluded from the Cadre for the period they were held by thOse
officers.
The Cadre was to be rilaintained on. a permanent basis by direct
recruitment by competitive examination and promotion of Sta!e
Civil
Service Officers and twenty-five per cent of the senior posts werei reserved
fur the latter. The Cadre continued· ¢o be govemed by the Scheme until
1954 when the I.A.S. Recruitment, Seniority Cadre and Pay Rules were
made.
Rule 9(1) of the Cadre Rules provides for appointment of non·
cadre1 officers to cadre posts, i.e. senior posts, if suitable cadre officers are
not available and ~he proviso tp the rule preserved the arrangement under
the Extension to States Scheme for the holding of cadre posts by nonCadre officers.
Under Rule 9(1) of the Recruitment Rules twenty-five
per cent of the senior posts are reserved for persons recruited under. rule
8, i.e. by promotion of substantive members of the State Civil Service and
by selection of those who hold gautted posts in connection with
!he
affairs of a State. The Special Recruitment Regulations, 1956, made
under rule 4 of the Recruitment of Rules, provides for recruitmen4 by
promotion to the Service by selection of persons serving in. connection
with the affairs of .a State.
In the matter of seniorh!y. the Regulation of
seniority Rules, giv'es a promotee from _State Civil Service the year of
allotment of the junior-most direct recruit officiating continuouslv in a
senior post earlier than the date of commencement of such officiation by
the promotee. The seniority of Special "Recruits Regulation, 1960. adopts
the furmula applicable to promotees for fixing the seniority of those recruited by promotion un~er the Special Recruitment ReguJat~ons.
'
. l)ie petitioner, a 9-irect recruit by competitivet examinaiion. was appointed to a iunior post in i!.he Service on April 2. 1952. He was originaUy
al.Jotted to the Madhya
Bharat Cadre.
which along with
the former
Vmdhya Pradesh and Madhya Pradesh
Cadres merged in the present
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SUPREME OOURT REPORTS
(1968] 2 S.C.R.
Madhya Pradesh Cadre con.stituted o.n ~ovember I, 1956.
He was not
found suitable .10 hold a sentor post 1111 Novembe~ 17, 1956, when he was
appointed to officiate in a seI1ior. po~t. At th~ ume hts appo1n1~nt to
the service there were no vacancies Jn the senior posts.
Vacancies arose
before he was appointed !o officiate in the senior post and after.
Some
of the respondents who were officers of the Madhya Bharat and the .former
Madhya Pradesh Stat·o

## Text

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611
ANAND PARKASH SAKSENA
v.
UNION OF INDIA & ORS.
December 14, 1967
WANCHOO, C.J.,
R. S. BACHAWAT,
J. M. SHELAT
G. K MITTER AND c. A. VAIDIAL!NGAM, JJ.J
Indian Ad1ninistrative Service-1.A.S. Extension· tp Stat.es Schem'e-"
Ofjic,er in the junior scale of pay if .has a right to a [lost in the s~n!or
scale-All India Services (Discipline and Appeal) Rules 1955, r. 3--Filling
of posts by non-Cadre officers, if penalty--1.A.S. R~cruilment ~u!es, 1954,
r. 4(3), if bad for excessive delegation--Rerula11on of, Seniority Rules,
1954 r. 3(3)(b), Seniority of Special Recruits Regulation, 1960, regulation 3(3), if yiolative of Constitution of India, Arts. 14, 16.
The Madhya Bharat Cadre of the Indian AdminiStrative Service was
constituted in 1951 under the l.A.S. Extension to States Scheme. The
Cadre included all senior po•:s. A numbe~ of junior and trainmg posts
were provided to be held by officers rectuited to the cad.re before they
acqu~red the experience and seniority necessary to hold senior posts. . 1:he
primary source. for the initial constitution of the Cadre was the ex19Ung
incumbents of the State Service.
They were selected and included ID
three Lists.
Officers in List I were immediately appoint.ed to the Service.
Officers in List II were to be taken in the service only when found suitable
and those in List Ill were not to be absorbed in the service.
List II and
III officers were counted again& senior posts but these posts held by them
were eJtcluded from the Cadre for the period they were held by thOse
officers.
The Cadre was to be rilaintained on. a permanent basis by direct
recruitment by competitive examination and promotion of Sta!e
Civil
Service Officers and twenty-five per cent of the senior posts werei reserved
fur the latter. The Cadre continued· ¢o be govemed by the Scheme until
1954 when the I.A.S. Recruitment, Seniority Cadre and Pay Rules were
made.
Rule 9(1) of the Cadre Rules provides for appointment of non·
cadre1 officers to cadre posts, i.e. senior posts, if suitable cadre officers are
not available and ~he proviso tp the rule preserved the arrangement under
the Extension to States Scheme for the holding of cadre posts by nonCadre officers.
Under Rule 9(1) of the Recruitment Rules twenty-five
per cent of the senior posts are reserved for persons recruited under. rule
8, i.e. by promotion of substantive members of the State Civil Service and
by selection of those who hold gautted posts in connection with
!he
affairs of a State. The Special Recruitment Regulations, 1956, made
under rule 4 of the Recruitment of Rules, provides for recruitmen4 by
promotion to the Service by selection of persons serving in. connection
with the affairs of .a State.
In the matter of seniorh!y. the Regulation of
seniority Rules, giv'es a promotee from _State Civil Service the year of
allotment of the junior-most direct recruit officiating continuouslv in a
senior post earlier than the date of commencement of such officiation by
the promotee. The seniority of Special "Recruits Regulation, 1960. adopts
the furmula applicable to promotees for fixing the seniority of those recruited by promotion un~er the Special Recruitment ReguJat~ons.
'
. l)ie petitioner, a 9-irect recruit by competitivet examinaiion. was appointed to a iunior post in i!.he Service on April 2. 1952. He was originaUy
al.Jotted to the Madhya
Bharat Cadre.
which along with
the former
Vmdhya Pradesh and Madhya Pradesh
Cadres merged in the present
L2 Stip Cl/68-9
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SUPREME OOURT REPORTS
(1968] 2 S.C.R.
Madhya Pradesh Cadre con.stituted o.n ~ovember I, 1956.
He was not
found suitable .10 hold a sentor post 1111 Novembe~ 17, 1956, when he was
appointed to officiate in a seI1ior. po~t. At th~ ume hts appo1n1~nt to
the service there were no vacancies Jn the senior posts.
Vacancies arose
before he was appointed !o officiate in the senior post and after.
Some
of the respondents who were officers of the Madhya Bharat and the .former
Madhya Pradesh Stat·o Civil Services were promoted before the 10tegration of the cadres on November l, 1956 to fill the vacancies aga1ns.t the
t\l.·enty-five per ~nt quota and several non-Cadre officers '"'ere appointed
under r. 9( I) of the Cadre Rules.
Vacancies were also filled in .by p~
motion under the Special Recruitment Regulations.
Jn chc gradallon List
puhlishcd on January I. 1966 nll the respondents \\'ere shown as senior
to t:le petitioner.
Jn a writ petition, under Art. 32 the petitioner contended t~at (i) he
had a right c.o hold a post in the senior scale of pay from April 2 .. 1952
to November. 17, 1956, 1mder the Rules and in the light of this Court'•
decision in P. C. Wadhwa v. Union of Jrrdia and th·~ filling of the vacancies
by non-Cadre officers amounted to \\'ithholding of promotion and penalty
within the meaning of r. 3 of .:he All India Service (Discipline and Appeal)
Rules, 1955: (ii) under the rules scl'cnty-fivc per cent of the total number
of senior posts was exclusively reserved for direct recruits and that in
computing the twenty-five' per cent quota offiC<>rs in Lists II and III and
spc<:ial recruits had to be included; (iii) r. 4 (3) of the Recruitment R11les
which authorised the Central Government to make regulation f\Jr special
recruilmen: was had on the ground of excessive de.~etation; (iv) r. 3(3) (b)
of the Regulation of Seniority Rule•. 1954, made unjust discrimination
between a promotee and a direct recruit in the matter ')f seniority
by
arbitrarily allotting a lower year of allotment to a promo!"" and therefore
violated Arts. 14 and 16 of the Con•titution; and (v) regulation 3(3) of
the Seniority of Special Recruits, Regulation 1960, offended Art<. 14 and
16 inasmuch as :he relevant rules and regulation•
set up
an arbitrary
double standard for a special recruit onlisted by promotion.
HELD : Dismissing 11>! petition.
(i) Tht filling of a vacancy by a n.on-Cadrc officer under r. 9 of the
Cadre Rules does not infringe any right of the Cadre officer nor does it
amount to withholding of oromo<ioii or a penalty \vithin the meaning of
r. 3 of Ali India Service (Discipline and Appeal) Rules, 1955.
A Cadre
9fficer in. the juni~r scale of pa¥ cannot claim ·a right to flll a vacancy
m the senior scale 1f he 1s not SU!table and no Cadre officer junior to him
Js promoted to fill the vacancy, The decision in Wadhlva's case is dis·
tin~uishablc. That case only decided that the reversion of a Cadre officer
\\'h1lc Cadre officers junior to him co~inued in the ~en.ior scale amounted
not only to reduction .in rank but also to withholdin~ of oromotion. Rule
6 A(2l of the Recruitment Rules in.troduced in 1965 after the decision
1n Wnd'711'a'.f case now makes explicit "'hat \\'as always imp1icr. in r 9(1)
or the Cadro Rules.
.
Jn the instant case no Cadre Officer junior ~o the petitioner was pror.ll>tcd to the C~dre post bcfo.rc his promotion on November 17.
19~6
anJ after promotion he '-''3S nc11her rcv~rtcd nor reduced in rank nC'r
,~·· 1 "
hi< promotion wi:hheld. [619 F-11: 620 E-Fl
·
P. C. Wadhwa v, U11io11 of India, [1964) 4 S.C.R. 593. distin"'1id1cd.
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A. P. SAKSENA v. UNION (Bachawat, /.)
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(ii) Seventy-five per cent of the senior posts may be filled by recruits
other than those recruited by promotion or selection under r. 8 of the
Recruitment Rules.
Special ·recruits are appo;nted against the se~e.nty-five·
per cent qtrota and rule 9(3)(b)(iv) added in 1965 makes exphc1t what
was always implicit in r. 9(1) of the Recruitment Rules. Under the Ext~n
sion to State Scheme officers in Lists II and III were: not counted against
the twenty-five per cent quota.
Rule 9(3) (b) (iii) of the Recruitment
Rules make it. clear that in computing the twenty.five per cent quota the
appoinments of office.rs in List II will be excluded. [620 G, HJ
(iii) Assuming that the doctrine of excessive delegation. of Legislative
power appli~s to rules, r. 4(3) does not suffer from the vice of excessiv~
delegation.
In making t.:he regulations under the rule the Central Government is to be guided by the exigencies of the service and the advice of
the State Governments ·and .~he Union Public Service Commission. These
authorities arc the best judges of the appropriate regulations to b·;;: made
in the matter [622 A-CJ
(iv) Rule 3(3)(b) of the Regulation of Seniority Rules is not violative
of Arts. 14 or 16 of the Constitution.
The object of the rule is to fix the
seniority of !~e prof!'lote~s who .obtained. promotioJ?- after Jong service in
the State Civil Service, 1n relation to direct recnuts.
The ·rule· attempt<;
to strike a just balance between the conflicting claims of the promotces apd
direct recruit<. [6-22 F-Gl
(v) Regulation 3(3) of the Special Recruits Seniority Regulations is
not violative of Arts. 14 and 16.
Special recruits are neither direct recruits
nor promotees. They form a distinct class. The regulai!ion.
properly
adopts the formula applicable to promotees for fixing the seniority of
.special recruits ien1isted by promotion so that in the mati!er of seniority
all officers recruited from the State Civil Services are placed on the same
footing. [623 A-CJ
ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967.
Petition under Article 32 of the Constituton of India for the
enforcement of the Fundamental Rights.
N. C. Chatterjee, A. N. Sinha, S. Balakrishrtan and K. B.
F
Rohtage, for the petitioner.
G
H
Niren De, Solicitor-General,
V. A. Seyid Muhammad and
R. H. Dhebar for R. N. Sachthey, for respondent No. 1.
B. Sen and I. N. Shroff, for respondents Nos. 2 to 18.
The Judgment of the Court was delivered by
Bachawat, J.
The petitioner is a member of the Indian Administrative Service having been appointed to a junior post thereirj
on April 2, 1952 on the basis of a competitive examination held
by the Union Public Service Ct:lmmission in the year 1951. He
completed his probation on October 2, 1953. He was originally
allotted to the Madhya Bharat Cadre of the Indian Administrative
Service which along with the fonner Vindhya Pradesh and Madhya
Pradesh cadres, merged in the present Madhya Pradesh cadre of
Indian Administrative Service constituted on November 1, 1956.
614
SUPREME COURT REPORTS
968]"2 S.CR
He was appointed to officiate in a senior post on November 17,
1956.
In the gradation list published on January I, 1966, his
number is 70.
In this writ petition under Art. 32 of the Constitution he claims that (a) he had the right to hold a post in the
senior scale of pay from April 2, 1952 up to November I 7, 1956
under the relevant rules read in the light of the decision in P. C.
Wadhwa v. Unioll of India(') and that (b} he is entitled to
a
higher place in the gradation list. He asks for the issue of appropriate writs dec.aring his rights and giving
him
consequential
reliefs.
·
The Madhya Bharat cadre of the Indian Administrative Service
was constituted on June I, 1951 under the Indian Administrative
Service Extension to States Scheme.
The cadre included all
senior posts.
A number of junior and training posts were provided, to be held by officers recruited to the cadre before they
acquired the experience and seniority necessary for holding senior
posts.
The initial constitution of the cadre was made from (1)
the existing incumbents and (2) emergency recruits. The existing
incumbents were considued to be the first and primary source of
recruitment. They were selected by a Special Recruitment Board
and divided in three lists. Officers in List I were considered fit for
immediate appointment to the Service.
Officers in List II were
to continue to hold their present posts, their work was to be
watched for 5 years and were to be absorbed in the Service as
and when they were found fit.
Officers in List III were to hold
their present posts or posts of equivalent rank until they retired
but they were not to be absorbed in the Service. The posts helci
by officers in Lists II and III were excluded from the cadre for
the period during which they were held by those officers.
The
cadre was to be maintained on a permanent basiS by (a) direct
recruitment on the result of the competitive examination and (b)
promotion from amongst officers of the State Civil Service.
As
in the case of the Provincial cadres, 25 per cent of the senior
posts were earmarked for promotion of officers of the State Civil·
Service.
On June I. 1951, the number of senior posts in the Madhya
Bharat cadre was 25.
On selection by ·the Special Recruitment
Board, 6 officers were placed in List I and were appointed to the
Service from January 1, 1951. Four officers were placed in List II
and 11 officers were placed in List III and they continued to hold
their po>ts under the Extension to States Scheme,. The remai!ling
4 senior posts were held by 4 emergency recruits.
On Apnl 2
1952. there was thus no available vacancy for the petitioner in
the senior posts.
As a matter of fact, 2 direct recruits senior to
the petitioner were in the junior scale of pay.
(I) (1964) 4 S.C.R. 598.
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In September 1954, the Central Government framed the I.A.S.
Cadre Rules, 1954, I.A.S. Recruitment Rules, 1954, l.A.S. Pay
Rules, 1954 and I.A.S. Regulation of Seniority Rules, 1954 in
exercise of its powers under s. 3 ( 1) of the All India Services Act,
1951.
These rules were amended from time to time.
Under
r. 2(a) of the Cadre Rules, a cadre officer means a member of the
Indian Administrative Service.
Under r. 2(b), a cadre post
means a senior cadre post under the State Government.
Under
r. 3, an I.A.S. cadre is constituted for each State or group of
States.
Under r. 4, the strength and composition of each cadre
is determined by regulations made by the Central Government.
Rule 8 provides that "Save as otherwise provided in these rules,
every cadre post shall be filled by a cadre officer."
Rule 9 (1)
provides that "A cadce post in a State may be filled by a perso11
who is not a cadre officer if the State Government is satisfied (a)
that the vacancy is not likely to last for more than three months;
or (b) that there is no suitable cadre officer available for filling
the vacancy." If a person other than a cadre officer is appointed
to a cadre post for a period exceeding three months, the fact shall
be reported to the Central Government who may, on receipt of
the report, direct the State Government to terminate his appointment and if he is likely to fill a cadre post for a period exceeding
six months, the Central Government must seek the advice of the
Union Public Service Commission and in the light of its advice.
give suitab1e direc'.ions to the State Govercme1t. It was provided
that r. 9 would not affect the existing arrangements made by the
Central Government in connection with the Governments of Part
B States and the State of Vindhya Pradesh at the time of the initial
constitution of the cadre for certain cadre posts to be fiUed by
non-cadre officers.
Rule 3 of the I.A.S. Recruitment Rules. 1954 gives the constitution of the se·vice.
Rule 4 specifies the methods of recruitment.
Sub-rule (1) of r. 4, as amended, provides that "Recruitment to the :'.crvice, after the commencement of these rules, shall
be by the following methods, namely:
(a)
by
a competitive
examination; (aa) by selection of persons from among released
Emergency Commissioned Officers and Short Service Commissioned Officers, commissioned in the Armed Forces of the Union
after the 1st November, 1962; (b) by promotion of substanfve
members of a State Civil Service; ( c) by selection.
in special
cases from among persons, who hold in a substantive capacity
gazetted posts in connection with the affairs of a State and who
are not members of a State Civil Service."
Sub-rule (3) of r. 4
provides that "Notwithstanding a'lything contained in sub-rule
( 1), if in the opinion of the Central Government the exigencies of
the service so require, the Central Government may, after consultation with the State Governments and th.e Commission. adopt
616
SUPREME COURT REPOl.TS
[1968] 2 s.c.R.
such methods of recruitment to the Service other .than those specified in the said sub-rules as it may by regulations made in this
behalf prescribe."
Rule 6 provides that no appointment to the
Service shall be made except after recruitment by one of the
methods specified by r. 4
Rules 6A(2) introduced with effect
from September 24, 1966 after rhe decision in P. C.
Wadhiva·s
case( 1 ) provides thar "A direct recruit in the junior time-scale
of pay shall be appointed to a post in the senior time-scale of
pay if, having regard
to his
length
of service,
experience.
and
pcrfo~ancc
in
the
junior
time·scale
of pay,
the State Government is satisfied that he is suitable for
appointment to a post in the senior time-scale of pay." Rules 7.
7A, 8(1) and 8(2) deal with the four methods of recruitment
specified in r. 4 and empowers the Central Government to make
appropriate regular ions.
Ruic 8 (I) deals with recrutimcnt
by
promotion of substantive members of the Slale Civil Service. Ruic
8 (2) deals with recruitment by selection in special cases from
amongst persons who hold, in a substantive capacity,
gazetted
posts in connection with !he affairs of the State and who are no:
members of the State Civil Service.
Ru!e 9(1), as amended, pro
vides inter a/ia that "rhe n•1mber of persons recruited under rule 8
in any State or group of States shall not, at any time, exceed 25
per cent of the number of' senior posts in relation to that State or
group of States.
Rule 9(3) (b) provides that "for the purpose
of determining the percentage specified in sub-rule (1 )(b) the
following category of officers shall be excluded namely:-
(i)
officers of a Stale Civil Service appointed to the Service under the
Emergency Recruitment Scheme otherwise than against the 25
per cent quota; (iii) officers of a State Civil Service ap]JOinted to
the Service from List II, prepared by the Special Recruitment
Board under the Indian Administrative Service (Extension to
States) Schemes; (iv) officers of a State Civil Service appointed to
the Service under the Indian Adminis•ra•ive Service (Special Recruitment) Regulations, 1956." Rule 9(3)(b)(iv) was added on
October 15, 1965.
The I.A.S. (Special Recruitment)
Re~ulations, 1956 were
made under r. 4 ( 3) of the Recruitmen! Rules. Regulation 3 provides that special recruitment will be made (a) by direct recruitment by selection and (b) by p•omotion to the Service by selection of per.;ons serving in connection with the atlair.; of the State.
Regulations 8 and 9 adopt for the purposes of special recruitment
the regulations for appointment by competitive examination, promotion and selection made under ru'es 7, 8(1) and 8(2) of the
Recruitment Rules with appropriate modifications.
Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of pay
admissible to the m~bers of the Service.
The junior scale is
(1)(196414 S.C.R. ~98.
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617
Rs. 400-400,500-40-700-EB-1000 (18 years). The senior scale
is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800 (22
years).
The selection grade is Rs. 1800-100-2000.
Rule 4(1)
provides that the initial pay of a direct recruit shall be fixed at
the minimum of the junior time-scale.
Rule 4(2) provides that
the pay of a member of the Service in the junior time-scale shall
on appointment to a post on the senior time-scale, be fixed at the
corresponding stage of the senior time-scale as shown in Sch_. 1.
The two scales of pay are given in Sch. 1 in parallel columns
against the years of service. The increments, withholding of increments and grant of advance increments are regulated by rules 5,
6 and 7.
Rule 3(1) of I.A.S.
(Regulation of Seniority) Rules, 1954
provides that every officer shall be assigned a year of allotment.
Rule 3 (3 )(a) provides inter alia that the year of allotment of an
officer appointed to the Service after the commencement of the1e
rules, shall be-where the officer is appointed to the Service on the
results of a competitive examination, the year following the year
in which such examination was held."
Rule 3 ( 3 )(b) provides
that the year of allotment of an officer shall be "where the officer
is appointed to the Service by promotion in accordance with subrule (l) of rule 8 of the Recruitment Rules, the year of allotment
of the junior-most among the officers recruited to the Service in
accordance with rule 7 of those rules who officiated continuously
in a senior post from a date earlier thaa the date of commencement
of such officiation by the former." The proviso tor. 3(3)(b) Jays
down that "the year of allotment of an officer appointed to the
Service in accordance with sub-rule ( 1) of rule 8 of the Recruitment Rules who started officiating continuously in a senior post
from a date earlier than the date on which any of the officer recruited to the Service in accordance with rule 7 of those Rules so
started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned."
Rule 5A authorises the making of regulations for fixing the
seniority of special recruits.
Rule 6 provides for preparation of
a gradation list of all officers borne on the cadre arranged in
order of seniority.
Regulation 3 of the l.A.S. (Seniority of Special Recruits)
Regulation, 1960 made under r. 5A of the Re~ulation of Seniority Rules fixes
the seniority
of special recruits.
Rule 3(3)
provides that "In the case of officers recruited by promotion from
the State Civil Service under clause (b) of regulation
3 re1c'
with regulation 9 of the Indian Administrative Service (Special
Recruitment) Regulations. 1956, the year of allotment shall be
fixed in accordance with the provisions of clause (b) of sub-rule
(3) of rule 3 of the Indian Administrative Service (Regulation
of Seniority) Rules, 1954."
618
SUPREME COURT REPORL
[1968) 2 S.C.R.
The relevant provisions of the parallel Cadre, Recruitment,
Pay and Regulation of Seniority Rules of the
Indian
Police
Service were considered by this Court in P. C. Wadhwa v. Union
of India('). There, the appellant was a member of the Indian
Police Service.
He joined the Service in 1952 and was confirmed in 1953.
In 1958 he was promoted to offici<!te in the senior
time-scale as Additional Superintendent of Police at Ferozepore
in place of the permanent incumbent who was on leave.
In July
1964, he was served with a charge-sheet and he submitted a
reply.
Before the enquiry started he was reverted to his
substantive rank of Assistant Superintendent of Police.
The reversjon was not due to the return of the permanent incumbent from
leave or deputation
or for any
administrative reason.
Other
officers junior to him continued to officiate in the senior scale
while he was reverted.
His personal file revealed a note by the
Senior Superintendent of Police to the effect that a regular enquiry into his conduct would take a long time and it was advisable to revert him.
He was not given any opportuntiy of showing cause a~ainst the action taken against him.
He filed a writ
petition in the Higi' Court asking for the issue of -a writ quashing
the order of reversion.
The High Court dismissed the petition.
On appeal, this Court set aside the order of the High Court and
allowed the petition.
This Court held that the reversion wa;
m~dc- in contravention of Art. 311 of the
Constitution.
The
maj< ·r''" '1c!d that the reversion was by way of punishment and
a1,..1:,·:•c.i to reduction in rank and withholding of promotion on
grounds which may be summarised thus : There is only one cadre
in the Indian Police Service.
A person in the junior time-scale
of the Service is as much a cadre officer as one holding ~ post
in the senior time-scale or a post above the time-scale.
The
transition of a member of the Service from one sca·e to another
doe; not depend upon selection or the consideration of the comparative merits of the officers in the junior scale inter se but only
upon a consideration of his seniority.
Mudholkar, J. said that
"the whole scheme of the rules indicates that a person borne on
the junio~ scale of pay has a right to hold a post on the seni~r
scale of pay depending upon the availability of a post and hts
seniority in the junior scale of pay."
The learned Judge added :
"Despite the fact that he holds a certain rank in the gradation
list persons who also belong to the Indian Police Service and
who were recruited to it sub~equent· to him have continued to
hold or have been appointed to hold posts carrying salary in the
senior scale.
This would itself indicate that lhe action taken
against him was by way of penalty or punishment. For, he has
not only been reduced in rank but his promotion to the senior scale
bas also been withheld."
(t) (1964) 4 S.C.R. 598.
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A. P. SAKSENA v. UNION (Bachawat, J.)
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ln this background, the petitioner says that he was deprived
of his right to hold a senior post during the period from April 2,
1952 up to November 17, 1956. We have found already that
on April 2, 1952 there was no available vacancy in the senior
post to which he should be appointed.
The Madhya Bharat Cadre
continued to be governed by the Extension to States Scheme until
September 1954 when the Cadre, Recruitment, Pay and Regulation of Seniority Rules were made.
The proviso to r. 9 of the
Cadre Rules preserved the existing arrangements under the I.A.S.
Extension to States Scheme for the holding of certain cadre posts
by-non-cadre officers.
On -rune 24, 1955, the strength of the
Madhya Bharat cadre was revised and increased to 46. Respondents Nos. 14, 15 and 16 belonged to the Madhya Bharat State
Se1vice.
Respondent No. 14 was appointed on June 24, 1955
and respondents Nos. 15 and 16 were appointed on April 25,
1956 to senior posts against vacancie~ in the 25 per cent quota.
Several non-cadre officers were appointed to fill vacancies in the
senior posts under r. 9 of the Cadre Rules.
Th~ petitioner was
i:tot found suitab!e to fill a vacancy in a senior post until November 17, 1956.
The petitioner coniends that ( l) he had the absolute right to
be appointed to a vacancy in the senior posts on and after April
2, 1952, (2) the filling of the vacancies by non-cadre officers on
the ground that he was not suitable was an infringement of his
right and amounted to withholding of promotion and a penalty
within the meaning of r. 3 of the All India Services (Discipline
and Appeal) Rules, 1955, (3) 75 per cent of the total number
of senior posts was reserved exclusively for direct recruits and
( 4) in computing the 25 per cent quota under r. 9 ( 1 ) of the
Recruitment Rules officers in Lists II and III and special recruits
should be included. These contentions must be rejected.
Vis a vis ancither cadre officer junior to him, a cadre officer
in the junior scale of pay has the right of promotion to a post in
the senior scale on the ground of seniority.
This right is infringed if the junior cadre officer is promoted to fill a vacancy in the
senior scale, while he continues to hold a post in the junior scale
of pay.
But he cannot claim the right to fill the vacancy if he
is not suitable and no cadre officer junior to him is promoted to
fill the vacancy.
An officer in the junior scale of pay has no
right to a senior post as soon as he joins the Service.
He may be
appointed to a senior post only when he is found suitable having
regard to his length of service, experience and performance in the
junior scale 0f pay:
Rule 6A (2) of the Recru;tment Rules now
makes explicit what was always implicit in r. 9 of the Cadre Rules.
Under r. 9( 1) of the Cadre Rules, a senior cadre post may
be filled
by a non-cadre officer if there is no suitable officer
620
SUPREME COURT REPORTS
[1968] 2 S.C.R
~vailable for filling' the vacancy. Similar provision is to be found
m paragraph 3 of the memorandum regarding constitution of the
India.n .Adm.inistrative Service and paragraph 5 of the Indian Civil
Adnun1strauve Cadre Rules, 1950. The appointment of a noncadre officer to a cadre post under r. 9 (1) of the Cadre Rules :s
a temporary arrangement which may be terminated at any time
when the Gov~rnnlent finds a cadre officer suitable for filling the
vacancy.
Until the cadre officer is found suitable, a non-cadre
officer may be appointed to fill the vacancy in a post in the seruor
scale of pay.
The cadre officer has no right to fill tile vacancy
if he is not suitable.
The filling of the vacancy by a non-cadre
officer tmder r. 9 does not infringe any right of the cadre officer
nor does it amount to a withholding of promotion or a penalty
within the meanini? of r. 3 of the. All India Services (Discipline
and Appeal) Rules, 1955.
The decision in P. C. Wadh1<·u's case(') is distinguishable.
There, a cadre officer in the junior scale of pay was promoted to
officiate in a post in the senior scale of pay and was thereafter
reverted to his substantive post while other cadre officers junior
to him continued to officiate in posts in the senior scale of pay.
As against cadre officers junior to him, he had the right to hold
the post in the senbr ~cale of pay.
The reversion while cadre
officers junior to ~ · ·: continued m the senior scale amounted to
not only reduct'· . in rank but also withholding of promot!On.
This j.s all th.· J'. C. Wadhwa's case(') decided. The fact in the
present case are entirely different.
The petitioner was not suitable to fill the vacancies in the senior posts and non-cadre officers
were appointed tO fill the vacancies under r. 9 of the Cadre Rules.
No cadre officer junior to the petitioner was promoted to the cadre
post before his promotion on November 17, 1956. Nor was he
reverted after his promotion, while officers junior to him continued
to hold senior posts.
The petitioner was not reduced in rank
nor was his promotion withheld.
He had no right to fill a vacancy
in the senior posts or to draw salary in the senior scale between
April 2, 1952 and November 17, 1956.
There is no merit in the contention that 75 per cent of the
total number of senior posts is reserved exclusively for direct r&-
cruits.
Under r. 9(1) of the Recruitment Rules, the number of
persons recruited to senior posts under r. 8 of the Recruitment
Rules by promotion or by selection cannot exceed 25 per cent of
the total number of senior posts. The remaining 75 per cent of
the senior posts may be filled by other recruits. Special recruits
under r. 4 of the Recruitment Rules are appointed against the
75 per cent quota.
Their appointments are not counted against
the 25 per cent quota reserved for persons recruited under r. 8.
tt>
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Rule 9(3 )(b) (iv) now expressly provides what was already
implicit in r. 9 ( 1).
Paragraph 4(iv) oJ the I.AS. J:l.xtension to States Scheme provided that the posts held by officers included in Lists II and III
would be excluded from the cadre for the period they were held
by those officers and would revert to the cadre as and when they
ceased to be required for that purpose. The· posts held by the
officers' in List III were excluded from the cadre until they retired
and were not counted a)1:ainst the 25 per cent quota.
The posts
held by the officers in List II pending absorption in the service
were excluded from the cadre.
They were absorbed in the service
as and when they were found fit.
Rule 9(3) (b) (iii) provides
that in computing the 25 per cent quota the appointments of
officers from List II will be excluded.
·There were vacancies in the 25 per cent quota which were
filled up by promotion of respondents Nos. 14, 15 and 16 from
the Madhya Bharat State Service.
Respondems Nos. 4, 6, 11,
12, 13, 17 and 18 were from the former Maclhya Pradesh State
Service. Some of them were promoted to the Indian Administrative Service against the 25 per cent quota in the State cadres
before the integration of the cadres on November l, 1956. No
appointments were made between November 1, 1956 and November 17, 1956 when the petitioner was appointed \o officiate in a
senior post Other respondents were appointed after November
17, 1956.
None of the appointments is open to any challenge.
It is surprising that the petitioner seeks to challenge the appointments after a long lapse of time. He has not given any adequate
explanation as to the delay in filing the writ petition.
The petitioner next challenges the seniority assigned to the
respondents. In the gradation list, all the respondents are shown
u senior to him Respondents Nos. 10, 11, 12 and 13 are special
recruits and their senionty has been fixed under Regulation 3 ( 3)
of the I.A.S. (Seniority of Special Recruits) Regulation,
1960
read with r. 3 ( 3) (b) of the Regulation of Seniority Rules, 1954.
The other respondents are promotees and their seniority has been
fixed under r. 3 ( 3 )(b) of the Regulation of Seniority Rlues and
tlle proviso thereto.
The petitioner challenges the vires of r. 4 ( 3) of the Recruitment Rules under which the Central Govcrnm~,1t fran,ed •'.::
Special Recruitment Regulations.
The Recruitment Rules were
made under s. 3 of the All India Services Act, 1951. In D. S.
Garewa/ v. The State of Punjab and Another( 1 ), this Court held
that s. 3 was not bad on the ground of excessive delegation of
legislative power.
The petitioner submits that r. 4(3) of the
(I) [1939] Sapp I S.C.R.
622
SUPREME COURT REPORTS
[1968) 2 S.C.R.
Recruitment Rules is bad on the ground of excessive delegation of
legislative power.
Assuming that the doctrine of exce.55ive delegation ol legislative power applies to rules, we think that r. 4(3)
docs n?~ suffer from the vice of excessive delegation. Rule 4(3)
authorities the Central Government to make regulations for special
recruitment.
In making the regulations, the Central Government
is to be guided by the exigencies of the service and the advice of
the State Governments and the Union Public Service Commission.
These authorities are the best judges of the appropriate regulations
to be made in the matter.
In the light of their expert knowledge
they can udapt for this purpose the existing regulations for other
methods of recruitment with suitable modifications or make other
appropriate regulations having regard to the exigencies of the
service. As a matter of fact, the Special Recruitment Regulations
1960 framed under r. 4(3) have adapted for the purposes of
special recriut:nent t~~ regulations for recruitment by competitive
examination. promotion and selection with appropriate modifications.
The petitioner next contends that r. 3 ( 3) ( b) of the Regulation of Seniority Rules makes unjust discrimination between a
promotec and a direct recruit in the matter of seniority by arbitrarily assigning a lower year of allotment to a promotee and is
violative of Arts: 14 and 16 of the Constitution.
This contention
is devoid of merit.
The seniority of direct recruits inter se and
promotees inter se is fixed by r. 4.
The object of r. 3(3) (b) is
to fix the seniority of the promotees in relation to direct recruits.
The promotees obtain promotion after long service in the State
Civil Services.
From the point of view of 1he
promotee, his
seniority should be counted from the date of his joining the State
Civil Service. From the ]XJint of view of the direct recruit the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Ru!~ 3 (3 )(b) attempts
to strike a just balance between the conflicting claims. It gives
the promotee the year of allotinent of the junior-most direct recruit
officiating continuously in a senior post earlier than the date of
commencement of such officiation by the promotee. If no direct
r~cruit was of!lciating continuously in a senior post on an earlier
date. the seniority of the promote'' ,., :!. '·~rmincd ad hoc.
lo our
opinion. the rule ic; ill'~ :1rJ-..:; :·,~:-y ::-.r d1-..crin1inatory and is not violative of Arts. 14 and ! G of the C<>~'titution.
The periti•>· <r next chalicnges the validity of Regulation 3(3)
of the Special Recruitment Scnio•ity Regulatt0ns, 1960 on the
ground that it offends Arts. 14 and 16 of the Constitution.
According to the petitioner. the relevant rules and regulations have
set up an arbitrary double stan~ard for a special reci:uit enlist~
by promotion because Regulation 3(3) of the Specrnl RecruitA
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A. P. SAKSENA v. UNION (Bachawat, /.)
623
A
ment Seniority Regulations read with r. 3 ( 3) (b) of the Regulation
of Seniorit)' Rules treats him as a promotee for the purpose of
seniority while r. 9(3) (b) (iv) of the Recruitment Rules treats
him as a direct recruit for the purpose of recruitment.
There
is no substance in this contention.
Special recruits form a distinct class. They are neither direct recruits nor promotees. Rule
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9 of the Recruitment Rules does not treat them as direct recruits.
Regulation 3 ( 3) of the Special Recruits Seniority Regulations
properly adopts the formula applicable to promotees for fixing the
semority of special recruits enlisted by promotion, so that in the
matter of seniority all officers recruited from the State Civil
Service are placed on the same footing.
The regulation is not
C
arbitrary nor violative of Arts. 14 and 16 of the Constitution.
The seniority of the respondents was fixed in accordance wtih
Regulation 3 ( 3) of the Special Recruitment Seniority Regula·
tions, r. 3 ( 3 )(b) of the Regulation of Seniority Rules and the
proviso thereto, and is not open to any challenge.
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The writ petition is dismissed. There will be no order as to
costs.
Y.P.
Petition dismissed.