# BHUPENDRA NATH HAZARIKA AND ANOTHER v. STATE OF ASSAM AND ORS

- **Citation:** [2012] 12 S.C.R. 587
- **Court:** Supreme Court of India
- **Decided:** 2012-11-30
- **Case number:** Civil Appeal Nos.8514-8515 of 2012
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhupendra-nath-hazarika-and-another-v-state-of-assam-and-ors-28271
- **Pages:** 41

## Headnote

A
B
Service Law - Seniority - Inter se seniority - Of "regular
batch''l'direct recruits" vis-a-vis "special batch"!'promotional
recruits" - Determination - Held: On facts, appointment of C
special recruits though prior to appointment of regular direct
recruits was totally de hors the statutory rules - The special
recruits encroached into the quota of the direct recruits - A
maladroit effort was made to appoint the.special recruits first
despite the recommendation of the direct recruits pending D
before the State Government and though the Cabinet had not
approved the proposal for special drive to appoint from
another source - Also, no decision was taken to relax the
seniority rules in favour of the special recruits - Concept of
deemed relaxation not attracted for conferring any privilege E
to the special recruits - Thus, their seniority vis-a-vis the direct
recruits has to be pushed down - However, regard being had
to the delayed challenge to the selection of special recruits
and their long rendering of service in the posts and further
promotions having been effected, it would be inapposite to F
quash their appointments - Assam Police Service Rules,
1966 - rr.5, 18 and 23.
Service Law - Recruitment - Illegal recruitment - Effect
- Held: When there is violation of the recruitment rules, the
recruitment is unsustainable - Whether any active part is G
played by a selectee or not, has nothing to do with the
appointment made in contravention of the rules.
Service Law - Duty of the State - Held: State is a model
587
H
588
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A employer and it is required to act fairly giving due regard and
respect to the rules framed by it - Legitimate aspirations of
the employees not to be guillotined.
The Assam Public Service Commission issued
8 advertisement inviting applications for filling up 30
vacancies in the Assc.m Police Service (APS) in the
compartment of "regular batch" or "direct recruitment".
Subsequently, the Commission published another
advertisement inviting applications for filling up of 20
posts in the APS by way of special drive, in the category
C of "special batch" or "promotional recruits". One week
after examination for the regular batch was held,
examination for the special batch too was held. The
Commission declared the result in respect of regular
batch and recommended 30 candidates for appointment
D in order of merit. Despite such recommendation, no
appointment was made in respect of the regular batch.
At this juncture, the Government requested the
Commission to furnish the select list of special recruits.
The Commission sent its recommendations on basis of
E which, 19 persons were appointed for the special batch.
F
Thereafter, the Competent Authority appointed 28
persons from the regular batch. As the recruits of the
special batch were appointed earlier, they were treated
senior to the recruits belonging to the regular batch.
Aggrieved, the direct recruits (i.e. recruits belonging
to the regular batch) invoked the jurisdiction of the
tribunal claiming to be senior to the special recruits and
praying for apposite determination of inter se seniority
G vis-a-vis the special recruits. The tribunal directed refixation of the seniority list. The o~der was upheld by the
High Court.
H
In the instant appeals, the fundamental questions
that emanated for consideration were, namely, whether
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 589
the appointments of special batch recruits had been
A
made in violation of the rules; and if yes, whether such
appointments could be treated to be de hors the rules;
and whether the concept of relaxation was extended to
them or was extendable to them and further whether they
could avail the benefit under the second proviso to Rule
B
18 of the Rules and whether the tribunal as well as the
High Court was justified in re-fixing the seniQrity without
quashing the appointment of the special batch recruits.
Dismissing the appeals, the Court
HELD: 1.1. Where recruitment of

## Text

_Characters 0–39,912 of 79,742. This is a partial read: ask again with offset=39912 for what follows._

[2012] 12 S.C.R. 587
BHUPENDRA NATH HAZARIKA AND ANOTHER
v.
STATE OF ASSAM AND ORS.
(Civil Appeal Nos.8514-8515 of 2012)
NOVEMBER 30, 2012
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
A
B
Service Law - Seniority - Inter se seniority - Of "regular
batch''l'direct recruits" vis-a-vis "special batch"!'promotional
recruits" - Determination - Held: On facts, appointment of C
special recruits though prior to appointment of regular direct
recruits was totally de hors the statutory rules - The special
recruits encroached into the quota of the direct recruits - A
maladroit effort was made to appoint the.special recruits first
despite the recommendation of the direct recruits pending D
before the State Government and though the Cabinet had not
approved the proposal for special drive to appoint from
another source - Also, no decision was taken to relax the
seniority rules in favour of the special recruits - Concept of
deemed relaxation not attracted for conferring any privilege E
to the special recruits - Thus, their seniority vis-a-vis the direct
recruits has to be pushed down - However, regard being had
to the delayed challenge to the selection of special recruits
and their long rendering of service in the posts and further
promotions having been effected, it would be inapposite to F
quash their appointments - Assam Police Service Rules,
1966 - rr.5, 18 and 23.
Service Law - Recruitment - Illegal recruitment - Effect
- Held: When there is violation of the recruitment rules, the
recruitment is unsustainable - Whether any active part is G
played by a selectee or not, has nothing to do with the
appointment made in contravention of the rules.
Service Law - Duty of the State - Held: State is a model
587
H
588
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A employer and it is required to act fairly giving due regard and
respect to the rules framed by it - Legitimate aspirations of
the employees not to be guillotined.
The Assam Public Service Commission issued
8 advertisement inviting applications for filling up 30
vacancies in the Assc.m Police Service (APS) in the
compartment of "regular batch" or "direct recruitment".
Subsequently, the Commission published another
advertisement inviting applications for filling up of 20
posts in the APS by way of special drive, in the category
C of "special batch" or "promotional recruits". One week
after examination for the regular batch was held,
examination for the special batch too was held. The
Commission declared the result in respect of regular
batch and recommended 30 candidates for appointment
D in order of merit. Despite such recommendation, no
appointment was made in respect of the regular batch.
At this juncture, the Government requested the
Commission to furnish the select list of special recruits.
The Commission sent its recommendations on basis of
E which, 19 persons were appointed for the special batch.
F
Thereafter, the Competent Authority appointed 28
persons from the regular batch. As the recruits of the
special batch were appointed earlier, they were treated
senior to the recruits belonging to the regular batch.
Aggrieved, the direct recruits (i.e. recruits belonging
to the regular batch) invoked the jurisdiction of the
tribunal claiming to be senior to the special recruits and
praying for apposite determination of inter se seniority
G vis-a-vis the special recruits. The tribunal directed refixation of the seniority list. The o~der was upheld by the
High Court.
H
In the instant appeals, the fundamental questions
that emanated for consideration were, namely, whether
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 589
the appointments of special batch recruits had been
A
made in violation of the rules; and if yes, whether such
appointments could be treated to be de hors the rules;
and whether the concept of relaxation was extended to
them or was extendable to them and further whether they
could avail the benefit under the second proviso to Rule
B
18 of the Rules and whether the tribunal as well as the
High Court was justified in re-fixing the seniQrity without
quashing the appointment of the special batch recruits.
Dismissing the appeals, the Court
HELD: 1.1. Where recruitment of service is regulated
by the statutory rules, the recruitment must be made in
accordance with those rules and if any appointment is
made in breach of the rules, the same would be illegal and
c
the persons so appointed have to be put in a different D
class and they cannot claim seniority. [Para 26) [609-G-H]
1.2. In the case at hand, the special batch was
selected under Rule 5(1)(c) of the Assam Police Service
Rules, 1966. The proviso to Rule 5(1) of the 1966 Rules
E
clearly lays a postulate that the number of posts filled up
under clause (c) shall not, at any time, exceed five per
cent of the total number of posts in the cadre and one
post in any particular year. It was fairly conceded before
this Court that five per cent in the cadre could not have
exceeded four posts. However, there was a requisition for
F
20 posts to be filled up by special drive. Thus, there was
selection in excess of the quota provided in the Rule.
Nothing was shown to justify the departure since nothing
really could have been demonstrated as the Commission
had already recommended the names of the candidates G
meant for direct recruits. [Para 35] (617-C-E]
1.3. The Selection Committee had not recommended
the case of the special batch recruits to the Commission.
As the affidavit filed by the Secretary to the Commission
H
.,
590
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A before the tribunal clearly stated that the procedure was
not followed and the same has been accepted by the
tribunal and concurred with by the High Court, there is
no reason to differ with the same. The selection has been
made in excess of the quota and in the absence of a
B recommendation of the Selection Committee as
prescribed under the rules. Plainly speaking, a maladroit
effort was made to appoint the special batch recruits first
despite the recommendation of the direct recruits
pending before the State Government. It is also
C disturbing that though the Cabinet had not approved the
proposal for special drive to appoint from other source
yet the Director General of Police impressed upon the
Commission to recommend 20 names. It is also equally
perplexing that the concept of the special drive was
0 meant to have young officers but in the ultimate
eventuate, officers were nearing fifty got the appointment.
It is obvious that it was totally arbitrary and exhibits
indecent enthusiasm to confer benefits on the special
batch by making the rules comatosed. [Para 38) [620-H;
E 621-A-E]
1.4. When there is violation of the recruitment rules,
the recruitment is unsustainable. Whether any active part
is played by a selectee or not has nothing to do with the
appointment made in contravention of the rules. In the
F case at hand, the special batch recruits have encroached
into the quota of the direct recruits. The whole selection
was made de hors the rules. However, as there had been
long delay in challenging the selection of the special
batch recruits and some of them have already retired, it
G would not be apposite to annul their appointments. [Para
42) [622-B-E]
1.5. Rule 18 of the Assam Police Service Rules, 1966
deals with seniority. The two facets which emerge from
the scanning of the aforesaid Rule are that the seniority
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 591
of a member of the service is to be determined on the
A
basis of the date of appointment to the service and the
seniority has to follow a particular order as has been
stipulated therein. The other significant aspect is that
power has been conferred on the Governor to consider
the previous service of an incumbent and fix a deemed
B
date of appointment for the purpose of seniority by
adopting a specific method. As far as the first part is
concerned, the tribunal as well as the High Court has not
accepted the stipulation that in the present case the
seniority should be determined on the basis of the date C
of appointment as the same has been made in flagrant
violation of the rules and this Court concurs with the
same. As far as the computation of the previous service
is concerned, the High Court expressed the view that the
appointments had been made in contravention of the
rules, the question of conferment of the benefit under the
D
second proviso to Rule 18(1) did not arise. The said
conclusion is absolutely defensible for the simon pure
reason when the infrastructure is founded on total illegal
edifice, the endeavour to put forth a claim for counting
the previous service to build a pyramid is bound to
E
founder. [Para 44) [624-C-G]
i .6. As was observed by the High Court, there was
no decision to relax the rules in favour of the special
batch recruits. That apart, whenever there has to be
F
relaxation about the operation of any of the rules, regard
has to be given to the test of causation of undue hardship
in any particular case. That apart, the authority is required
to record satisfaction while dispensing or relaxing the
requirements of any rule to such an extent and subject G
to such conditions as he may consider necessary for
dealing with the case in a just and equitable manner. The
language of the Rule really casts a number of conditions.
It provides guidance. It cannot be exercised in an
H
592
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A arbitrary manner so as to dispense with the procedure of
selection in entirety in respect of a particular class, for it
has to be strictly construed and there has to be apposite
foundation for exercise of such power. It is to be borne
in mind that if a particular rule empowers the authority to
8 throw all the rules overboard in all possibility, it may not
withstand close scrutiny of Article 14 of the Constitution.
Be that it may, no decision was taken to relax the rules
and, the concept of deemed relaxation is not attracted
and, therefore, the relief claimed by the special batch
C recruits has no legs to stand upon. [Para 46] [625-D-G]
1. 7. There can be no scintilla of doubt that the
selection of the special batch recruits was totally de hors
the Rules; that there was a maladroit effort to go for a
special drive when there was no need for the same by the
D State which is supposed to be a model employer; that
neither the concept of relaxation nor the conception of
benefit of Rule 18 would be attracted for grant of
conferring any privilege to the special batch recruits; that
their seniority has to be pushed down and, hence, the
E directions given by the tribunal and the High Court in that
regard are absolutely flawless; and that regard being had
to the delayed challenge and long rendering of service in
the posts and further promotions having been effected,
it would be inapposite to quash their appointments. [Para
F 47] [625-H; 626-A-C]
State of U.P. v. Rafiquddin and Others AIR 1988 SC 162:
1988 SCR 794; Roshan Lal and Others v. International Airport
Authority of India and Others 1980 (Supp) SCC 449; The Direct
G Recruit Class-JI Engineering Officers' Association and Others
v. State of Maharashtra and Others AIR 1990 SC 1607: 1990
(2) SCR 900; Madan Gopal Garg v. State of Punjab and Others
1995 Supp. (3) sec 366: 1995 (1) Suppl. SCR 815;
Maharashtra Vikrikar Karamchari Sangathan v. State of
Maharashtra and Another (2000) 2 SCC 552: 2000 (1) SCR
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 593
166; D. Ganesh Rao Patnaik and Others v. State of Jharkhand
A
and Others (2005) 8 sec 454: 2005 (4) Suppl. SCR 102;
State ofW.B. and Others v. Aghore Nath Dey and Others (1993)
3 SCC 371: 1993 (2) SCR 919; State of Haryana and others
v. Vijay Singh and Others (2012) 8 SCC 633; University of
Kashmir and Others v. Dr. Mohd. Yasin and Others (1974) 3 B
SCC 546: 1974 (2) SCR 154; Swapan Kumar Pal and Others
v. Samitabhar Chakraborty and Others (2001) 5 SCC 581:
2001 (3) SCR 641; State of Haryana v. Haryana Veteminary
and AHTS Association and Another (2000) 8 SCC 4: 2000
(3) Suppl. SCR '322 - relied on.
Dali/ah Sojah v. State of Kera/a and Others (1998) 9
SCC 641; Bachan Singh v. Union of India (1972) 3 SCC 489:
1972 (3) SCR 898; Narender Chadha v. Union of India (1986)
c
6 SCC 157; J.C. Yadav v. State of Haryana (1990) 2 SCC
189: 1990 (2) SCR 470 and AK Subraman v. Union of India
D
AIR 1975 SC 483: .1975 (2) SCR 979 - referred to.
2. The State is a model employer and it is required
to act fairly giving due regard and respect to the rules
framed by it. But in the present case, the State has
E
atrophied the rules. Hence, the need for hammering the
concept. It is hoped that in future a deliberate disregard
is not taken recourse to and deviancy of such magnitude
is not adopted to frustrate the claims of the employees.
It should always be borne in mind that legitimate
F
aspirations of the employees are not guillotined and a
situation is not created where hopes end in despair.
Hope for everyone is gloriously precious and a model
employer should not convert it to be deceitful and
treacherous by playing a game of chess with their
seniority. A sense of calm sensibility and concerned
G
sincerity should be reflected in every step. An
atmosphere of trust has to prevail and when the
employees are absolutely sure that their trust shall not
be betrayed and they shall be treated with dignified
H
594
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A fairness then only the concept of good governance can
be concretized. [Paras 48, 53] [626-D; 627-C-F]
Bairam Gupta vs. Union of India & Anr. 1987 (Supp)
SCC 228; State of Haryana v. Piara Singh and Ors. (1992)
B
4 SCC 118: 1992 (3) SCR 826; Secretary, State of Kamataka
And vs. Umadevi And Others (2006) 4 SCC 1: 2006 (3) SCR
953 and Mehar Chand Polytechnic & Anr. vs. Anu Lamba &
Ors. (2006) 7 sec 161: 2006 (4) Suppl. SCR 436 - relied
on.
c
Case Law Reference:
1988 SCR 794
relied on
Para 8, 14, 24
(1998) 9 sec 641
referred to Para 8
D
1972 (3) SCR 898
referred to
P<!ra 13
(1986) 6 sec 151
referred to Para 13
1990 (2) SCR 470
referred to Para 13
1980 (Supp) sec 449
relied on
Para 22
E
1990 (2) SCR 900
relied on
Para 27
1975 (2) SCR 979
referred to Para 27
1995 (1) Suppl. SCR 815 relied on
Para 28
F
2000 (1) SCR 166
relied on
Para 29
2005 (4) Suppl. SCR 102 relied on
Para 30
1993 (2) SCR 919
relied on
Para 32
G
(2012) a sec 633
relied on
Para 33
1974 (2) SCR 154
relied on
Para 40
2001 (3) SCR 641
relied on
Para 40
H
2000 (3) Suppl. SCR 322 relied on
Para 40
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 595
1987 (Supp) sec 228
relied on
Para 49
A
1992 (3) SCR 826
relied on
Para 50
2006 (3) SCR 953
relied on
Para 51
2006 (4) Suppl. SCR 436 relied on
Para 52
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8514-8515 of 2012.
From the Judgment & Order dated 09.09.2008 of High
Court of Gauhati in Writ Appeal Nos. 448 & 465 of 2004.
c
WITH
C.A. No. 8516 of 2012.
M.N. Krishnamani, V. Shekhar, Azim H. Laskar, Abhijit
D
Sengupta, Prashant Bhushan, Sachin Das, Avijit Roy (for
Corporate Law Group), Balraj Dewan for the appearing parties.
The judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted.
E
2. In these appeals, the challenge is to the common
judgment and order dated 9.9.2008 passed by the Division
Bench of the High Court of Gauhati, Assam in WA Nos. 448 of
2004, 459 of 2004 and 465 of 2004 whereby stamp of approval
F
has been given to the judgment and order dated 19.11.2004
passed by the learned single Judge in WP(C) Nos. 7482 of
2002, 7843 of 2002, 7564 of 2002, 8081 of\2002 and 298 of
2003 whereunder the learned single Judge had maintained the
order dated tt.10.2002 passed by the-Assam Administrative
Tribunal, Guwahati (for short "the tribunal") in Appeal Case No.
G
79ATA of 1999, and dismissed WP(C) Nos. 4028 of 2003,
4129 of 2003 and 1031 of 2003 which were preferred directly
for issuance of mandamus commanding the respondent
authorities to consider the previous services rendered by the
petitioners therein prior to their appointments in the Assam
H
596
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Police Service (Junior Grade) in the year 1993 and to
determine their inter se seniority in the promotional cadre
accordingly and further disposed of WP(C) 69 of 2003
preferred by an Additional Superintendent of Police, Guwahati
for quashing of the appointment to the promotional post of the
B private respondents therein on the foundation that they had
been promoted in violation of the provisions of the Assam
Police Service Rules, 1966 (for brevity "the 1966 Rules').
3. Shorn of unnecessary details, the facts which are
C requisite to be stated are that the Assam Public Service
Commission (for short "the Commission") issued an
advertisement No. 9/92 dated 23.6.1992 inviting applications
for preliminary examination for the Combined Competitive
Examination, 1992-93 for selecting candidates for various
posts and services including thirty vacancies in the Assam
D Police Service (Junior Grade) (for short "the APS") as
requisitioned by the Commissioner-cum-Secretary to the
Government of Assam in the Department of Personnel on
5.9.1992. On 29.8.1992, the Commission published another
advertisement No. 12/92 inviting applications for filling up of 20
E posts in the APS under Rule 5(1)(c) of the 1966 Rules. There
is no dispute that the initial 30 vacancies were put in the
compartment of "regular batch" or "direct recruitment" and the
other 20 vacancies, which were sought to be filled up by way
of special drive, were kept in the category of "special batch" or
F "promotional recruits". The main examination for the regular
batch was held on 15.11.1992 for total marks of 1400. The
examination for the special batch was held on 22.11.1992 for
650 marks. The Commission declared the result in respect of
regular batch on 23.4.1993 and, vide letter dated 24.4.1993,
G recommended 30 candidates for appointment in order of merit.
Despite the recommendation by the Commission, no
appointment was made till 13.8.1993. At this juncture, the
Commissioner-cum-Secretary to the Government of Assam in
the Department of Home requested the Commission to furnish
·
the select list of the special recruits at the earliest. On the basis
\:!
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 597
[DIPAK MISRA, J.]
of the aforesaid letter of request, the Commission sent its
A
recommendations in respect of the candidates belonging to the
special batch and on the basis of the said recommendation,
vide notification No. HMA.478/86/Pt-l/17 dated 3.7.1993, the
respondent Nos. 6 to 24 before the tribunal were appointed .
. The respondent No. 25 was appointed on 31.81994. Thereafter,
the Competent Authority, vide notification No. HMA.110/93/43
dated 13.8.1993, appointed 28 persons from the regular batch.
As the recruits of the special batch were appointed earlier, they
were treated senior to the recruits belonging to the regular
batch.
4. The facts, as further uncurtained, are that the
determination of seniority came to the notice of the recruits of
the regular batch at the time of their confirmation of service in
B
c
the year 1999. Being dissatisfied with the action of the
authorities, they immediately submitted a representation. When
D
the representation was pending consideration, a provisional
gradation list showing the inter se seniority as on 31.12.1992
was published on 12.3.1999. In the said provisional gradation
list, the recruits of the special batch were shown as senior to
the recruits of the regular batch. As warranted, the recruits
E
belonging to the regular batch filed their objections to the
fixation of seniority on 24.9.1999, but without publishing the final
gradation list, the respondent No. 3, namely, the Secretary in
the Department of Home, promoted 14 officers belonging to
the special batch and 16 officers belonging to the regular batch
F
to the Senior Scale of APS (Grade-II). In the promotional order,
the officers belonging to the regular batch were shown below
the officers belonging to the special batch. Because of the
aforesaid situation. the direct recruits invoked the jurisdiction
of the tribunal for the apposite determination of seniority G
claiming to be senior to the respondent Nos. 6 to 24.
5. The claim of the appellants before the tribunal was
resisted by the respondent-State and the private respondents
therein on many a ground including the one that the appeal was
H
598
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A barred by limitation. It is worthy to note that in an affidavit, the
Secretary to the Commission asseverated that the Government
had not consulted the Commission before publishing the
provisional gradation list; that when the selection process for
the regular batch was already underway, there was no
B justification whatsoever to go for special recruitment; that the
recourse taken to fill up the posts by way of special recruitment
was in gross violation of the rules and procedure inasmuch as
all vacancies could have been filled up by resorting to the usual
and regular procedure of recruitment; that the Competent
C Authority of the State Government should have acted on the list
sent by the Commission relating to the regular candidates in
quite promptitude but delayed it for no apparent reason and
called for the recommendation for the special batch and issued
letters of appointment in their favour which exhibited
0 unwarranted interest; and that the inter se seniority deserved
to be refixed and the regular batch should be treated to be
senior to the special batch.
6. The tribunal dealt with the issue of limitation and
observed that the appeal did not concern itself with the validity
E or propriety of the appointments of the respondent Nos. 6 to
25 but fixation of inter se seniority and hence, the appeal was
not barred under the provisions of the Assam Administrative
Tribunals Act, 1977. It further opined that it was curious that
despite the fact that the recommendation in respect of the
F regular batch had already been forwarded to the Government
by the Commission, no steps were taken. The aforesaid act of
the authority, observed the tribunal, on one hand, exposited
lackadaisical attitude in dealing with the case of the regular
batch and, on the other, unreasonable alacrity in the
G appointment of the special batch. The tribunal attributed motive
to such an action and proceeded to opine that there was no
administrative decision by the appropriate authority for making
appointment to the service by resorting to the process of
special recruitment in preference to general recruitment.
H
7. It.is apt to note that the tribunal referred to various
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 599
[DIPAK MISRA, J.]
departmental communications including the letter dated
A
17.8.1991 which emanated from the Office of the DGP
proposing to enlist 20 Deputy Superintendent of Police from
otber departments under Rule 5(1)(c) of the 1966 Rules. The
tribunal referred to Rules 5, 7 and 8 of the 1966 Rules and
came to hold that a close perusal of the provisions of the
B
service Rules clearly show that recruitment by resorting to
clause (c) of sub-rule (1) of Rule 5 should be made only in
special cases and at all time such recruitment must be limited
only to 5 per cent of th,e total number of posts in the cadre and
such special recruitment must be limited only to one post in a C
particular year. It further stated that the 1966 Rules are quite
silent as regards carry forward of such posts and, therefore,
there could not have been accumulation of vacancies to be filled
up by resorting to the provision contained in clause (c) of subrule (1) of Rule 5 and as such, the question of selecting and
appointing as many as 20 persons in a year did not arise. The
D
tribunal further held that as per Rule 8(1 ), the Governor is
required to call for recommendations from the recommending
authorities for the purpose of recruitment to the service under
clause (c) of sub-rule (1) of Rule 5 and the recommending
authorities are also required to submit recommendations in
E
respect of the persons having regard to the laid down criteria
but in the instant case, the said procedure was given a total
go by which is not permissible. The tribunal further noticed that
Rule 8(2), which is mandatory, provides that all the
recommendations are required to be submitted before the
F
selection committee constituted under Rule 7(1) and the
selection committee is required to interview the recommended
candidates and prepare the select list and, ~herefore, the
Commi!lsion, in no circumstance, could have been entrusted
with the responsibility of interviewing, testing, selecting and
G
recommending any candidate for special recruitment under
clause (c) of sub-rule (1) of Rule 5. In this backdrop, the tribunal
observed that, admittedly, all the processes undertaken by the
Commission and the third respondent were in gross violation
H
600
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A of the mandatory provisions of the Rules and hence, the,
selection was not valid.
8. After so stating, the tribunal proceeded to hold that as
the respondent Nos. 6 to 25 had been appointed in violation of
8 the rules, they could not be treated as regular recruits within the
meaning of Rule 5(1 )(a) of the 1966 Rules. It also stated that
had the appeal been filed earlier in a different form, the selection
and appointment of the special batch recruits could have
possibly been set aside. Eventually, the tribunal placing reliance
on State of U.P. v. Rafiquddin and Others1 and Dali/ah Sojah
C v. State of Kera/a and Others2, came to hold that due to
unreasonable delay and inaction on the part of the Government
in notifying the appointments, the regular batch candidates, who
were earlier recommended by the Commission, could not be
put in jeopardy and lose their seniority and accordingly directed
D for refixation of the seniority list. It further directed that the
regular batch shall be allowed consequential benefits with effect
from the date on which the senior most member of the special
batch availed of any benefit even by creating supernumerary duty
E
post in the cadre.
9. Being dissatisfied with the order passed by the tribunal,
as has been stated earner, certain writ petitions were preferred
and some writ petitions were directly filed before the High Court
seeking quashment of the appointment of the private
F respondents as Deputy Superintendent of Police. The prayer
in the other batch of writ petitions was to treat the direct recruits
as per the rules regard being had to their date of appointment
and to extend the benefit of earlier services as stipulated under
Rule 18 of the 1966 Rules.
G
10. The learned single Judge adverted to the facts in detail,
the proposal before the Cabinet for appointment of 20 officers
in the post of Deputy Superintendent of Police by taking resort
1.
AIR 1988 SC 162.
H 2.
c100ai 0 sec 641.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 601
[DIPAK MISRA, J.]
to Rule 5(1)(c) of the 1966 Rules and basically posed three
A
questions, namely, (i) whether the appeal preferred before the
tribunal was barred by limitation; (ii) whether the members of
the regular batch could be treated as senior when their
appointments were violative of the recruitment process as
envisaged under the relevant recruitment rules; and (iii) whether
B
the tribunal was justified in directing rectification in the gradation
list when there was no appeal seeking removal of the special
batch recruits being in violation of the rules. Be it noted, as far
as question No. (iii) is concerned, the learned single Judge
framed five ancillary questions.
c
11. While dealing with the facet of limitation, the learned
single Judge referred to the relevant provisions of the Act and
expressed the view that the appellants before the tribunal having
the remedy which was available to them in terms of the
directions contained in the circular dated 1.4.1999 were entitled
D
to prefer the appeal in terms of the proviso to sub-section (2)
of Section 4 of the AA T Act, 1977 and hence, the appeal was
not barred by limitation.
12. Adverting to the facet of appointment, the learned
E
single Judge scanned the anatomy of the 1966 Rules and
came to hold that the number of persons who got selected as
members of the special batch were not eligible for
consideration for appointment in terms of Rule 5(1)(c) and
further the procedure engrafted under the said sub-rule was not
F
followed and, in fact, was mutilated and flouted in every
conceivable manner leading, eventually, to the appointment of
the members of the special batch. Dwelling upon the issue that
the appointments were arbitrary, malafide and discriminatory
vis-a-vis the appointment of the direct batch, the learned single
G
Judge referred to the factual matrix pertaining to the
recommendations sent for recruitment by special drive, the
Cabinet Memorandum and the Cabinet decision and eventually
held that notwithstanding the fact that the proposal for
recruitment of twenty Dy. Superintendents of Police, as a H
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[2012] 12 S.C.R.
· A special case, was submitted by the Home Department and the
Government did not agree to the proposal, yet the decision to
make the recruitment and the manner and modalities for holding
of the interview and the test for the purpose of recruitment of
the Special Batch was taken in the chamber of the Chairman
B of the Commission, on the basis of a discussion held between
the then DGP, Assam, and the Chairman of the Commission
and, therefore, the decision, so reached, could not be termed
as a decision of the Government. He also observed that the
members of the Special Batch were selected throwing overC board, in entirety, the relevant recruitment rules. Regard being
had to chronology of events leading to the appointment of the
members of the Special Batch, the learned single Judge opined
that the entire exercise for selecting the Special Batch was
wholly de hors the relevant recruitment rules. The urgency shown
D by the Government to obtain the result of the examination held
in respect of the Special Batch was an indication that the
Government was waiting, for no justified and valid reason, to,
first, make appointment of the members of the Special Batch,
though selected in complete disregard of the Rules, and, then,
E issue appointment in respect of the members of the Direct
Batch, whose process of selection was never questioned. After
so stating, the learned single Judge held that contrary to the
provisions of Rule 5(1 )(c), which prescribes upper age limit for
selection to be 35 years and throwing to the wind the very
purpose for which special recruitment was sought to be made,
F the age was relaxed to 45 years and persons, who were born
in 1942, came to be selected in the year 1992, and thereby
many of the officers recruited under the special drive were as
old as 50 years, whereas proposal for the special drive was
made on the pretext of recruiting young officers. He also opined
G that the whole process of selection of the special batch
recruited was malafide and arbitrary.
13. After so stating, the learned single Judge dealt with
issues whether the appointments were ab-initio void, whether
H the relevant rules of recruitment were relaxed in respect of the
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM. 603
[DIPAK MISRA, J.]
special batch at the time of making their recruitment and what
A
was the permissible limit of relaxation and whether there can
be deemed relaxation. Delving into the said aspects, the
learned single Judge ruled that while appointing the special
batch, the rules of recruitment were completely shelved, no
order of relaxation was passed under Rule 23 relaxing the
B
provisions contained in Rule 5(1)(c) of the 1966 Rules; and that
there could not have been any deemed relaxation. The learned
single Judge referred to various pronouncements of this Court
with regard to relaxation and deemed relaxation and expressed
the view that the Special Batch was recruited, ostensibly, on
C
the ground that the department was in need of young officers
in the grade of Deputy Superintendent of Police, but the officers
recruited were as old as 50 years, and, thus, the very purpose
for which the proposal was mooted stood defeated. The writ
court discussed the ratio laid down in Bachan Singh v. Union
D
of lndia3, Narender Chadha v. Union of lndia4 and J.C. Yadav
v. State of Haryana5 and held that contrary to the facts of the
case of J.C. Yadav (supra), wherein the relaxation of the rules
could be justified by the Government, the State-respondent had,
in the obtaining factual matrix, miserably failed to show any
E
justification to relax the rules and in any case could not have
relaxed the rules to such an extent to make it nugatory. It was
also observed that when the Cabinet Memorandum had failed
to receive the approval of the Cabinet, the then DGP, Assam,
in consultation with the Chairman of the Commission, could not
have, through the back-door and with the help of an authority
like the Commission, flouted the relevant rules and made the
appointments.
14. The learned single Judge ruled that the appointment
F
in the promotional cadre was de hors the rules and, therefore,
G
the court cannot direct that the period of service rendered in
3.
(1972) 3 sec 489.
4.
(1986) s sec 157.
. 5.
(1990) 2 sccc 189.
H
604
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A the promotional post by virtue of illegal promotional appointment
should be counted for the purpose of seniority. Relying on the
pronouncement in Raffiquddin (supra), the learned single Judge
held that the case in hand is more akin to the facts of
Raffiquddin (supra) and ruled that it is possible that without
B setting aside and quashing the appointment of an irregular
appointee, the Court or tribunal may direct the appointing
authority to treat a regular appointee in service, though
appointed later in point of time than the irregular appointee, as
senior to the irregular appointee.
c
15. It is worthy to note that the learned single Judge referred
to Rule 18 of the 1966 Rules which clearly states that the
seniority of the members of the service shall be determined on
the basis of their respective dates of appointment to the service.
He distinguished the applicability of Rule 18 and ultimately
D maintained the order passed by the tribunal and dismissed the
writ petitions challenging the order of the tribunal. It is apt to
note that in WP(C) 69 of 2003 wherein the petitioner had
directly approached the High Court for quashment of the ·
appointments of the special batch recruits, the learned single
E Judge observed that the appointments of the special batch
deserved to be set aside and quashed, but he refrained from
doing so considering the period of service which they had
rendered.
F
16. Being dissatisfied with the aforesaid order, the special
recruits preferred WA Nos. 448 of 2004 and 465 of 2004. WA
459 of 2004 was filed by the recruits under Rule 5(1)(a) of the
1966 Rules .. The Division Bench noted the facts, adverted to
the orders passed by the tribunal and the learned single Judge,
G dealt at length with the submissions canvassed by the learned
counsel for the parties and came to hold that the tribunal had
jurisdiction to deal with the appeals and thereafter, dealing with
the stand that the appointments having not been challenged the
delineation thereof by the tribunal and the learned single Judge
H was barred by the doctrine of res judicata, repelled them on
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 605
[DIPAK MISRA, J.]
the base that the memorandum of appeal before the tribunal
A
had graphically challenged the appointments to be non est
being in violation of the rules though that there was no prayer
for cancellation of the appointments. The Division Bench
analysed the scheme of the rules and stated that Rule 5(1 )(c)
envisages a selection in special cases from amongst the
B
limited categories of persons referred to and the number of
vacancies to be filled up by that procedure has also been
restricted. The Division Bench referred to Rule 8 and regarded
it as unequivocal on the conditions of eligibility, commencement
of the process contemplated and the culmination thereof, and
C
observed that the assessment of eligibility by the
Recommending Authority of the person is a sine qua non for
consideration of his candidature to be recruited. The candidate,
as per the mandate of Rule 8, has to be of outstanding merit
and ability, possessing the academic qualification as
D
prescribed by Rule 10, should not be above 35 years of age
on the first day of the year in which the recommendations are
called for and should have not less than two years of experience
in duties comparable in status and responsibility to that of the
Deputy Superintendent of Police or 8 years of experience in
duties comparable in status and responsibility to that of the
Inspector of Police.
E
17. After so stating, the Division Bench referred to various
authorities and, eventually, came to hold that though the
appointments of the special recruits had been made in
F
deviation of the Rules, yet the same cannot by any means be
branded as de hors any procedure whatsoever known to public
employment. Their induction of the special recruits cannot be
equated with ad hoc, casual or temporary recruitments or an
entry through the backdoor and hence, their appointment cannot
G
be regarded as de hors the rules. Dealing with the aspect of
seniority it ruled that their appointments not being in observance
, of the statutory provision stricto sensu, the fixation of their batch
wise seniority over the direct recruits of the same year is
impermissible and the benefit as stipulated under the proviso
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(2012] 12 S.C.R.
A to Rule 18(1) was not extendable.
18. The Division Bench further opined that at such a
belated time their appointments could not be annulled. In the
ultimate analysis, the Division Bench concurred with the view
B expressed by the learned single Judge on the issue of fixation
of seniority.
19. It is worthy to note that in compliance of the judgment
and order passed by the learned single Judge, a notification
No. HMA.154/2004/Pt.1/176 was issued on 6.12.2004 wherein
C the direct recruits of the 1993 batch were placed above the
special recruits of the same year in the APS Senior Grade-II.
The Bench also perused file No. H.M.A. 10/99 of the Home
Department from which it transpired that the names of the
candidates to the promotional posts were recommended in
D order of preference following the same seniority in which their
names appeared in the provisional gradation list dated
12.3.1999 as the Selection Committee did not find any reason
justifying supersession of a senior by a junior. The Division
Bench noticed that as the inter se seniority of promotees was
E a replication of that in the provisional gradation list which has
been unsettled, the challenge to the notification dated
6.12.2004 was unsustainable. Being of this view, the Division
Bench dismissed all the appeals.
20. We have heard Mr. Prashant Bhushan, learned counsel
F representing the special batch recruits, and Mr. V. Shekhar,
learned senior counsel appearing for the direct re_cruits in all
the appeals.
21. The fundamental questions that emanate for
G consideration before this Court are, namely, whether the
appointments have been made in violation of the rules; whether
the selection of the special batch recruits if accepted to be in
violation of the rules, can be treated to be de hors the rules;
and whether the concept of relaxation has been extended to
H them or is extendable to them and further whether they can avail
BHUPENDRA NA"l H HAZARIKA v. STATE OF ASSAM 607
[DIPAK MISRA, J.]
•
the benefit under the second proviso to Rule 18 of the Rules
A
and whether the tribunal as well as the High Court is justified
in refixing the seniority without quashing the appointment of the
special batch recruits.
22.