# D. D. SURI v. UNION OF INDIA AND ANR

- **Citation:** [1980] 1 S.C.R. 24
- **Court:** Supreme Court of India
- **Decided:** 1979-07-17
- **Case number:** Civil Appeal No. 1419 of 1971
- **Bench:** V. R. Krishna Iyer, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-d-suri-v-union-of-india-and-anr-7743
- **Pages:** 26

## Headnote

Assignment of year of allotment-Indian Administrative Service (Regulation
~
of Seniority) Rules, 1954, Rule 3 read with "Open Market Emergency Recruit~
ment Scheme 'N' formula"-lnterjerence by Courts under Article 226 of the
Constitution of lndia.
C
Fundamental Rules, F.R. 9(21)(b)-Concept of 'pay'-'"Pay" for
purposes
of determining the "co1npleted years of actual experience" under 'N' fotfnula
does not include lodging allowauces and Calcutta compensatory allowanceWhetlier excluding these allowances offend Articles ·14 & 16 of the Constitution.
Funda1nental Rule 49-Combination of posts and right to additional pay,
applicahility of, to officers, governed by Indian
Administratil~e Service (Pay)
D
Rules 1954, Rule 13,
E
F
G
B
"Next Below Rule'', principle of-Applicability of b~nefit under F.R. 30(1)
-Super-time scale of Indian Administrative Sen•ice.
The appellant was boro on January 7, 1915.
He joined the
Editorial
Staff of the Civil and Military Gazette, Lahore, towards the end of 1938 and
continued to serve the Civil and Military Gazette upto
January 7,
1943,
when he joined the Army.
During th'e Second World War be was granted
an Emergency Commission in the Army w.e.f. March 7, 1943 with the rank
of Lieutenant w.e.f. June 3,
1948 but with seniority in that
rank
w.e.f.
September 1944.
Later, Ire, having been selected by the Special Recruitment
Board as an Emergency Recruit from the "open market" was appointed to
the Indian Administrative Service on August 7, 1950 and allocated to the
Orissa Cadre.
As regards Emergency Recruits from the open market the year of allotment
was to be determined according to the "open Market Emergency Recruitment
Scheme" called also 'N' formula.
The year of allotment in each cas'e would
be 1949-Y, where Y = Ni + t of N2.
N11 means the period of previous
experience.
The previous experience is the number of completed years of
actual experience of th'e officers after attaining the age of 25 and upto 31st
December, 1948 as certified by the Special Recruitment Board. N1 means. the
period of continuous. employment on a pay or income of not less than of
Rs. 800/- per month before 31ot December, 1944 and the 31st Dec'ember
1948, inclusive. The larger the figufe of "Y", the earlier the date of allotment
and seniority.
Th'e period of previous experience (N2) in the case of the appellant worked
out to 8 years 11 months 25 days
rounded off to 8 years (i.e. 7-1-40 to
31-12-48).
The figure of N• was worked out taking the ''protection pay"
admissible to Army Officers as per F.R. 9 (21 )(b) i.e. excluding the Calcutta
..
>
.,
D. D. SURI V. UNION
25
comp'ensator)' allowance and lodging allo\vance.
Therefore, by its letter dated
A
June 11, 1952, the Ministry of Home Affairs fixed the year of allotment of
the petitioner to the Indian Administrative Service as 1944. ( 1949 minus 5).
The appellant held various posts in the Indian Civil Administrative Servic'e
cadre of Orissa and was also on deputation to the Government of India
from 1952 to April 7, 1964.
During this period, he was appointed as the
Salt Commissioner and 1-lanagi1.1g Director, Hindllstan Salt Ltd, with HeadB
quarter at Jaipur.
He h'eld both these posts from September 11, 1953
to
December 23, 1963, a.nd only as Salt Commissioner till April 7, 1964, whereafter he was reverted to the State of Orissa. I-le was
compulsorily
retired
by the Governm·ent on June 9, 1971.
By its order dated September 1, 1977.
the State Government gave him pay and allowances in the super-time scale
from November 29, 1967 to April 24, 1968 and thereafter selection grade
from April 15, 1968 to June 9, 1971.
Respondent 1 rejected his representa.-
C
tion (a) for refixing his year of allotment by condoning the shortage of 6
days in determining Nz and by taking into consideration allowances for purposes of Ni (b) for granting the bcllefit of F.R. 49 and (c) for granting the
benefit under F.R, 30,
The appellant, therefore, filed a ·writ petition to the High Court cla.iming
three reliefs,

## Text

_Characters 0–39,249 of 70,976. This is a partial read: ask again with offset=39249 for what follows._

A
•
24
D. D. SURI
v.
UNION OF INDIA AND ANR.
July 17, 1979
[V. R. KRISHNA IYER AND A. P. SEN, JJ.]
Assignment of year of allotment-Indian Administrative Service (Regulation
~
of Seniority) Rules, 1954, Rule 3 read with "Open Market Emergency Recruit~
ment Scheme 'N' formula"-lnterjerence by Courts under Article 226 of the
Constitution of lndia.
C
Fundamental Rules, F.R. 9(21)(b)-Concept of 'pay'-'"Pay" for
purposes
of determining the "co1npleted years of actual experience" under 'N' fotfnula
does not include lodging allowauces and Calcutta compensatory allowanceWhetlier excluding these allowances offend Articles ·14 & 16 of the Constitution.
Funda1nental Rule 49-Combination of posts and right to additional pay,
applicahility of, to officers, governed by Indian
Administratil~e Service (Pay)
D
Rules 1954, Rule 13,
E
F
G
B
"Next Below Rule'', principle of-Applicability of b~nefit under F.R. 30(1)
-Super-time scale of Indian Administrative Sen•ice.
The appellant was boro on January 7, 1915.
He joined the
Editorial
Staff of the Civil and Military Gazette, Lahore, towards the end of 1938 and
continued to serve the Civil and Military Gazette upto
January 7,
1943,
when he joined the Army.
During th'e Second World War be was granted
an Emergency Commission in the Army w.e.f. March 7, 1943 with the rank
of Lieutenant w.e.f. June 3,
1948 but with seniority in that
rank
w.e.f.
September 1944.
Later, Ire, having been selected by the Special Recruitment
Board as an Emergency Recruit from the "open market" was appointed to
the Indian Administrative Service on August 7, 1950 and allocated to the
Orissa Cadre.
As regards Emergency Recruits from the open market the year of allotment
was to be determined according to the "open Market Emergency Recruitment
Scheme" called also 'N' formula.
The year of allotment in each cas'e would
be 1949-Y, where Y = Ni + t of N2.
N11 means the period of previous
experience.
The previous experience is the number of completed years of
actual experience of th'e officers after attaining the age of 25 and upto 31st
December, 1948 as certified by the Special Recruitment Board. N1 means. the
period of continuous. employment on a pay or income of not less than of
Rs. 800/- per month before 31ot December, 1944 and the 31st Dec'ember
1948, inclusive. The larger the figufe of "Y", the earlier the date of allotment
and seniority.
Th'e period of previous experience (N2) in the case of the appellant worked
out to 8 years 11 months 25 days
rounded off to 8 years (i.e. 7-1-40 to
31-12-48).
The figure of N• was worked out taking the ''protection pay"
admissible to Army Officers as per F.R. 9 (21 )(b) i.e. excluding the Calcutta
..
>
.,
D. D. SURI V. UNION
25
comp'ensator)' allowance and lodging allo\vance.
Therefore, by its letter dated
A
June 11, 1952, the Ministry of Home Affairs fixed the year of allotment of
the petitioner to the Indian Administrative Service as 1944. ( 1949 minus 5).
The appellant held various posts in the Indian Civil Administrative Servic'e
cadre of Orissa and was also on deputation to the Government of India
from 1952 to April 7, 1964.
During this period, he was appointed as the
Salt Commissioner and 1-lanagi1.1g Director, Hindllstan Salt Ltd, with HeadB
quarter at Jaipur.
He h'eld both these posts from September 11, 1953
to
December 23, 1963, a.nd only as Salt Commissioner till April 7, 1964, whereafter he was reverted to the State of Orissa. I-le was
compulsorily
retired
by the Governm·ent on June 9, 1971.
By its order dated September 1, 1977.
the State Government gave him pay and allowances in the super-time scale
from November 29, 1967 to April 24, 1968 and thereafter selection grade
from April 15, 1968 to June 9, 1971.
Respondent 1 rejected his representa.-
C
tion (a) for refixing his year of allotment by condoning the shortage of 6
days in determining Nz and by taking into consideration allowances for purposes of Ni (b) for granting the bcllefit of F.R. 49 and (c) for granting the
benefit under F.R, 30,
The appellant, therefore, filed a ·writ petition to the High Court cla.iming
three reliefs, namely, (a) Refixation of the year of allotment as 1942 instead
of 1944 in the Indian Administrative Service, alleging that by refusing to
treat th'e Calcutta compensatory allowance and lodging
allowance as pay
under FR 9 (21 )(b) and to condone the six days' shortage in determining the
number of completed years of editorial experience under 'N' formula, Respondent 1, by its order dated June 11, 1952, denied him seniority,
(b)
Pay
as admissible under FR 49 i.e. full salary of one post and additiona.1 salary
upto "a maximum of 50% of the second post, for the period from September
11, 1961 to December 23, 1963 during which he held both the posts of Salt
Commissioner and Managing Director, Hindustan Salt Ltd. and (c) Plac'ement in the super-time sea.le w.c.f. July 24, 1962, i.e. the date when his
junior Sri V. V. Ananta Krishnan was appointed to the· super-time scale,
under the "Next Below Rule" implied in F.R. 30.
The High Court refused to grant the reliefs, prayed for, and dismissed the
Writ Petition.
Dismi<;sing the appeal by special leave, the Court
HELD : 1. In view of th'e categorical averment in his a.pplication for grant
of special lenve 1o this Court under .~rticle 136 of the Constitution that "h~
was no longer interested in the relief for determinatiorr of the year of
allotment, according to the 'N' formula, since he was on the verge of retirement"
the appellant cannot be heard to say that the Go,~ernment of India bad not
arrived at a correct decision 'in assigning 1944 as the year- of allotment to him.
[33H-34A, 340]
(2) Normally the decision of the Goven1ment of India assigning a year
of allotm'ent to a. particular offieer under Rp:le 3 of the Indian Administrative
Service (Regulation of Seniority) Rules, 1954, or, in accordance \Vith orders
and instructions issued by the Central Government in that behalf before the
00-mmencement of thes'e Rules 1 is final and cannot be interfered by the Courts
under Article 226 of the Constitution unless such decision was capricious or
arbitrary or in breach of the sadd Rules.
The same principle should apply
to the assignment of a year of allotment under the 'N' formula.
[36F]
D
E
F
G
n
A
B
c
D
E
F
G
H
26
SUPREME COURT REPORTS
[1980] 1 S.C.I\,
Even according to the appellant, he was not entitled, under the 'N' formula
as it stands, to a credit of more than 8 years. If that be so, the High Court
quite properly declined to exercise its extra-ordinary jurisdiction under Article
226 of the Constitution, inasmuch as no writ or direction could be issued,
in a matter which was essentially in the discretion of the Government, to refix
his seniority by giving credit for 9 years instead of 8 years as provided for,
as admittedly the releva'Ilt instructions require "completed years of actual
experience", [;j,6E]
There is no qu'estion of condoning the short fall of six days by relaxation
of the relevant RUies under the powers vested in the Government of India by
the All India Services (Conditions of Service R'esiduary Matters) Rules, 1960,
since these Rules were not in force when the Government of India, Ministry
of Home Affairs, by its letter dared July 19, 1951, iSiSued a statement showing
the years of aJlotment assigned to officers borne on the Indian Civil Adminis·
trative cadre of Orissa, wherein the year of allotment assigned to the petitioner
was 1943lf, or even at the time when the Ministry of Home Affairs by its
letter dated June 11, 1952 rejected his representation in that behalf, while
revising his year of allotment to" 1944.
Further, the
Government of
lndi'.l.
adopted a uniform policy in this. regard and short falls of even less than
6 days have not been condoned so that there could b'e uniformity of taking
note of "completed years of service" irrespective of the short fall of ~umber
of days in calculating the year of allotment in every case under the
'N'
formula.
The Government of India have also held that the 'Recruitment
Rules' cannot be relaxed under Rule 3. [36H-37C, 38D]
Even assuming there was a power to condone the· deficiency,
thei matter
rested entirely in the discretion of the Government of India. When a decision
1n a policy matter like relaxation is left to the absolure discretion of the
Executive, cout19 cannot interfere and issue a direction t.o the Government
of India to reconsider the matter afres-h, after a lapse of more than 25 years.
It would not only disturb the combined gradation list of the Officers belonging
1o the Indian Administrative Service, but also affect the seniority of many
officers' who have not been impleaded in these proceedings. [38G]
(3) The definition of 'pay' in the case of a
military
officer,
introduced
by F.R. 9 (21) (b) is for 'protection pay' when such officer is recruited in
civil service under the employment of the, Union of India, i.e.. for fixation
of his pay in slich service, as is made clear by F. Rs. 2 and 3. P.R. 2 provides that the Fundamental Rules shall apply, subject to the provisions of P.R.
3, to all Government servants whose pay is d'ebitable to civil estimates and
to any other class of Government servants to which the President ma.y, by
general or special order, declare them to be applicabl'e.
F.R. 3 provides,
that unless it be otherwise distinctly provided by or under the Rules, "Nothing
in these Rules shall apply to Government servants whose conditions of service
are governed by Army or Marine Regulations". F.R. 9(21)(b) had, therefore,
no relevance in the matter of fixing the seniority of Emerg'ency Recruits
from the "Open Market" to the Indian Administrative Service, like the petitioner, 'even when they were drawn from the Army, but was applicable only in
regard to fixation of their initial pay. [39E, D, G]
The 'pay' for purposes of determining the year of allotment under "N·'
formula of such recruits drawn from the Army was, as per the ooderlying
principles set out in the Ministry of Hom'e Affairs dated July 18, 1949, the
..
"
D. D. SURI V. UNION
27
"basic pa.y" \vhich necessarily exclude allowances.
This concept of
"basic
A
pay" for :fixation of initial pay is reflected in the Indian Administrative Service
(Pay) Rules, 1954, which takes into account only the
"initial
pay".
[40Gl
Th'e rule \Vhich requireSo credit to be given for the period of continuous
employment on pay or income not less than Rs.
800/-
p.m., \vould apply
uniformly to all recruits drawn from different sources, namely, persons who
\\'ere previously lawyers, or employed in business houses or in Gov'ernment
service.
Uniformity in such a case can only be attained by excluding allowances in every case, because the allowances which persons drawn from these
different sources v,rould be getting, would be varied in character. The Government of India, therefore, acted fully in consonance with Articles 14 and 16 of
the Constitution. [41A-C]
The conc'ept of 'pay' under F.R. 9(21) (b) cannot be introduced for purB
poses of regulating the year of allotmi~nt under 'N' formula,. as it relates
to
C
fixation of seniority and not of pay..
If the definition of 'pay' in
F .R.
9 (21) (b)
was to be taken note of, then Calcutta compensatory allovt·ance
and ma·rrlage allowance would also be
included. Then, a rule
\\'hich
makes seniority dependent upon marriage allowance, and therefore, on whether
the officer was married or not will be violative of Article 14 of th'e Consti~
tution. The inclusion of 'pay' as defined in P.R. 9(21)(b) in the 'N' formula to
include lodging allowance is not permissible as it was essentially compen£atory
D
in chara..::ter.
Any other construction will l'ead to manifest injustice as it
would result in discrimination between persons similarly situated i.e., bet¥.'een
an Army Officer in receipt of lodging allowance in lieu of rentMfre'e quarters
and one in occupation of such rentMfree quarters, in the ma.Her of seniority
in the Indian Administrative Service. [41G-H, 42D·E1]
( 4) The conditions of service of members of the Indian Administrative
E
Service are regulated by the provisions of All India Services Act, 1951 and
the various Rules and Regulations framed thereunder, such e.s Indian AdminisM
trative Service (Recruitment)
Rules,
1954,
Indian Administrative Service
(Cadre) Rules, 1954, Indian Admini&trative Service (Pay) Rules, 1954, Indian
Administrative Service (Regulation of Seniority) Rules. 1954, Indian Administrative Service (Appointment by Promotion) Regulation,
1955, All India
Services (Discipline and Appeal) Rules, 1955, and 1969, All India Services
F
(Conditions of SCrvice-Residuary Matters) Rules, 1960 etc.
Wh.'en there is
specified provision made in regard to them on a particular subject .regulating
their conditions of service in the said A.::t and the Rules, th'e question of
applicability of the Fundamental Rules does not arise. [42GM43A]
Even assuming that the Fundamental Rules were applicable on August 7,
1950 i.e. at th'e time when the petitioner ·was appointed to the Indian AdminisG
trative Service, these Fundamental Rules ceased to be applicable on the coming into force of the aforesaid rules and regulations framed und'er the Act,
unless- the President by an order under F.R. 2 declared them to be so applicable. [43BJ
The provisions of F.R. 49 ceas'ed to apply from the date on which the
Indian Administrative Service (Pay) Rules 1954, were brought into force,
as it makes no provision for 'additional pa.y'.
Even if they were P.R. 49,
in terms, provides that when a civil servant holds two posts, he is disentitled
to draw the salary of lioth the po•ts.
All that such a civil servant becomes
H
28
SUPREME COURT REPORTS
[1980] l S.C.R.
A
entitled to is the salary of the higher .post, but no additional pay can be
allowed for pe1forming the duti'es of the lower post.
Thus, the pay of one
of the posts can be allowed.
B
c
D
E
F
G
H
Even ~urning that the
prov~ions in t_he
Fundamental Rules would
continue to apply to a member of the Indian Administrative Service in regard
to which Do· sp'ecific provision is made by framing a rule under the All India
Services. Act, 1951, and therefore, in the instant case, the appell&nt was still
governed by F.R. 49, he had no claim to any additional salary, on the
materials on record. [44A]
(5) The, intention underlying the s'econd proviso to F.R. 30(1) which
is commonly known as the "Next Below Rule" is the principle that when an
oHicer in a post (whether \Vithin the cadre of his service or not) is for any
reason p1'evented from officiating in his turn in a post on higher scale or
grade borne on the cadre of the service to which he belongs, he may be
authorised by special order of the appropriate authority pro fon11a
officiating
promotions into such scale of pay and theteupon be granted the pay of that
scale of grade, if they be more advz.ntageous to him oo each occasion on
which the officer immediately jUnior to him in the cadre of his service draws
officiating pay in that scale or grade.
Th'e principle behind the so-called
rule is evidently that an officer out of his regular line &hould not suffer by for-
. feiting acting promotion which he would otherwise have received had he
remained in his regular line.
[44G-45A]
7/Je State of Mysore v. M. H. Bcl/ary, [1964] 7 SCR 471. referred to.
The 'Next Below Rule' is not a rule of any independent application.
It
sets out only the guiding principles for application in any cas'e in which the
President or the Governor proposes to regulate an officiating pay by special
order under the second proviso to F.R. 30(1).
The condition precedent to
the application of the 'Next Below Rule' must, therefore, be fulfilled in each
individual c<M;e before any action can be taken under this proviso.
[45F1
(6) The promotion to a post in super-time scale involves. an element of
selection and is not by mere seniority.
As a rule of universal application.
the brnefit of the "Next Below Rule" though available in ,-ie selection grade
has never b'een extended when there is a promotion to a post in super-time
scale in the Indian Adn1inistrative Service for considerations of policy,
nMnely, ( l) the length of s.ervice which officers in States have to put in
before they g'et promotion to super-time scale is not uniform; (ii) Most of
the States have got Divisional Commissioners, while some States do not have
this post; (iii) The posts of Secretaries in some States carry pay in &uper-time
scale while in others these posts carry pay in the senior scale, and (iv)
An
officer might be good enough to be a Divisional Co~ssioner, but might
not be good enough to be Joint Secretary to the Govemment of India..
[45G.46B-D]
The process of a,ppointment to the super-time scale is by selection. When
the element of" selection comes in, this pron1otion must be subject only to the
claims of exceptional merit and
suitability, and is not a matrer of right.
Promotion to the super-time scale is, therefore, not a matter of course.
The
Officer must stand the test of suitability and his integrity mllst be beyond
doubt. For this purpose
there is a Senior Selection Committee \Vhich pre-
•
..
l
D. D. SURI v. UNION (Sen, !.)
29
pares a. select list of suitable offic:ers which must be approved by the Union
A
Public Service Commission.
The Senior ·Selection Committee has to prepare
a p'anel of names for each grade and submit the same for approval to the
Union Public Service Commission as well as to the Government of India,
Ministry of Home Affairs.
The select list has to be reviewed and revised
every )l'eair, and the Senior Selection Committee meets annually.
The essence
of holding Selection Committee meeting annually is that each annual proceeding is independent of the other.
That is why a9 soon as the proceedings of
B
th'e new Selection Committee are approved by the Union Public Service Commission,
the proceedings of the earli'er
Selection
Committee
becomes inoperative,
No manner of continuity can, therefore, be imput'ed to the pro-
- ceedings of the various Selection Committees. [48 D-F]
Jn the instant case, the appellant cannot claim as a right the super-time
scale merely cm the basis of his seniority among the members of the Indian
C
Administrative Service belonging to the Orissa cadre, if he was 'consciously'
passed over by the Senior Sel'ection Committee or Government of India,
Ministry of Home Affairs. [48 C,G]
Union of India v. M. L. Capoor, [1973] 3 SCC 836, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1419 of 1971.
D
Appeal by Special Leave from the Judgment and Order dated
24-11-1970 of the Orissa High Court in O.J.C. No. 466/66.
D. D. Suri (In person).
K. K. Venugopal, Addi. Sol. Genl. of India,
R. B. Datar and
Girish Chandra for Union of India.
E
L. N. Sinha and G. S. Chatterjee for the State of Orissa.
The Judgment of the Court was delivered by
SEN J.-This appeal, by special leave, is directed againsl the judgment and order of the High Court of Orissa, dated November 24, 1970,
'fl'
dismissing the appellant's writ petition for fixation of his year of allotment in the Indian Administrative Service as 1942 instead of 1944 and
for giving necessary benefits to him in the fixation of his pay.
The facts of this case are complicated and involved. It is nevertheless necessary to unravel these complicated facts, in order to appreG
ciate clearly what are the questions which must be dealt with in this
appeal. The appellant having been selected by the Special Recruitment Board as an Emergency Recruit from the 'Open Market', was
appointed to the Indian Administrative Service on August 7, 1950 and
all.ocated to the Orissa cadre.
He was born on January 7, 1915, and
joined the Editorial Staff of the Civil & Military Gazette, I..,allore, toB
wards the end of 1938. He continued to serve the Civil & Military
Gazette upto January 7, 19.43 when he joined the Army. During the
30
SUPREME COURT REPORTS
[1980] 1 S.C.R.
A
Second World War, he was granted an Emergency Commission in the
Army w.e f. March 7, 1943 with the rank of Lieutenant w.e.f. June 3,
1948 but with seniority in that rank ~.e.f. September 9, 1944.
11
c
D
E
F
The Government of India, Ministry of Home Affairs, New Delhi,
by lefter dated July 19,
1951, forwarded a statement showing the
years of allotment assigned to various officers borne on the Indian Civil
Administrative cadre of Orissa. The year of allotment assigned to the
petitioner was 1943! for purposes of seniority, on the basis of his particulars as available at that time.
On receiving his representation, the
Ministry of Defence· was requested fo furnish information regarding the
particulars of his pay and allowances drawn by him during the period
December 31, 1944 to December 31, 1948. As the information furnished by the Ministry of Defence did not tally with those furnished by
the petitioner in his application for recruitment to the Indian Administrative Service to the Special Recruitment Board, he was asked to explain
the discrepancy between the particulars furnished by him and those furnished by the MiniStry of Defence. He was also asked to explain why
his seniority should not be calculated on the basis of the information
furnished by the Ministry of Defence according to which his year of allotment should have been 1945. On receiving his reply, the Government
of India, Ministry of Home Affairs, by its letter dated June 11, 1952
decided after due consideration that his 'protection pay' should be treated
as part of his pay, the allowances like the Calcutta Compensatory and
Lodging allowances etc. were not to be counted as part of his pay. It
was further decided that the deficiency of six days in counting the number of completed years of actual experience could not be condoned. The
Government of India, Ministry of Home Affairs, accordingly, fixed the
year of allotment of the petitioner to the Indian Administrative Service
as 1944.
The appellant has had a chequered career. It appears that the
petitioner faced heavy weather in the State of Orissa, from where in
1952 he was sen~ out on deputation to the Government of India i.e.
after he had served the State Government of Orissa for a period of little
G
less than two years.
Thereafter, he remained continuously on deputation with the Government of India for 12t years till he reverted to his
parent State on April 23, 1965, despite the objection of the then Chief
Minister.
He served as
Deputy Secretary to the
Government of
India in the Ministry of Transport from 1955 to 1961.
On April 1,
1961 he proceeded on long leave.
On his return from leave, the petiH
tioner was appointed as the· Salt Commissioner and Managing Director,
Hindustan Salt Ltd. with headquarters at Jaipur.
He held both the
posts until December 23, 1963 and only as Salt Commissioner till
\
\
D. D. SURI v. UNION (Sen, J.)
31
April 7, 1964, whereafter he was reverted to the State of Orissa.
On
his reversion to the State, he was first appointed as Managing Director,
State Warehousing Corporation, a post usually held by an Additional
District Magistrate, but later on allowed to officiate in the super-t'ime
scale as Revenue Divisional Commissioner, Sambalpur w.e.f. October
24, 1965, by reverting an officer junior to him. While the petitio~r
was serving as Commissioner of L'and Reforms, Orissa, a prosecution
was launched against him on November 24, 1967 u/s. 5 (2) read with
s.5(1) (e) of the Prevention of Corruption Act, 1947, on a charge of
having assets to the tune of Rs 3,29,476.90 disproportionate to his
income. There was a search of his house at Cuttack on 3cnd after
November 27, 1967, and he was placed under suspension by the Government of Orissa on November 28, 1967 under Rule 7(3) of the All
India Services (Discipline and Appeal) Rules, 1955. Eventually, the
prosecution ended in an acquittal.
The petitioner was compulsorily
retired by the Go,vemment on June 9, 1971.
On September 1, 1977,
the State Government after the order of acquittal, issued an order
directing that the period from November 29, 1967 i.e. the date of smpension, till June 9, 1971, i.e., the date of his retirement; shall be
treated as period· spent on duty.
It also made consequential directions
in the matter of pay and allowances, treating him in the super-time
grade from November 29, 1967 to April 24, 1968 and, thereafter in
the selection grade, from April 25, 1968 till June 9, 1971.
The questions sought] to be raised by the appellant who appeared
in person, are no doubt of a wide and general importance. The question still remains whether one of them, i.e., regarding the year of allotment need or could be decided at all.
Three questions arise for determination on his submissions : First, whether the Court has the jurisdiction or the power to make a direction requiring the Government of
India, to re-fix the year of allotment of the petitioner as 1942 instead
of 1944 as determined, respecting his seniority in the Indian Administrative Service, from which he has retired; secondly, whether the Fundamental Rules applied to the petitioner, and if so, whether he
was
entitled under P.R. 49 for the period from September 11, 1961
to
December 23, 1963 during which he simultaneously
held both the
posts of the Salt Commissioner and the Managing Director, Hindustan
Salt Ltd. with headquarters at Jaipur in the State of Rajasthan, to the
full salary of one post and additional salary upto a maximum of 50%
of the second post, which salary has been denied to him; and thirdly,
whether the Next Below Ruk implied in P.R. 30 was applimble to the
petitioner while he was serving in connection with the affairs of the
Union. inasmuch as his junior in the Orissa cadre, Shri V. V. AnantA
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
32
SUPREME COURT REPORTS
[1980] 1 S.C.R.
krishnan was appointed in the super-time scale on July 24, 1962 and
he was thus entitled to the benefit of the same and had to be pillced in
the super-time scale w.e.f. July 24, 1962 to June 9, 1971, i.e., the date
of his retirement.
But the whole structure of this argument has no real foundation.
• The Union of India and the State of Orissa filed counter-affidavits
and denied the petitioner's right to relief on any of the grounds.
In its elaborate judgment, the High Court carefully considered all
the aspects and took the view that the considered decision of the Government of India, Ministry of Home Affairs, on the representation of
the petitioner reached after due consideration, cannot be interfered
with.
They had decided not to condone the deficiency of six days in
counting the number of completed years of actual experience, nor take
into account compensatory allowance like Calcutta Compensatory
allowance and the lodging allowance, in calculating his pay, for determining the year of allotment.
Further, the High Court observed that
the failure of the petitioner to explain the discrepancy between the
particulars as furnished by him "and those furnished by the Ministry of
Defence, his failure to produce any records to show what the information of the Ministry of Defence was or even the reply that he had ultimately sent to the Government of India in trying to explain the discrepancy, coupled with the fact that he had neither produced the impugned order of the Government of India fixing 1944 as the year of
allotment, nor had he furnished the details of his pay and allowances
from time to time in respect of the period in question, w."re fatal
to the petitioner's case.
It also observed that in the absence of any
good reason being shown to justify intervention by the Court in the
exercise of its writ jurisdiction, the contention regarding the yca.r of
allotment cannot be accepted.
The High Court also held in the alternative, that the Government
of India had arrived at the correct year of allotment in respect of the
petitioner.
In determining the number of completed years in the
'N' formula, the Government was not duty bound under Rule 3 to relax
the same, and its refusal to condone the deficiency of six days, it could
not be mid that the Government had Dot Jcalt with the case in a just
and equitable manner.
In its view, the benefit claimed by the petitioner, to say the least, would be in direct contravention of the requirement that no fraction of a year was to be taken into account.
On
a proper reading of the 'N' formula, it was not possible to re'ad into the
same the im,position of a duJy on the Government to relax the requirements in appropriate cases, nor would the Government be justified in
1~
,
..
!
) ....
D. D. SURI v. UNION (Sen, J.)
33
making a departure from the plain meaning of the instructions in a particular case, merely on the ground of hardship. According to the High
Court, the word 'pay' in the context of the relevant Rules and Instructions, included enly such allowances as were intended to form an addition to pay and not compensatory allowances like Calcutta City
Allowance and Lodging Allowance etc., i.e., allowances which were
essentially compensatory in ·character and were intended to be reimbursed to the Government servant for the expenditure incurred by
him in the course of hls duty and, therefore, they could not be taken
to form part of 'pay' as referred to in the instructions. It lastly held
that it was not disputed before it with regard to the applicability of
the 'Next Below Ruic', that promotion to a post in super-time scale
involves an element of selection and not mere seniority, and that there
was nothing to show that the Government of India ever failed to apply
their mind to the case of the petitioner in respect of his claim to the
benefit of the 'Next Below Rule', nor was it argued before it that the
Government of India acted ma/a fide or in an arbitrary manner. From
the language of the clarificatory letter of the Secretary of State for
India in Council, dated April 2, 194 7, it was clear that no Officer can
claim as of right promotion to a post carried in super-time scale
under the 'Next Below Rule'. It merely embodies the guiding principles governing promotion to such post which involves an element of.
selection and not mere seniority.
There can be no doubt, in our opinion, agreeing with the decision
of the High Court, that the petitioner was not entitled to any relief.
The High Court has, io our mind, reached a just and correct decision.
A
B
c
E
At the very outset, we tried to impress on the petitioner that his
F'
main relief, i.e. with respect to fixation of the year of allotment according to tl1e 'N' formula, had become infructuous, as he had already
retired irom service and only the subsidiary_ relief i.e., for giving necessary benefits to him in the fixation of hls pay remains which is nothlng
but a monetary claim, for the enforcement of which the remedy lay
elsewhere.
But the petitioner who appeared in person persisted in
(;.
arguing all the points raised particularly the one regarding fixation of
the year of allotment saying that he was doing it for the 'benefit of
others'.
We have, therefore, no alternative but to deal with the
appeal on merits.
We fail to comprehend what relief the petitioner can be granted
Hi
in this appeal.
In his application for grant of special leave to this
Court under Article 136 of the Constitution, the petitioner has cate-
A
B
34
SUPREME COURT REPORTS
(1980] 1 S.C.R.
gorically stated that 'he was no longer interested in the relief for determination of the year of allotment', according to the 'N' formula,
since he was on the verge of retirement, and that the
arguments
advanced on his behalf in the High Court were, therefore, only con·
fined to 'his entitlement to additional pay under F.R. 49', irrespective
of the fact whether he was given the benefit under the 'Next Belaw rule
or not.' In this connection, he avers :..:_
"2. In the said writ petition, your petitioner had prayed
for the following reliefs from the respondents :-
(a) Proper fixation of his year of allotment in the Indian
C
Administrative Service;
0
E
F
G
(b) Grant to the petitioner of the necessary benefits under
Fundamental Rule 49 and 'Next Below Rule' in the
fixation of his pay at a rate higher than the super-time
scale pay of the IAS from 11-9-1961, the date
on
which he took over concurrently the two appointments
of Salt Limited, and at super-time scale pay from
23-12-1963 when he held the appointment of Salt
Commissioner only."
"4. That the petitioner was much less interested ill the
adjudication of the claim stated in sub-para (a) in view of
his ilnpending retirement fronl service".
"the petitioner's main interest was in his claim
stated
in detail in sub-clause ( b) of para 2, particularly its porlion
relating to his entitlement of extra remuneration under Fundamental Rule 49 for holding two independent posts
concurrently, which involved arrears of pay amounting to over
30,0001-." (Emphasis supplied)
In that situation, the petitioner cannot be heard to say that the
Govermnent of India had not arrived at a correct decision in assigning 1944 as the year of allotment to him.
Even if he were entitled
to do so, the contention meocits no consideration.
The learned Additional Solicitor-General has, at
our
request,
placed before us all the relevant records of the Ministry of Home
Affairs, Ministry of Finance _and the Ministry of Law & Justice which
bare upon the questions at issue.
On a perusal of these records, it is
ff
quite clear that the Government of India evolved uniform policy as a
matter of principle to deal with such questions.
In the light of the
set principles, all the demands of the appellant were considered at
•
f
D. D. SURI v. UNION (Sen, !.)
35
each stage, and found that they could not be, accepted,
keeping m
A
view the desirability of uniformity of policy in such matters.
In support of the contention regarding the year of allotment, the
appellant's submission is twofold, namely, (i) the
Government of
India were in error in not condoning the deficiency of six days in
reckoning the completed years of his service after attaining the age
of 25 years.
He has wrongly been given credit for only 8 years instead of 9 years as there was a short fall of six days to complete 9
years, which short fall should have been waived by the Government,
and (ii) he being a regular Army Olficer, the definition of 'pay' in
F.R. 9(21) (b) was attracted, so that in determining the year of
allotment, 'pay' would also include allowances like Lodging Allowances.
We are afraid, none of the contentions can prevail.
It is common ground that as regards Emergency Recruits from the
'Open Market', the year of allotment was to be determined according
to the 'Open Market Emergency Recruitment Scheme', embodied in
the instructions of the Government of India for the preparation of a
common gradation list for the officers of the Indian Civil Service cadre
in each State issued on July 7, 1950. The relevant instructions adverted to, so far as material, (hereinafter referred to as 'N' formula)
read as follows :-
"IV Emergency Recruits from the 'Open Market' :
These otficers should be given an year of allotment on
the basis of the following rules below :
(1) The number of completed years of actual experience
of the officers after attaining the age of 25 and upto
B
c
D
E
the 31st December, 1948 as certified by the Special ReF
cruitment Board 'l';ill be the period of
previous
experience to be taken into account.
This period will be divided into two parts, N1 and N2
as below :
(2)
(a) N1 means the period of continuous employment
on· a pay or income of not less than Rs. 800 per
month between 31st December, 1944, and the 31st
December, 1948, inclusive.
(b) N2 means the entire period of previous experience
to be taken into account, exclusive of Nl.
The year of allotment in each case will be 1949-Y,
where Y = Nl+t of N2."
G
H
36
SUPREME COURT REPORTS
(1980) 1 S.C.R.
A
These instructions .form a part of counter-affidavit filed on behalf
B
of the Union of India and are printed in the All India Services Manu.
al, Second Edition, at p. 774, with the heading "Executive Instructions/Orders issued by the Government of India under the
Indian
Administrative Service (Regulation of Seniority) Rules, 1954".
The year of allotment : 'N' formula :
•
Rule 3 of the Indian Administrative Service (Regulation of Senio-
'><.
c
rity) Rules, 1954, so far as relevant, reads :-
"3. Assignment of year of allotment-(!) Every officer
shall be assigned a year of allotment in accordance
with
the provisions hereinafter contained in this rule.
(2) The year of allotment of an officer in service at the
commencement of these rules shall be the same as has been
assigned to him or may be assigned to him by the Central
Government in accordance with the orders and instructions
D
in force immediately ~fore the commencement of these
rules."
Even according to the appellant, he is not entitled, under the 'N'
formula as it stands, to a credit of more than 8 years. If that be so,
the High Court quite properly declined to exercise its extra-ordinary
E
jurisdiction under Article 226 of the Constitution inasmuch as no writ
or direction could be issued, in a matter which was essentially in the
discretion -of the Government, to re-fix his seniority by giving credit
for 9 years instead of 8 years as provided for, as admittedly the relevant instructions require 'completed years of actual experience'.
F
Normally, the decision of the Government of India assigning a
year of allotment to a particular officer under Rule 3 of the Indian
Administrative Service (Regulation of Seniority) Rules, 1954, or in
accordance with orders and instructions issued by the Central Government in that behalf before the commencement of these Rules, is final
and cannot be interfered by the Courts under Article 226 of the ConG
stitution unless such decision was capricious or arbitrary or in breach
of the said Rules. The same principle should apply to the assignment
of a year of allotment under the 'N' formula.
The contention that the Government of India should have condoned
the shon fall of six days by relaxation of the relevant Rules under the
e
powers vested in it by the All India Services (Conditions of ServiceResiduary Matters) Rules, 1960, can hardly be accepted.
These
Rules were not in force when the Government of India, Ministry of
A
·I
I
D. D. SURI v. UNION (Sen, !.)
37
_,
Home Affairs, by their letter dated July 19, 1951 issued a statement
showing their years of allotment assigned to officers borne on the
Indian Civil Administrative Service cadre of Orissa, wherein the year
~
'
•
'"'
of allotment assigned to the petitioner was 1943:!-, or even at the
time when the Mi1'1istry of Home Affairs by its letter dated June 11,
1952 rejected his representation in that behalf, while revising his year
of allotment to 1944.
The relevant records of the Government of
India, Ministry of Home. Affairs disclose that the Government of
India adopted a uniform policy in this regard and short falls of even
less than 6 days have not been condoned so that there could be uniformity of taking note of 'completed years of service', irrespective of
the short fall of number of days, in calculating the year of allotment
in every case under the 'N' fonnnla.
The question of relaxation was considered at the highest level as
B
c
l
admitted by the petitioner himself.