# ASHOK KUMAR SHRIVASTAVA.AND ORS v. RAM LAL AND OTHERS

- **Citation:** [2008] 1 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 2008-01-08
- **Case number:** Writ Petition No.456 of 1987
- **Bench:** Altamas Kabir, P. Sathasivam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-kumar-shrivastava-and-ors-v-ram-lal-and-others-24141
- **Pages:** 40

## Headnote

Constitution of India, 1950:
Article 320(3) proviso - Withdrawal of posts from purview
A
B
of State Public Service Commission and appointments to such C
posts by State Government - HELD: Proviso to clause (3) of
Article 320 empowers the Governor of a State to withdraw from
the purview of Public Service Commission, services and posts
in connection with affairs of the State, and to make regulations
in respect thereof- Uttar Pradesh (Sales Tax Officers GradeD
II) Service Rules, 1983:
Service Law:
Uttar Pradesh (Sales Tax Officers Grade-II) Service Rules,
1983:
E
r. 3(as amended in 1997) - "Substantive appointment" -
Trade Tax Officers Grade II - Appointed in 1987 under direct
recruits quota, by State Government thro'ugh 'Limited
Departmental Examination' after withdrawing certain posts from
purview of UP. Public Service Commission - Seniority of, visF
a-vis direct recruits appointed in 1990 pursuant to requisition
of 1985 and selection tests held in 1988 - HELD: In view of
the amendment made in r.3 in 1997 and in facts and
circumstances of the case, the officers appointed in 1987
through 'Limited Departmental Examination' must be held to G
· have been substantively appointed at the time of their initial
appointment -
Seniority list to be revised accordingly -
Constitution of India - Article 320(3), proviso - Equity
The Commissioner, Trade Tax sent various
299
H
300
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A requisitions to the U.P. Public Service Commission in the
years 1980 to 1986 for selecting candidates to fill up the
vacancies of Trade Tax Officers Grade II in the U.P. Trade
Tax Department, under the direct recruits quota, but latter
could not meet the demand. Since the work of assessment
B and collection of revenue was being hampered seriously,
the Cabinet approved Department's proposal to withdraw
97 posts of Trade Tax Officer Grade II of direct recruits
from the purview of the Public Service Commission, and
to conduct a 'Limited Departmental Examination' to fill up
c the said posts. Accordingly, the Commissioner, Trade Tax
invited applications from amongst the permanent
employees in Grade 'C' to fill up the said 97 posts under
the direct recruits quota. This was challenged in a Writ
Petition No.456 of 1987 before the High Court which
0 passed an interim order. to the effect that the Department
would make ad hoc appointments in the vacant posts of
Sales Tax Officer Grade-II. Consequently, the candidates
selected through the 'Limited Departmental Examination'
were given appointment 1.etters on 26.8.1987 containing
the condition that their appointment was ad hoc and would
E be subject to the result in the writ petitions pending before
the High Court. Another writ petition was filed, which came
to be known as Zaki Khan's case, challenging the
Government Order withdrawing the 97 posts from the
purview of the Public Service Commission. The said writ
F petition was dismissed on 19.5.1996 by the High Court
upholding the decision of the State Government. The
S.L.P. filed thereagainst was also dismissed by the
Supreme Court.
G
In view of the decision in Zaki Khan's case, Writ
Petition No.456 of 1987 was also dismissed. Meanwhile,
on 28.10.1995, the Government proposed to regularize the
services of the candidates appointed through the 'Limited
Departmental Examination' in 1987 and amended the
definition of "substantive appointment" in the Uttar
H
I ..
'
i ....
(
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
301
RAM LAL AND OTHERS
Pradesh (Sales Tax Officers Grade-II) Service Rules, 1983 A
to include therein the appointments made in 1987 through
the 'Limited Departmental Examination'. The amendment
was challenged in a writ petition. Further writ petitions
were filed by the direct recruits selected pursuant to the
1985 requisition and appointed between 1990 and 1996 B
as also by the candidates selected in 1987 through the
'Limited Departmental Examination' claiming seniority over
each other. Ultimately, on the directions of the Supreme
Court, all

## Text

_Characters 0–39,488 of 82,355. This is a partial read: ask again with offset=39488 for what follows._

[2008] 1 S.C.R. 299
ASHOK KUMAR SHRIVASTAVA.AND ORS.
v.
RAM LAL AND OTHERS
(C.A. No. 4968 of 2007)
JANUARY 8, 2008
(ALTAMAS KABIR AND P. SATHASIVAM, JJ.)
Constitution of India, 1950:
Article 320(3) proviso - Withdrawal of posts from purview
A
B
of State Public Service Commission and appointments to such C
posts by State Government - HELD: Proviso to clause (3) of
Article 320 empowers the Governor of a State to withdraw from
the purview of Public Service Commission, services and posts
in connection with affairs of the State, and to make regulations
in respect thereof- Uttar Pradesh (Sales Tax Officers GradeD
II) Service Rules, 1983:
Service Law:
Uttar Pradesh (Sales Tax Officers Grade-II) Service Rules,
1983:
E
r. 3(as amended in 1997) - "Substantive appointment" -
Trade Tax Officers Grade II - Appointed in 1987 under direct
recruits quota, by State Government thro'ugh 'Limited
Departmental Examination' after withdrawing certain posts from
purview of UP. Public Service Commission - Seniority of, visF
a-vis direct recruits appointed in 1990 pursuant to requisition
of 1985 and selection tests held in 1988 - HELD: In view of
the amendment made in r.3 in 1997 and in facts and
circumstances of the case, the officers appointed in 1987
through 'Limited Departmental Examination' must be held to G
· have been substantively appointed at the time of their initial
appointment -
Seniority list to be revised accordingly -
Constitution of India - Article 320(3), proviso - Equity
The Commissioner, Trade Tax sent various
299
H
300
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A requisitions to the U.P. Public Service Commission in the
years 1980 to 1986 for selecting candidates to fill up the
vacancies of Trade Tax Officers Grade II in the U.P. Trade
Tax Department, under the direct recruits quota, but latter
could not meet the demand. Since the work of assessment
B and collection of revenue was being hampered seriously,
the Cabinet approved Department's proposal to withdraw
97 posts of Trade Tax Officer Grade II of direct recruits
from the purview of the Public Service Commission, and
to conduct a 'Limited Departmental Examination' to fill up
c the said posts. Accordingly, the Commissioner, Trade Tax
invited applications from amongst the permanent
employees in Grade 'C' to fill up the said 97 posts under
the direct recruits quota. This was challenged in a Writ
Petition No.456 of 1987 before the High Court which
0 passed an interim order. to the effect that the Department
would make ad hoc appointments in the vacant posts of
Sales Tax Officer Grade-II. Consequently, the candidates
selected through the 'Limited Departmental Examination'
were given appointment 1.etters on 26.8.1987 containing
the condition that their appointment was ad hoc and would
E be subject to the result in the writ petitions pending before
the High Court. Another writ petition was filed, which came
to be known as Zaki Khan's case, challenging the
Government Order withdrawing the 97 posts from the
purview of the Public Service Commission. The said writ
F petition was dismissed on 19.5.1996 by the High Court
upholding the decision of the State Government. The
S.L.P. filed thereagainst was also dismissed by the
Supreme Court.
G
In view of the decision in Zaki Khan's case, Writ
Petition No.456 of 1987 was also dismissed. Meanwhile,
on 28.10.1995, the Government proposed to regularize the
services of the candidates appointed through the 'Limited
Departmental Examination' in 1987 and amended the
definition of "substantive appointment" in the Uttar
H
I ..
'
i ....
(
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
301
RAM LAL AND OTHERS
Pradesh (Sales Tax Officers Grade-II) Service Rules, 1983 A
to include therein the appointments made in 1987 through
the 'Limited Departmental Examination'. The amendment
was challenged in a writ petition. Further writ petitions
were filed by the direct recruits selected pursuant to the
1985 requisition and appointed between 1990 and 1996 B
as also by the candidates selected in 1987 through the
'Limited Departmental Examination' claiming seniority over
each other. Ultimately, on the directions of the Supreme
Court, all the writ petitions were placed for hearing before
a Special Bench of the High Court. During the pendency C
of the writ petitions, the State Government regularized the
services of the candidates appointed through the 'Limited
Departmental Examination' w.e.f. 25.9.1997. The High
Court disposed of the writ petitions holding that the
appointments made in 1987 through the 'Limited 0
Departmental Examination' were ad hoc and such
candidates could claim seniority only from 25.9.1997
when their services stood regularized, and that the
directly recruited candidates of 1985 batch appointed in
1990 be placed above them. The said decision vvas
challenged in the instant appeals.
E
On the pleadings of the parties, the questions which
arose for consideration before the Court were: (i) whether
the State Government was entitled to withdraw from the
purview of the U.P. Public Service Commission, the 97
F
posts which were to be filled up by direct recruitment? (ii)
whether the 97 posts which were withdrawn from the
purview of the Commission would continue to be
governed by the recruitment process for direct recruits
as contained in the Uttar Pradesh (Sales Tax Officers
Grade II) Service Rules, 1983 ?; and (iii) whether having G
regard to the condition contained in th.e appointment
letters of candidates appointed in 1987 through the
'Limited Departmental Examination' that their
appointments were being made on purely ad hoc basis,
they could claim seniority on the basis of the service H
302
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A rendered by them from 1987 to 25.9.1997 when pursuant
\;
to an amendment of the Service Rules their services were
regularised?
Disposing of the appeals, the Court
B
HELD: 1.1 The High Court in the judgment under
appeal has rightly held that validity of the State action in
withdrawing 97 posts from the purview of the U.P. Public
•
Service Commission was upheld in the Zaki Khan's case
..
and that the right of the State Government to fill up the
c said posts in accordance with the norms laid down by it
was also upheld. The said findings of the High Court, by
virtue of dismissal of SLP thereagainst, having become
final, were not capable of being questioned in similar
proceedings either before the High Court or this Court.
D [para 65] [328-E, F]
1.2 It is clear that the proviso to clause (3) of Article
320 of the Constitution of India empowers the Governor
• •
of a State to withdraw from the purview of the Public
Service Commission, services and posts in connection
E with the affairs of a State and to make regulations in
respect thereof. [para 67] [328-G, 329-A]
1.3 In the instant case, the State Government, after
the Public Service Commission expressed its inability to
F
fill up the vacancies for various reasons indicated by it,
'
and also on account of the fact that the collection of
"
1
revenue was being seriously hampered, took steps to
withdraw 97 posts from the purview of the Commission,
and to fill up the same by a 'Limited Departmental
Examination'. Besides, the posts which were vacant in
G 1984 were advertised by the Commission in 1985 and
the selection tests were held only in 1988, pursuant to
' ,. '
which recommendations were made in 1990. [para 68]
[329-A, B, C, D, E]
....____
H
2.1 However, the High Court in the judgment under
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
303
RAM LAL AND OTHERS
~ :,''
appeal erred in holding that although the 97 posts had A
been taken out of the purview of the Public Service
Commission, the recruitment to the said posts would
continue to be governed by the U.P. (Sales Tax Officers
Grade-II) Rules, 1983 and, that the appointment of the
candidates to fill up the said 97 posts by a Limited B
Departmental Examination could only be an ad hoc
·,i
arrangement to tide over the period within which regular
t
candidates could be recommended by the Public Service
Commission. [para 69] [329-F, G]
2.2 The very fact that the 97 posts were taken out of c
the purview of the Public Service Commission indicates
that the recruitment in respect thereof was not required
to be in conformity with the recruitment rules followed by
the said Commission but in accordance with the norms
s
and regulations as might be prescribed by the State D
'
~
Government in that behalf. The decision was taken at the
~
Cabinet level to fill up the sa.id 97 posts by a 'Limited
Departmental Examination'. There was, therefore, no
foundation that appointment to the 97 posts were only
'
meant to fill up a temporary need and were not intended E
to be substantive in nature. [para 70] [330-A, B, CJ
2.3 It is well-established that in the absence of specific
rules for recruitment, guidelines framed by the Executive
.i
authorities and directions given from time to time in aid
•
thereof would be applicable to such recruitment. Having F
'
once exercised powers under the proviso to clause (3) of
'
Article 320 of the Constitution and having withdrawn the
*
97 posts from the purview of the Public Service
Commission, the Government was also free to take steps
for recruitment in the said posts and to prescribe G
... j·
guidelines for such recruitment. [para 75] [332-D, E, F]
,...,
3.1 It is no doubt true that in the appointment letters
issued to the candidates through the selected 'Limited
Departmental Examination', it was indicated that the H
304
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A appointments were purely of an ad hoc nature, but such
a condition came to be inserted in the appointment letters
on account of an interim order passed by the High Court
in a writ petition. This was also the stand initially taken by
the State Government in various writ petitions. Of course,
s such stand was subsequently altered by the State
Government, but it is clear that the change in stance came
after a decision was taken to amend Rule 3 of the 1983
Rules to regularise the services of the 1987 appointees,
on 25.9.97, the date on which the third amendment in the
C Service Rules was notified. It was also the stand of the
State Government that the appointments made in 1987
by way of the Limited Departmental Examination had been
made after following due procedure. The most important
was the Government's stand that the appointments made
on 20.6.1987 on the basis of the Limited Departmental
D Examination were of substantive nature. [para 70,77]
[330-F, G; 331-A, 334-A, B]
3.3 Subsequently, when the 1983 Service Rules were
amended in 1997, the Government also indicated that the
E amendment was made only to clarify/declare that the
appointments made under the Limited Departmental
Examination were regular and substantive and only a
declaration was made in that regard in the third
amendment and that no regularisation was at all
envisaged. In the counter affidavit it was once again
F emphasised that in the facts of the case, it was not a case
of regularisation of the services of the 1987 appointees,
as projected on behalf of the respondents in the first two
appeals, but that on the contrary it was a case where the
1987 appointees had been appointed on substantive
G basis with due procedure which had been approved in
Zaki Khan's case. It was also emphasised that the
amendment only declared what was in existence and did
not create any new right. The State Government had
considered the appointments on the 97 posts to be
H substantive in nature. As a result whereof no steps were
' ..
\
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
305
RAM LAL AND OTHERS
taken between 1987 and 1997 to regularise the A
appointments of the 1987 appointees. [para 78-80]
[334-D, E, G; 335-A, B, D, E]
3.4 It is only a fortuitous circumstance, namely,
passing of the interim order by the High Court that the 8
expression 'ad hoc' came to be mentioned in the
appointment letters of the 1987 appointees, although the
State Government had intended such appointments to be
substantive in nature. It is quite obvious that having
included the condition that the appointments were ad hoc
in nature in the appointment letters issued to the 1987 C
appointees, the State Government has now sought to
place the 1987 appointees below those who had sat for
the recruitment examination after the appointment of the
1987 appointees and were not borne in the cadre prior to
1990. [para 80, 82] [335-E, F; 336-B, C, D]
D
4.1 Notwithstanding the well-settled principle that an
employee's service is to be counted for seniority only after
he is borne in the cadre, in the facts of the instant case,
the 1987 appointees will have to be treated differently. E
Although, the State Government may have shifted its
stand to the extent that the services rendered by the 1987
appointees till 1997 could not be counted for computing
· their seniority, as their initial appointment was ad hoc in
nature, such a stand would lead to inequity in view of the.
expressed intention of the State Government in the earlier F
writ petitions. The fact remains that the 1987 appointees
were appointed on the 97 posts which were taken out of
the purview of the Public Service Commission but
continued to be in the cadre of Trade Tax Officer, Grade II.
. Having regard to Rule 3(1) of the 1983 Rules, the 1987 G
appointees must be held to have been substantively
appointed in accordance with the procedure prescribed
by the State Government. Such an appointment did not,
in any manner, derogate from their appointment in the
cadre of Trade Tax Officer, Grade II. ·[para 81-82] [335-G; H
306
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A 336-A, 8, F, G]
4.3 The respondent-authorities are directed to treat
the 1987 appointees who had been appointed on the basis
of 'Limited Departmental Examination' to have been
substantively appointed at the time of their initial
B appointment in 1987 and to revise the seniority list
pertaining to Trade Tax Officer, Grade II accordingly.
(para 86] [338-A, BJ
Sha/1 Bhojraj Kuverji Oil Mills and Ginning Factory v.
C Subbash Chandra Yograj Sinha 1962 (2) SCR 159; State of
Tamil Nadu v. Arooran Sagars Limited 1997 (1) SCC 326;
State of U.P V. Manbodhanlal Srivastava AIR 1957 SC 912;
Shitala Prasad Shukla v. State of U.P AIR 1986 SC 1859; K.
Madalai Muthu vs. State of Tamil Nadu 2006 (6) SCC 558;
M.P State Coop. Bank V. Nanuram Yadav 2007 (11) SCALE
D 439; K. Narayanan v. State of Karnataka (1994) Supp. (1)
SCC 44 ; and Direct Recruit Class-II Engineering Officers
Association Vs. State of Maharashtra and Anr. 1990 (2) SCC
715 - cited.
E
CIVIL.APPELLATE JURISDICTION : Civil Appeal No. 4968
of 2007.
From the common final Judgment and Order dated
20.9.2006 of the High Court of Judicature at Allahabad, Lucknow
Bench. Lucknow in W.P. Nos. 1041 (S/B)1996, 1295 (S/B)/1997
F and 1863 (SIB) 1998.
WITH
Civil Appeal Nos. 4969/07 and 4970 of 2007
•
Shail Kumar Dwivedi, Addi. Adv. Gen., U.P., M.N. Rao,
G Gourab Banerji, R. Venkataramani, Aseem Chandra, Anurag
Singh, T. Mahipal, SauravAgarwal,Arjun Krishan, Gautam Jha,
Gaurav Agrawal, Ruby Singh Ahuja, Raj Kumar Gupta, Manoj
Kumar Dwivedi, Vandana Mishra, G. Venkateswara Rao,
Kamlendra Misra and C. Balakrishna for the appearing parties.
H
The Judgment of the Court was deliver.ed by
• ..
\,.
'
,. '
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
307
RAM LAL AND OTHERS [KABIR, J.]
ALTAMAS KABIR, J. 1. These three appeals arise out of A
~ J
a common judgment and order dated 20.9.2006 passed by the
Lucknow Bench of the Allahabad High Court disposing of several
Writ petitions filed by the appellants in these appeals. Since
these appeals arise out of a common judgment and common
questions offact and law are involved, they have been taken up B
together for final hearing and disposal. While C.A.No. 4968/
2007, arises out ofW.P.No.1041/96, W.P.No.1295/97 and W.P.
!
No.1863/98, the other two appeals arise out of the other Writ
i
petitions disposed of by the common judgment.
~
2. In order to appreciate the issues which arise in these c
appeals it is necessary to indicate some of the facts set out in
the writ petitions.
3. At the relevant. point of time in the U.P. Trade Tax
Department there were 669 posts of Trade Tax Officers, Grade D
II. Out of the said 669 posts, about 502 posts belonged to the
Direct Recruits quota, but in 1980 only 243 of the posts had
,
been filled. The vacancy in respect of the remaining 259 posts
,,.
were the result of the slow and long drawn out process of the
U.P. Public Service Commission in conducting the U.P. E
Subordinate Service Examination.
4. During the hearing of the writ petitions it transpired that
the Commissioner, Trade Tax, had sent a requisition to the U.P.
Public Service Commission on 25.9.1980 for filling Lip 75
vacancies. Another requisition was sent on 9.12.1981 for 115
F
,.,·
posts. Against the first requisition the Public Service commission
~
sent the names of candidates only on 6.9.1982. In the meantime,
after December 1981 a further 28 vacancies arose and a
revised requisition was sent on 14.10.1982 for 143 vacancies.
A total number of 143 posts were advertised in 1985 and in G
September 1986 the said 143 candidates were made available
by the Public Service Commission.
~ ~
5. As will also appear from the records, between 19821986, further requisitions were repeatedly made by the
Commissioner, Trade Tax, requesting the Public Service
H
308
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A Commission and the Government to make available further
candidates in the direct recruits quota to fill up the remaining
<
...
. _.
vacancies. Along with the vacancies in the quota for direct
recruits there were 167 vacancies in the promotion quota also.
On 6.12.1983 the Commissioner, Trade Tax sent a requisition
B for 26 posts which was enhanced to 33 posts by a letter dated
28.8.1984. In February 1985 a reminder was sent for 176 posts,
though by that time the Public Service Commission had already
advertised for 143 posts and the Commissioner, Trade Tax was
informed in January 1986 that 143 candidates would probably
' ..
c be made available in June 1986.
6. Since apparently the work of assessment and collection
of revenue was being seriously hampered, the Commissioner,
Trade Tax, wrote to the Secretary, Institutional Finance, in
February 1986, to provide retrenched officers from other
D Departments to conduct the said work and in March 1986 the
Commissioner, Trade Tax mooted the proposal to amend the
U.P. Sales Tax Officers (Grade II) Service Rules 1983, and to
add a proviso to Rule 5(1) which would enable the Governor, in
' ....
case of an administrative necessity and in the public interest, to
E authorise the Commissioner, Trade Tax, to conduct a Limited
Departmental Examination from amongst the permanent Group
'C' employees to fill up the vacancies in Group 'B'. The said
employees would be deemed to be officers of the quota of direct
recruits and would be entitled to regular appointment as
F contemplated under the Rules.
7. The Special Secretary suggested that the proposal of
• .., ..
the Commissioner, Trade Tax, could be placed before the
Cabinet for its approval for conducting a Limited Departmental
Examination. On 11.8.1986 a detailed proposal was also sent
G by the Commissioner, Sales Tax, for holding a Limited
Departmental Examination from amongst permanent
employees of the Department.
~-- ..
8. The Special Secretary, Institutional Finance, wrote to
H
the Chairman, Public Service Commission, on 23.8.1986
>
- ., ..
)
Jr
i
--~ ---!
ASHOK KUMAR SHRIVASTAVA AND ORS. v_
309
RAM LAL AND OTHERS [KABIR, J.]
apprising him of the department's decision to hold a Limited A
Departmental Examination for which an interview would have
to be conducted by a Selection Committee where the Public
Service Commission would also be represented by a Member.
The said decision was disapproved by the Commission, but
ultimately the_ Cabinet gave its approval to the Department's B
proposal to withdraw 97 posts of direct recruits from the purview
of the Public Service Commission and to conduct a Limited
Departmental Examination for the said posts. The
Commissioner, Trade Tax, was informed of the said decision
by the Special Secretary by his letter dated 11.12.1986.
c
. 9. Pursuant to the aforesaid communication a Circular was
issued by the Commissioner, Trade Tax, on 23.12.1986 whereby
applications were invited for 97 posts from amongst the
permanent employees in Grade 'C' who had completed 7 years
of service. In the Circular the posts to be filled up were described D
as temporary posts from the direct quota which would be
conlt'.erted into permanent posts in course of time. It was also
mentioned that those who had been appointed as Trade Tax
Officers, Grade II, pursuant to the requisition sent on 11.10.1982
would be senior to the 143 candidates whose select list had
E
been made available by the Public Service Commission in
September, 1986.
·
10. The two decisions taken by the Government on
11.12.86 and 23.12.86 were challenged by one Brijendra
Bahadur Singh by way of Writ Petition No.456 of 1987. On
F
5.2.1987, while issuing notice on the said writ petition, the High
Court also passed an interim order to the effect that it would be
open to the respondents to make ad hoc appointments in the
vacant posts of Sales Tax Officer, Grade II, but no permanent
appointment was to be made in respect of 213rd of the total G
number of vacancies which were meant to be filled up directly
through the Public Service Commission under the U.P. Sales
Tax Officers Rules, 1977.
11. Consequent to the above, the State Government H
310
SUPREME COURT REPORTS
r2008J 1 s.c.R.·
A directed the Commissioner, Trade Tax, to include a condition in
the appointment orders to be issued to the persons selected
through the Limited Departmental Examination that in view of
the aforesaid order of the High Court the appointment was being
made on an ad hoc basis and would be subject to the result of
B Writ Petition No.456 of 1986. On 19.2.1987 a similar interim
order was passed by the High Court in the Writ Petition filed by
Jai Singh. Pursuant to the above direction, the persons who
were selected through the Limited Departmental Examination
were given appointment on 28.6.1987 and their appointment
c orders contained the condition that their appointment was ad
hoc and would be subject to the result of the writ petitions pending
before the High Court.
12. In 1990, one Mohd. Zaki Khan and some others filed a
Writ Petition challenging the Government Order dated
D 11.12.1986 withdrawing the 97 posts from the purview of the
Public Service Commission. The said writ petitioners were
candidates who had appeared in the written examination
conducted by the Public Service Commission pursuant to the
advertisement published in 1985, but had failed to pass the
E examination. The case of the writ petitioners in the said writ
petition was that while making a requisition for 33 posts, if 97
posts for which the Limited Departmental Examination was held
had been included in the requisition, they too would have been
selected. It was also their case that since the 97 posts had been
F filled up only on an ad hoc basis from the departmental
candidates, they would continue to be available in 1988 when
fresh examinations were held by the Public Service Commission.
A prayer was accordingly made for a Mandamus to be issued
to the Public Service Commission to fill up the said 97 posts
G also by regular candidates and since the Public Service
Commission was, in any event, conducting the U.P. Subordinate
Service Examination, the select list could be expanded to
include recommendations for the 97 posts which had been filled
up by the department on ad hoc/temporary basis.
H
13. The writ petition of Mohd. Zaki Khan and others wa:>
.
'-'
"t- --
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
311
RAM LAL AND OTHERS [KABIR, J.]
I
decided against the writ petitioners on the basis of the detailed A
l.
),)'
correspondence between the Commissioner of Trade Tax and
the Department, and between the Department and the Public
Service Commission. The High Court ultimately came to the
conclusion that the Government had valid and cogent reasons
f~>r taking out the 97 posts from the purview of the Public Service 8
Commission. It was also held that since the matter had been
decided by the Cabinet the Governor was bound to accept such
i
)
advice. It was also held that since the said posts had been validly
I
f
~
taken out from the purview of the Public Service Commission it
was not open to the court to issue a Mandamus to the Public c
Service Commission to fill up the said posts which had gone
out of the domain of the said Commission.
14. The said decision in the writ petition filed by Mohd.
Zaki was delivered on 19.5.1996. A Special Leave Petition filed
against the said decision was dismissed in limine by this Court D
on 19.9.1996.
'
15. After the decision in Mohd. Zaki's case, the writ petition
).
filed by the Brijender Bahadur Singh was also dismissed on
3.10.1996 on the. basis of the decision in Mohd. Zaki Khan's
writ petition.
E
16. In the meantime, the Commissioner, Trade Tax mooted
a proposal on 28.10.1995 to regularise the services of the
officers who had been appointed pursuant to the Limited
Departmental Examination held in 1986-87, by amending Rule
F
.)
5(1) of the Service Rules of 1983 and urged the Government to
t
effect such amendment expeditiously.
17. The said letter of 28.10.1995 written by the
Commissioner, Trade Tax, was challenged by one Ram Lal and
others by way of writ petition No.1041/1996 whereby the direct G
recruits selected pursuant to the 1985 requisition sought
.f.
~
seniority over the officers appointed on the basis of the Limited
Departmental Examination conducted in 1987.
18. The ground of challenge was that the appointment of H
312
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A those candidates who had been appointed pursuant to the
·~
-~
Limited Departmental Examination was de hors the rules and
had not been approved by the Public Service Commission.
19. Pursuant to the request of the Commissioner, Trade
B
Tax, for regularisation of the ad hoc appointments made through
the Limited Departmental Examination, the Government
effected the Third Amendment to the 1983 Rules whereby the
definition of "substantive appointment" was amended to include
'
appointments made in 1987 through the Limited Departmental
..
Examination.
c
20. The aforesaid amendment of 1997 was challenged in
writ petition No.1297 of 1997 by one Vinod Kumar Gupta on
the ground that the amendment sought to retrospectively amend
the Rules of 1983 for the purpose of regularising those
D candidates who had been appointed in 1987 through the Limited
Departmental Examination.
21. Two other officers, Shri Govardhan Lal and Shri Arvind
•
Kumar Tiwari, who had been directly recruited pursuant to the
~
result of the examination conducted by the U.P.Public Service
•
E Commission in 1990 and appointed in 1994 and 1993
respectively, filed Writ Petition No.1863 of 1998, challenging
the Government Order dated 5.6.1998 directing the
Commissioner, Trade Tax, to prepare a gradation list of officers
of the 1985 batch who had been directly recruited and appointed
-
F in 1990 and the 1987 batch who had been appointed through
\,.
the Limited Departmental Examination. The direct recruits who
>
had been appointed in 1990 claimed seniority over those who
had been appointed in 1987 by the Limited Departmental
Examination on the ground that the 1987 appointees had been
G appointed on an ad hoc basis and their officiating service could
,_
not be counted towards seniority.
22. The State Government passed an order on 22.9.2000
,...,~
directing that the seniority list of those candidates, who had either
-
been appointed directly or on the basis of the Limited
H Departmental Examination, would be deemed to be undisputed
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
313
RAM LAL AND OTHERS [KABIR, J.]
-' v
up to 198.5 in order to enable promotions to be made therefrom. A
The Commissioner, Trade Tax, thereafter passed an order to
include the candidates of the 1985 direct recruits batch, who
had been appointed in 1990, in the seniority list and though the·
order was passed on 9.10.2000 the same did not include the
names of the appointees who had been appointed in 1987 on
B
the basis of the Limited Departmental Examination.
~
.~
23. Two writ petitions, namely, Writ Petition No.1778/2000
.,
and Writ Petition No.2000/2000 were filed at Lucknow by Jugal
Kishore Pandey and Rajendra Prasad, who had both been c
appointed in 1987. Another writ petition was filed by Ashok
Kumar Shrivastava at Allahabad in which an interim order was
passed staying the operation of the Government Order dated
22.9.2000 and 9.10.2000. In the meanwhile, pursuant to an
application made under Clause 14 of the Amalgamation Order
this Court transferred Writ Petition No.2787 /2001 filed in D
Allahabad to Lucknow with a request to the Chief Justice of
.
Allahabad High Court to constitute a Special Bench to hear all
k
the writ petitions at an early date, and, if possible on a day to
day basis. The matters then came up before the Division Bench
of the Lucknow Bench of the Allahabad High Court for final
E
disposal.
24. During the pendency of the writ petitions, the State
Government passed orders regularising the services of the
candidates who had been appointed in 1987 pursuant to the
tLimited Departmental Examination with effect from 25.9.1997.
F
The State Q.overnment also informed the Commissioner, Trade
Tax, U.P., Lucknow, on 9.5.2005 that the date of substantial
appointment of the persons selected through the Limited
Departmental Examination was 25.9.1997.
25. Accepting the submissions made on behalf of the G
1 "i
candidates who had been selected pursuant to the
advertisement published in 1985 and thereafter in 1990 for direct
recruitment to the post of Trade Tax officer, Grade II, the High
Court also came to the conclusion that the appointments made H
314
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A in 1987 on the basis of the Limited Departmental Examination
. were ad hoc in nature and consequently such candidates could
claim seniority in the cadre only from 25.9.1997 when their
services stood regularised. Accordingly, even though the
candidates of the 1985 batch were appointed after the 1987
B candidates, the High Court directed that they along with the
candidates of 1990, who had been selected by the regular
selection process as contemplated under the Rules, be placed
above the 1987 appointees as their appointment stood
regulqrised only with effect from 25.9.1997, when the Third
. c Amendment to the Service Rules was effected. It is the aforesaid
decision of the High Court in the said 8 writ petitions which is
the subject matter of the three appeals being heard by us.
26. Appearing for the appellants in C.A.Nos.4968 and
4969 of 2007, filed by the officers who had been appointed
D pursuant to the Limited Departmental Examination held in 1987,
Mr. M.N. Rao, learned Senior Advocate, submitted that the
controversy forming the subject matter of the appeals involve
the validity of the amendments made to the U.P. Trade Tax
Officers, Grade II, Service Rules, 1 ~83, (hereinafter referred to
E as "1983 Service Rules') in 1987, as also the seniority given to
those officers who had been recruited pursuant to the Limited
Departmental Examination held in 1987. Mr. Rao further
contended that the appellants in Civil Appeal No. 4970/2007
were those direct recruits who had been appointed by the U.P.
F Public Service Commission in 1991 and 1994.
27. According to Mr. Rao, the aforesaid 1,ll83 Rules
contemplated recruitment to the post of Trade Tax oficer, Grade
11, through two methods. Rule 5 of the Rules provides that 75%
of the said officers are to be appointed through the Public
G Service Commission by way Of direct recruitment and upon
holding a competitive examination, whereas the remaining 25%
are to be appointed by promotion after consultation with the
Public Service Commission. However, in 1979, the State
Government was facing an acute shortage of Trade Tax Officers.
H Grade 11, which was seriously hampering the revenue collection,
, ..
.
"·
\.
1
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
315
RAM -LAL AND OTHERS [KABIR, J.]
,..
_k.~"
and this resulted in the withdrawal of 97 vacant posts of Trade A
Tax Officers, Grade II, from the purview of the Public Service·
Commission with the object of filling up the same by a Limited
Departmental Examination
28. Mr. Rao also referred to the writ petition of Mohd. Zaki
B
Khan and submitted that while dismissing the writ petition the
High Court held that the State Government was fully empowered
~-
to withdraw the 97 posts from the control of the Public;: Service
,. \
Commission. Mr. Rao submitted that the High Court had also
held that once the 97 posts had been taken 'out of the purview of c
the Public Service Commission the· State Government was free
to fill up those posts after laying down norms consistentwith the
constitutional provisions and other related laws.
29. Mr. Rao submitted that the disputes concern'ing the
appointment of the 1987 appointees through the. Limited D
Departmental Examination had been set at rest by the High
Court in Zaki Khan's case and with the dismissal of the special
•
I
'
.
*
leave petition (SLP (C) No.18183/96) preferred against the 'said
judgment of the Allahabad High Court on 19.9.1996, the finding .
with regard to the validity of the withdrawal of the said 97 posts E
of Trade Tax Officers, Grade II, attained finality and could not be
reopened.
30. Mr. Rao referred to the writ petition filed by Brijender
Bahadur Singh and others and the interim order pa~sed therein
' .
on 5.2.1987. He also referred to the w_rit petition filed by Jai F
\
Singh and others, wherein also an interim order was passed on
19.2.1987. Mr. Rao urged that the effect of the interim orders
was that the State Government was free to make appointments
from the candidates selected through the Limited Departmental
Examination, but such appointments were to be treated as ad G
hoc. As a result, in the appointment letters issued to the
; ,
appointees of 1987, it was mentioned that the appointments
were 'ad hoc'. Mr. Rao, submitted that this was the stand taken
by the State Government in the counter-affidavit filed on behalf
of the State in the said two writ petitions, which were
1-'
316
SUPREME COURT REPORTS
[2008] 1 S.C.R.
A subsequently dismissed on 3.10.1996 and 6.5.1994,
'-.
~
respectively.
31. It was then urged that in 1997 the State Government
amended the 1983 Service Rules and such amendments
B included amendment to Rule 3(j) and 3(1). By virtue of the said
amendments the definition of the term "member of the service",
mentioned in the judgment herein, was widened to include those
who had been appointed on the basis of the Limited
~
Departmental Examination. A proviso was also added to the
'
'
•
existing definition of "substantive appointment" indicating that
JJ
c persons appointed on ad hoc basis in the year 1986-87 through
the Limited Departmental Examination from Group 'C' posts
would be deemed to have been substantively appointed. It was
further urged that although it was never the intention of the State
Government to appoint those selected on the basis of the
D Limited Departmental Examination on an ad hoc basis, the said
expression had been included in the appointment letters issued
to such appointees in view of the interim orders which had been
.
passed by the High Court in the writ petitions filed by Brijendra
'*
Singh and Jai Singh, which were subsequently dismissed. Mr.
E Rao submitted that it had always been the intention of the State
Government to treat the appointments of the said candidates to
be substantive. It was only later that the State Government
changed its stand and contended that the 1987 appointees had
been substantively appointed only in 1997 from the date of
F amendment of the Rules.
\,
32. The change in the stand of the State Government was
1
thereafter challenged by Muneshwar Babu and others, who were
1987 appointees, in writ petition No.166/05 before the Allahabad
High Court. They are some of the appellants in Civil Appeal
G No.4969 /2007.
33. Mr. Rao submitted that the direct recruits, who had
f"
I
been appointed pursuant to the advertisements published in
1985 and 1990, long afte~ the 1987 appointees had been
H appointed by way of a Limited Departmental Examination, had
ASHOK KUMAR SHRIVASTAVA AND ORS. v.
317
RAM LAL AND OTHERS [KABIR, J.]
J.
>"'
no locus standi to question the seniority of the 1987 appointees A
since at that time they had not even been born in the cadre. Mr.
Rao contended that once the question involving the exclusion
of the 97 posts from the purview of the Public Service
Commission had been finally decided in Zaki Khan's case, the
direct recruits who had been subsequently appointed through B
the Public Service Comrnission had no right to challenge the
~
seniority of the 1987 appointees or to canvas a claim that the
.... ~
said 97 posts should be thrown open to the candidates who
had appeared at the examination conducted by the Public
Service Commission in 1988 pursuant to the advertisement c
published in 1985. It was submitted that the same would also
apply to the direct recruits appointed pursuant to the publication
of a similar advertisement in 1990. Mr. Rao submitted further
that since the 1987 appointees had not encroached on any post
earmarked for the direct recruits, the said direct recruits could D
have no valid grievance against the exclusion of certain posts
,
from the purview of the Public Service Commission.
1·
34. Mr. Rao urged thatthe High Court had erred in coming
to a finding that the appointment given to the 1987 appointees
was in violation of the procedure laid down in the Rules, and
E
was discriminatory for open market and senior departmental
candidates. It was also urged that the High Court had erroneously
accepted the contention of the direct recruits that the 1987
appointees had been appointed de hors the rules, and,
'
consequently, the amendment effected to the Rules in 1997 F
tcould only operate prospectively.
35. Mr. Rao submitted that the Division Bench of the High
Court had erred in taking the view that the appointment of the
1987 appointees was in violation of Rule 5 and the recruitment
procedure contemplated in the Rules. He submitted that once G
~ ..
the posts had been taken out of the purview of the Public Service
Commission, Rule 5 of the Service Rules, which prescribes the
manner of recruitment through the Public Service Commission,
was no longer applicable to such posts and the procedure
contemplated thereunder for recruitment to the post of Trade
H
318
SUPREME COURT REPORTS
[2008] 1 S.C.R.
~ '
A Tax Officer, Grade 11, and the Government was free to prescribe
the procedure to be followed for the purpose of filling up the
said posts. Mr. Rao urged that the 1983 Service Rules did not
prescribe any method for recruitment to posts which were taken
out from the purview of the Public Service Commission and, in
B fact, the definition of "substantive appointment" i_n the
unamended Rule 3 (I) takes care of such a contingency by
.i
providing that if there are no rules prescribed for such
' •
recruitment then the procedure as prescribed by executive
instructions would be valid and persons appointed through such
c a procedure would be considered to have been substantively
appointed. Mr.