# KESHA V CHANDRA JOSHI AND ORS. ETC v. UNION OF INDIA AND ORS

- **Citation:** [1990] Supp. 2 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1990-11-06
- **Bench:** Ranganath Misra, M.M. Punchhi, B K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kesha-v-chandra-joshi-and-ors-etc-v-union-of-india-and-ors-10894
- **Pages:** 21

## Headnote

U.P. Forest Service Rules, 1952: Rules J(h), 5(a)(b)-Appendix
'A' & 'B'-6, 24 and27.
·
·
Service Law-Seniority-Assistant Conservators of ForestDirect recruits and promotees-Fixation of seniority-Appointment of C
promotees on ad hoc basis as a stop gap arrangement and dehors the
rules-Promotees holding posts continuously for a long periodContinuous length of ad hoc service from the date of initial appointment-Whether should be counted towards seniority.
Rules relating to 'Conditions of service'-Power of Governor to
relax-Consultation by Governor with public Service Commission is
mandatory-Word 'may' in Rule 27 has been used in the context of
discharge of duty-It must be read as 'shall':
D
'Rules of recruitment' and 'Conditions of service'-Distinction
E
between-Rule 5(a)(b) and Appendix 'A' & 'B' are basic rules of
recruitment and not subject to Rule 27.
Promotees appointed on ad hoc basis and dehors the RulesAllowing the promotees to officiate for a long period-Whether
appointment should be deemed to have been made in relaxation of the
f
Rules.
Under U.P. Forest Service Rules, 1952 recruitment to the posts of
Assistant conservators of Forest was made from two sources, namely,
by direct recruitment, under Rule 5(a) read with Appendix' A', and by
promotion of permanent Forest Rangers, under Rule 5(b) read with
G
Appendix 'B'. Rule 6 of the rules provided that not more than 25% of
the total number of posts shall be filled by promotion.
The petitioners (promotees) were appointed to the posts of.Forest
Rangers. Due to pendency of legal proceedings there was no direct
recruitment to the posts of Assistant Conservators of Forest under Rule
H
573
A
B
c
D
E
F
574
SUPREME COURT REPORTS
[ 1990] Supp. 2 S.C.R.
5(a) till 1974 and even thereafter. The petiiioners-promotees were
appointed on the posts of Assistant Conservators of Forest on ad hoc
basis, between March 13, 1974 and November 21, 1981 subject to direct
recruitment and they were continuing temporarily on ad hoc basis for
varying period of 5 to 12 years. With effect from 1st May, 1975 the ratio
of 25% recruitment of promotees under Rule 6 was increased to 33
1/3%. lo the meanwhile the direct recruits under Rule S(a) were
appointed on probation to substantive vancancies. When their claim
was ripe for consideration as Deputy Conservators of forest, the
petitioners claiming seniority over them filed Writ Petitions in this
Court contending (i) that though the promotees were appointed on ad
hoc basis due to non-availability of direct recruits yet they were continuing for well over S to 12 years discharging the same duties, drawing
the same scale of pay without any reversion; their posts were not
fortuitous, nor stop gap. Consequently their entire continuous length of
service from the dates of their initial promotion should be counted
towards their seniority; (ii) since the promotees were allowed to
officiate for a long period they must be deemed to have been appointed
in relaxation of the rules of recruitment under Rule 27 of the ntles by
the Governor.
,
On behalf of the direct recruits it was contended (i) since the
appointment of the promotees was on ad hoc basis and not on the basis
of merit as per rules they have no right to the posts. Consequently the
service rendered by them from the dates of initial promotion till date of
substantive appointment being fortuitous cannot be counted towards
seniority; (ii) since the promotees were appointed in excess of the prescribed quota in Rule 6, they should be pushed down to the vacancies
that bad arisen in each year above the direct recruits as per the ratio as
the promotees were not entitled to claim seniority from the initial dates
of their respective promotions; (iii) that the power of relaxation in Rule
27 was only in respect of conditions of service and not relating to
recruitment or promotion.
Disposing the petitions, this Court,
G
HELD: 1. Under rule S read with Rule 3(h) of the U.P. Forest·
Service Rules, 1952 a member of the service

## Text

_Characters 0–39,976 of 51,051. This is a partial read: ask again with offset=39976 for what follows._

KESHA V CHANDRA JOSHI AND ORS. ETC.
A
v.
UNION OF INDIA AND ORS.
NOVEMBER 6, 1990
[RANGANATH MISRA, CJ, M.M. PUNCHHI AND
B
K. RAMASWAMY, JJ.)
U.P. Forest Service Rules, 1952: Rules J(h), 5(a)(b)-Appendix
'A' & 'B'-6, 24 and27.
·
·
Service Law-Seniority-Assistant Conservators of ForestDirect recruits and promotees-Fixation of seniority-Appointment of C
promotees on ad hoc basis as a stop gap arrangement and dehors the
rules-Promotees holding posts continuously for a long periodContinuous length of ad hoc service from the date of initial appointment-Whether should be counted towards seniority.
Rules relating to 'Conditions of service'-Power of Governor to
relax-Consultation by Governor with public Service Commission is
mandatory-Word 'may' in Rule 27 has been used in the context of
discharge of duty-It must be read as 'shall':
D
'Rules of recruitment' and 'Conditions of service'-Distinction
E
between-Rule 5(a)(b) and Appendix 'A' & 'B' are basic rules of
recruitment and not subject to Rule 27.
Promotees appointed on ad hoc basis and dehors the RulesAllowing the promotees to officiate for a long period-Whether
appointment should be deemed to have been made in relaxation of the
f
Rules.
Under U.P. Forest Service Rules, 1952 recruitment to the posts of
Assistant conservators of Forest was made from two sources, namely,
by direct recruitment, under Rule 5(a) read with Appendix' A', and by
promotion of permanent Forest Rangers, under Rule 5(b) read with
G
Appendix 'B'. Rule 6 of the rules provided that not more than 25% of
the total number of posts shall be filled by promotion.
The petitioners (promotees) were appointed to the posts of.Forest
Rangers. Due to pendency of legal proceedings there was no direct
recruitment to the posts of Assistant Conservators of Forest under Rule
H
573
A
B
c
D
E
F
574
SUPREME COURT REPORTS
[ 1990] Supp. 2 S.C.R.
5(a) till 1974 and even thereafter. The petiiioners-promotees were
appointed on the posts of Assistant Conservators of Forest on ad hoc
basis, between March 13, 1974 and November 21, 1981 subject to direct
recruitment and they were continuing temporarily on ad hoc basis for
varying period of 5 to 12 years. With effect from 1st May, 1975 the ratio
of 25% recruitment of promotees under Rule 6 was increased to 33
1/3%. lo the meanwhile the direct recruits under Rule S(a) were
appointed on probation to substantive vancancies. When their claim
was ripe for consideration as Deputy Conservators of forest, the
petitioners claiming seniority over them filed Writ Petitions in this
Court contending (i) that though the promotees were appointed on ad
hoc basis due to non-availability of direct recruits yet they were continuing for well over S to 12 years discharging the same duties, drawing
the same scale of pay without any reversion; their posts were not
fortuitous, nor stop gap. Consequently their entire continuous length of
service from the dates of their initial promotion should be counted
towards their seniority; (ii) since the promotees were allowed to
officiate for a long period they must be deemed to have been appointed
in relaxation of the rules of recruitment under Rule 27 of the ntles by
the Governor.
,
On behalf of the direct recruits it was contended (i) since the
appointment of the promotees was on ad hoc basis and not on the basis
of merit as per rules they have no right to the posts. Consequently the
service rendered by them from the dates of initial promotion till date of
substantive appointment being fortuitous cannot be counted towards
seniority; (ii) since the promotees were appointed in excess of the prescribed quota in Rule 6, they should be pushed down to the vacancies
that bad arisen in each year above the direct recruits as per the ratio as
the promotees were not entitled to claim seniority from the initial dates
of their respective promotions; (iii) that the power of relaxation in Rule
27 was only in respect of conditions of service and not relating to
recruitment or promotion.
Disposing the petitions, this Court,
G
HELD: 1. Under rule S read with Rule 3(h) of the U.P. Forest·
Service Rules, 1952 a member of the service means a person, be it direct
recruit under rule 5(a) or promotee under Rule S(b), appointed in a
substanfiVe capacity to the service as per the provisions of the rules. lo
order to become a member of the service be must satisfy two conditions,
namely, the appointment must be in substantive capacity and the
H appointment has to be to the post in the service according to rules and
•
K.C. JOSHI v. U.0.l.
575
within the quota to the substantive vacancy. There exists marked dis·
A
tinction between appointment in a substantive capacity and appointment to the substantive post. Therefore, the membership to the service
must be preceded by an order of appointment to the post validly made
by the Governor. Then only he becomes member of the service. Any
other construction would he violation of the rules.
B
2. Employees appointed purely on ad hoc or officiating basis due
to administrative exigencies, even though continued for a long spell, do
not become the members of the service unless the Governor appoints
them in accordance with the rules and so they are not entitled to count
the entire length of their continuous officiating or fortuitous service
towards their seniority. Reckoning continuous officiating of ad hoc c
promotion would enable the less privileged to excel their latent capabilities in the cadre post.
Narendra Chadha v. Union of India, [1986] 1S.C.R_.211; Baleshwardas v. State of U.P., [1981] 1 S.C.R. 449; N.K. Chauhan v. State of
D
Gujarat, [1977] 1 S.C.R. 1037 and Direct Recruits Class II Engg. Officers' Association v. State of Maharashtra, [1990] 2 S.C.C. 715; A.I.
Patel & Ors. v. State of Gujarat & Ors., A.I.R. 1965 Guj. 23 (FB):
referred to.
Masoor Akhtar Khan & Ors. v. State of M.P. & Ors., J.T. 19903
E
S.C. 295; followed.
A.K. Kraipak & Ors. etc. v. Union of India & Ors., [1970] 1
S.C.R. 457; cited.
2.1 In the instant case due to exigencies of service temporary
F
promotions against substantive vacancies were made. It is undoubted
that preceding their promotion, an ad hoc Committee had considered
the cases of the promotees. Admittedly seniority subject to rejection of
unfit was the criteria, followed in the selection. The selection was,
therefore, in defiance of and dehors Rule 5(b) read with Appendix 'B'.
The promotions were on ad hoc basis pending direct recruitment and
G
were in excess of the quota prescribed under rule 6. By no stretch of
imagination it could be said that the promotions were made to a substantive post in accordance with the mies. Therefore, the promotees do
not hold the post in substantive capacity. Accordingly their continuous
"'__,'
length of ad hoc service from the date of initial appointment cannot be
counted towards seniority.
H
A
B
c
576
SUPREME COURT REPORTS
[1990] Supp. 2 S.C.R.
3. The pre-requisite of the right to inclusion in a common list of
seniority is that all those who claim that right must broadly hear the
same characteristics. Fortuitous circumstances of their holding the
grade post carrying the same designation or scale of pay or discharging
the same duty would not justify the conclusion that they being to the
same cadre.
4. An officer appointed by promotion in accordance with Rules
and within quota and on declaration of probation is entitled to rackon
his seniority from the date of promotion and the entire length of service,
though initially temporary, shall be counted for seniority. Ad hoc or
fortuitous appointments on a temporary or stop gap basis cannot be
taken into account for the purpose of seniority, even if the appointee
was subsequently qualified to hold the post on a regular basis. To give
benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be
treated as equals. When promotion is out side the quota, the seniority
would be reckoned from the date of the vacancy within the quota,
D
rendering the previous service fortuitous. The previous promotion
would be regular only from the date of the vacancy within the quota and
seniority shall be counted from that date and not from the date of his
earlier promotion or subsequent confirmation. 1n order to do justice to
the promotees it would not be proper to do injustice to the direct
E
F
recruits. The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate
from the rule due to administrative exigencies or expediency. The result
of pushing down the promotees appointed in excess of the quota any
work out hardship but it is unavoidable and any construction otherwise
would be illegal, nullifying the force of statutory rules and would offend
Articles 14 and 16(1).
5. Since the rules are legislative in character, they must harmoniously be interpreted as a connected whole giving life and force to each
word, phrase and rule and no part thereof should be rendered nugatory
or a surplusage. Resort to iron out the creases could be had only when
the constrnction of the relevant rule, phrase or word would lead to
G
unintended absurd results.
5.1 In an appropriate case if the court rmds that wanton or deliberate deviation from the roles was made by the implementing authority the court should call upon them to explain the reasons therefor and
in the a6sence of proper explanation fo[lhcoming castigate the authoH
rity and pass strnctures condemning the actions which would discipline
•
·I
K.C. JOSHI v. U.0.l.
577
the authorities to adhere to the rules. Undue latitude and acquiesce
thereto would not only defeat the due enforceme~t of the rules but also
create disorder and frustration among the members of the service.
5.2 Rule 27 of the U.P. Forest Service Rules, 1952 goves power to
the Governor that if he is satisfied that the operation of any rule regarding conditions of service of the members caused undue hardship in a
particular case; he may consult the Public Service Commission;
notwithstanding anything contained in the Rules and dispense with or
relax the requirement the conditions of service and extend the necessary
benefit as Is expedient so as to relieve hardship and to cause just and
equitable results. The word "may" consult the Commission has been
used in the context of discharge of statutory duty. The Governor is
obligated to consult the Public Service Commission. Therefore, the
word "may" must he construed as to mean "shall" and it is mandatory
on the part of the Governor io consult the Public Service Commission
before exempting or relaxing the operation of rule regarding conditions
of the service of a member to relieve him from undue hardship and to
cause just and-equitable results.
5.3 There is a distinction heteen "rules of recruitment" and
''conditions of service''. The rules relating to recruitment to the service
either under rule 5(a) or 5(b) or the manner of recruitment to service as
per Appendix 'A' or 'B' are basic rules of recruitment to service. They
are not subject to rule 27.
Narendra Chadha v. Union of India & Ors., [1986) 1 S.C.R. 211;
referred to.
CIVIL APPELLATE JURISDICTION: Writ Petition Nos. 6261
A
B
c
D
E
86 & 660/87.
F
(Under Article 32 of the Constitution of India).
Gobinda Mukhoty, R.K. Garg, and D.K. Garg for the Petitioners.
Prithviraj, P.P. Rao, Sr. Advocates, Ms. S. Dikshit, Ms. Sushma
G
Suri, Prashant Bhusnan and Madan Lokur, for the Respondents.
Shashi Kant, A.K. Jain and Sudhershan Singh (NP) Respondents
in person.
The Judgment of the Court was delivered by.
H
A
B
c
D
E
578
SUPREME COURT REPORTS
[1990] Supp. 2 S.C.R.
K. RAMASWAMY, Jf. The vexed question of inter se seniority
between promotees and direct recruits has once again been brought to
the force at the behest of the petitioners in these writ petitions filed
under Art. 32 and respondents Nos. 4 to 99 in the first writ petition,
for short 'promotees' and the respondents Nos. JOO to 139 in the first
writ petition, for short 'direct recruits' as Asstt. Conservators of
Forest. The Governor of U .P. exercising the power under the proviso
to Art. 309 of the Constitution issued the U.P. Forest Services Rules,
1952, for short 'the rules' which became effective from January 2,
1952. The promotees are confirmed Forest Range Officers in U.P.
Forest Subordinate Service which is a feeder source for recruitment by
promotion under Rule S(b) of the rules as Asstt. Conservator of
Forest. Rule 4 constitutes and fixes the cadre strength of Chief Conservator of Forest; Conservator of Forest; Deputy Conservator of
Forest and Asst!. Conservator of Forest. By fiction of law in Note to
Rule 3(h) all the members of the old provincial Forest Service became
members of the initially constituted service. It would appear that after
amalgamation no recruitment under rule 5( a) of the posts of Assistant
Conservator of Forest was immediately made. In May; 1966, the selection to the posts of Asst. Conservator of Forest was made but was
ultimately vacated by this Court in A.K. Kraipak & Ors. etc. v. Union
of India & Ors., [1970] 1 SCR 457 and the connected matters. The
process of recruitment was again started in the year 1972 but was
stayed by the High Court of Allahabad in W.P. No. 119 of 1972. The
list of the recruits of 1966 could not thus be finalised till 1975. With
effect from May 1, 1975, the ratio of 25% recruitment of promotees in
Rule 6 was increased to 33 I/3rd per cent. The Governor also issued
"promotion by selection in consultation with the Public Service Commission Procedure Rules, 1970". In the meanwhile the number of
posts of Asstt. Conservator, Forest was determined. As there was no
F
direct recruitment under Rule 5(a) till 1974 and even thereafter, promotees were appointed, admittedly on ad-hoc basis, between March
13, 1974 and November 21, 1981, subject to direct recruitment and
were posted as Asstt. Conservator, Forest. Thus they are continuing
temporarily on ad-hoc basis though for varying periods of 5 to 12
years. In the meanwhile, the direct recruits under mle 5(), had underG
gone two years training in the Indian Forest College, Dehradun and
obtained diploma therefrom. In 1976, they were appointed on probation to substantive vacancies. When their claim was ripe for consideration as Deputy Conservators of Forest in the Indian Fore~t Service, the
petitioners claiming seniority over them filed the writ petitions seeking
inter alia for the issue of (a) a writ of mandamus to declare Rule 3(h)
H
and Rule 24 of the Rules relating to rcconing of seniority from the date
'
t--
·'
K.C JOSHl'v. U.0.L [K. RAMASWAMY, J.)
579
of the substantive appointment as illegal and violative of Arts. 14 and
16 of the Constitution of India; (b) to declare Rule 4 of the Indian
Forest Service (Recruitment) Rules, 1966 and Regulation 5 of Indian
Forest Service (Appointment by promotion), Regulation 1966 as vio-
. lative of Arts. 14 and 16 etc., the details of which are not material since
the petitioners have given up their challenge before us. The only plea
. put forth is that the promotees should be declared to have been regularly appointed from the respective dates of their initial promotion as
Asst!. Conservators with all consequential benefits. The contention of
M/s. Mukhoty and Garg, their learned Senior counsel is that though
the promotees were appointed on ad-hoc basis due to non-availability
of direct recruits to the vacant posts of Asst!. Conservator of Forest,
they are continuing for well over 5 to 12 years discharging the same
duties, drawing the same scale of pay without any reversion. The posts
held by the petitioners are not fortuitous, nor stop gap. The entire
continuous length of service from the dates of their initial promotion
should be counted towards their seniority. They strongly relied on
Narendra Chadha v. Union of India, [1986] 1 SCR 211; Baleshwardas
v. State of U. P., [ 1981] 1 SCR 449; N, K. Chauhan v. State of Gujarat,
[ 1977] 1 SCR 1037 and proposition 'B' in paragraph 47 in Direct
Recruits Class II Engineering Officers' Association v. State of
Maharashtra, 4(1990] 2 SCC 715, page 47, Prop. 'B' for short 'Direct
Recruits' case' in their support.
Shri P.P. Rao, learned counsel for the direct recruits contended
that the appointment of th~ promotees admittedly being ad-hoc, they
had not have any right to the posts. Their appointments, not being on
the basis of merit as per rules, did not confer any right to posts. Their
seniority has to be counted only from the dates of substantive appointment. The service rendered from the dates of initial promotion till date
of the substantive appointment should be treated as fortuitous. The
delay to make direct recruitment had been occasioned only on account
of the pendency of the proceedings right from Kraipak's case in
Allahabad High Court till the present group of writ petitions. Since
promotees were appointed in excess.of the preseiibed quota in Rule 6,.
they should be pushed down to the vacangi~s that had arisen in each
year above the direct recruits as per the ratio as the promotees are not
entitled to claim seniority from the initial dates of their respective
promotions. In support thereof he relied on proposition 'A' of
paragraph 47 of the Direct Recruits' case and the ratio in Masoor
Akhtar Khan & Ors. v. State of Madhya Pradesh & Ors., IT 1990 3 SC
295. He also contended that the power of relaxation in Rule 27 is only
in respect of conditions of service and not relating to recruitment or
,
A
B
c
D
E
F
G
A
B
c
D
580
SUPREME COURT REPORTS
[1990) Supp. 2 S.C.R.
promotion. He placed reliance on A.J. Patel & Ors. v. State of Gujarat
& Ors., AIR 1965 Guj. 23 (F.B.)
Since the rules are legislative in character, they must harmoniously be interpreted as a connnected whole· giving life and force to
each word, phrase and rule and no part thereof should be rendered
nugatory or a surplusage. Resort to iron out the creases could be had
only when the construction of the relevant rule, phrase or word would
lead to unintended absurd results. To accord just solution to this, we
have set out only the relevant rules. Rule 3(h) of the Rules defines
"Members of the Service" to man "a person appointed in a substantive
capacity under provisions of these rules" or of rules or orders in force
previous to the introduction of these rules, "to a post in the cadre of
the service". The rules shall not apply to the members of the Indian
Forest Service. Rule 3(e) defines direct recruitment, which means
recruitment in the manner prescribed in clause (a) of Rule 5 of these
Rules. Rule 5 in Part III indicates sources and methods of recruitment
as Asstt. Conservator of Forest service shall be made-
(a) by direct recruitment of candidates who having been
selected in the manner prescribed in Appendix 'A' for admission to the Superior Forest Service Course of the Indian Forest
College, Debra Dun, have obtained a Diploma after having
completed successfully a training of two years at the said
E
college;
(b) by promotion in the manner prescribed in Appendix 'B' to
these rules of all permanent Forest Rangers of the Subordinate Forest Service who-
(i) hold a certificate of the Forest Rangers' College, Debra
Dun and
(ii) have put in eight years' services as Forest Ranger
including continuous officiating and temporary service.
G
Rule 6 provided that not more than 25 per cent of the total
H
number of posts in the service shall be filled up by promotion and the
ratio was enhanced from 1/4 to 1/3 w.e.f. January 1, 1975. On amendment, the Rule read thus:
"Number of appointments to be made-The Governor
shall decide the number of vacancies to be filled from each
•
I
K.C JOSHI v. U.0.1. [K. RAMASWAMY, J.]
581
of the two sources specified in rule 5 provided that not
more than 33 1/3 per cent of the total number of posts in
the Service shall be filled from the source mentioned in
clause (b) of rule 5. In deciding the number of vacancies to
be filled from each of the two sources each year, regard
shall be paid to the relative number of promoted and
directly recruited officers in the cadre of the Service. The
above percentage will be observed if suitable officers are
available for promotion to that extent".
Part V provides the procedure for appointment, probation and
confirmation.
A
B
Rule 12 prescribes the procedure for appointment. A person C
finally selected for appointment to the Service in the manner prescribed in the foregoing rules shall be appointed by the Governor
thereto (unless he subsequently becomes disqualified for appointment) on the occurrence of a substantive vacancy. The order in which
such appointments made shall be:-
o
(a) in the case of candidates appointed by recruitment, as indicated in the fourth proviso to Rule 24; and
(b) in the case of candidates recruited by promotion, according
to their seniority in the Subordinate Forest Service.
E
Sub-Rules (2) and (3) are not necessary, hence omitted.
Rule 14 prescribes the period of probation, discharge, etc. All
appointments to the service in a substantive vacancy shall be made on
· probation. The period of probation shall be two years and will count 'F
from the date of taking over charge of appointment, provided that the
Governor may extend the period of probation. Any such extension
shall specify the date upto which the extension is granted. Sub-rules
(2) and (3) are not necessary.
Rule 15 prescribes passing of departmental examination presG
cribed in that regard as a condition for confirmation.
Rule 16 empowers confirmation thus: (a) A person on probation
shall not be confirmed in his appointment unless:
(i) he has completed the prescribed period of probation;
ff
58~
A
SUPREME COURT REPORTS
[1990] Supp. 2 S.C.R.
(ii) he has passed all the tests prescribed in Rule 15 or has been
exempted from passing such tests; and
(iii) the Governor is satisfied that he is fit for confirmation in
other respects.
B
Clause (b) of Rule 16 is not necessary for the purpose of its case,
c
D
E
F
G
H
hence omitted.
Rule 19 prescribes pay of the direct recruits during probation.
Note to Rule 19 postulates the date of service of the direct recruits
thus:
• \ The date of service of an officer under clause (a) to Rule 5
s'hall begin from the day following the day on which· he
obtained his diploma in Forestry 0f the Indian Forest
College, Debra Dun, if such officer joins his appointment
within ten days from the date of issue of the Diploma.
Rule 24 adumbrates to fix seniority thus:
The seniority of officers on their appointment to the
Service "shall be determined according to the date of the
order of their substantive appointment to the Service."
Provided that if the order appointment of two or more
candidates bears the same date, their seniority inter se shall
be determined according to the order in which their
appointment has been notified;
Proviso 2 and 3 are not relevant hence omitted.
Proviso 4-Provided further that relative seniority of
members of the Service who are appointed by direct re,
cruitment shall be in accordance, with the order of merit in
which they are placed on passing out Of the Indian Forest
College at Debra Dun, or any other institution at which
arrangements are made for training.
Proviso 5-Provided further that candidates by direct
recruitment and who are recruited by promotion in the
same year, the latter shall be placed above the former in
the seniority list.
,_.
~
K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.]
583
Appendix 'A' and 'B' are integral parts of Rule 5. Appendix 'A'
A
relates to the direct recniits and Appendix 'B' relates to the promotees. Appendix 'A' enumerates the procedure to notify the vacancies for direct recruitment to the post of Assistant Conservator Forest
by the Public Service Commission, Uttar Pradesh nd the manner of
Selection,
•
B
Para 16 postulates thar on obtaining Diploma in Forestry at the
end two years' Course at the Debra Dun Forest Training College, the
candidate will be appointed as Assistant Conservator of Forest.
Appendix 'B' prescribes the procedure "for recruitment by promotion
in terms of Rule 5(b )". Paragraph 1 says thus:
"For the purpose of recruitment under clause (b) of Rule 5, c
a selection strictly on merit shall be made from amongst
Forest Rangers eligible under the rules for prvmotion."
Then the procedure was prescribed for selecting the candidates by
promotion, the deai!s of which are not material. Para 4 postulates that D
the "names shall be arranged in the.order of merit and not in accordance with seniority". Pargraph 5 enjoins that the Chief Conservator
of Forest shall also draw up a seupplementary list containing names of
officials whom he considers suitable for "officiating" or "temporary
appointments" during the course of the year keeping in view the possible approximate vacancies and the candidates recommended by him to
be suitable. shall be approximately eqiialto the vacancies expected to
E
occur during the course of the year.
Paragraph 7 prescribes the procedure for considering the claims
of the Forest Rangers. The list of eligible candidates drawn by the
Chief Conservator of Forest would be forwarded to the Public· Service F
Commission. The Secretary to the Government in Forest Department
in consultation with the Commission shall fix a date and call those
candidates for intervie",. by a Selection Committee consisting of a representative of the Public Service Commission, who presides over it,
the Secretary to the Govt. in the Forest Department and the Chief
Conservator of Forests or any other superior officer of the DepartG
ment whom the Government nominates. The Public Service Commission shall draw a list of candidates in order of merit and forward it to
the State Government. The Governor shall appoint the Forest Range
-~
Officers as per the list as Asstt. Conservators of Forest on probation.
On passing the prescribed tests within.two years or extended penod, if
any, of probation or on exemption, the Governor shall consider the H
A
B
c
D
E
F
G
584
SUPREME COURT REPORTS
[1990] Supp. 2 S.C.R.
suitability for confirmation and to pass an order confirming the promotee in a substantive capacity to a substantive vacancy.
A close readin~ of the fasciculus of rules clearly posits that
recruitment as Asstt. Conservator of Forest shall be from two sources,
namely, by !lirect recruitment and by promotion of permanent Forest
Rangers of the Subordinate Forest Service. Qualifications have been
provided for recruitment. The direct recruit, on selection by the Public
Service Commission i; required to undergo training for two years in
the College as a part of the selection and on obtaining Diploma, the
Governor is ao appoint him to the substantive post of Asstt. Conservator of Forest on probation. The service of the direct recruits is to
be counted from the date of discharging the duties of the post and on
successful completion of the probation within two years or extended
period and passing the tests and on confirmation thereof by the Governor, he becomes a member of the service in substantive capacity.
Similarly the promotees shall be recruited in accordance with Rule
· 5(b) and the procedure prescribed in Appendix 'B'. The Chief Conservator of Forest would draw up the list of permanent Forest Range
Officers eligible for pomotion strictiy on the basis of merit. The Commitee headed by the member of the Public Service Commission would
interview them and prepare the list of the selected candidates on the
basis of merit and ability, which would be forwarded to the Government. On receipt thereof the Governor would appoint the Forest
Range Officers as Asstt. Conservator of Forest on probation in terms
of the ratio prescribed in Rule 6. The selection shall be based on merit
and ability. Ahe seniority of Forest Rangers inter se is to be considered
only where the merit and ability as Forest Rangers are approximately
equal. Thus even the junior most meritorious Forest Range Officer
would steal a march over his seniors and would earn his seniority as
Asstt. Conservator of Forest. The promote t shall also be on probation
for a period of two years and shall also have to pass the prescribed tests
unless exempted. On successful completion and the Governor after
satisfying himself that the appointee is also otherwise fit to be confirmed, makes an order. Then only the promotee becomes a regular
member of the service in a substantive capacity.
, The heart of the controversy lies in the question as to when a
person is appointed to a post in the service in a substantive capacity
within the meaning of rule 3(h) read with Rules 5 and 24 of the Rules.
Under Rule 5 read with Rule 3(h) a member of the service means a
person, be it direct recruit under rule S(a) or promotee under Rule
H
S(b ), appointed in a substantive capacity to the service as per the
K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.]
585
provisions of the rules. In order to become a member of the service
he/they must satisfy two conditions, namely, the appointment must be
in substantive capacity and the appointment has to be to the post in the
service according to rules and within the quota to a substantive
vacancy. There exists marked distinction between appointment in a
substantive capacity and appointment to the substantive post. Therefore, the membership to the service must be preceded by an order of
appointment to the post validly made by the Governor. Then only
he/they become member/members of the service. Any other construction would be violation of the rules.
A
B
The nai rative of facts and attendant circumstances would indicate that the Government at no point of time abandoned direct recruit- .
ment under Rule 5(a), nor omitted to fix inter se seniority. No blame in
C
this regard should lie at the doors of the Govt. as due to recourse to
judicial process this situation crept up. It is not the ca~e of the promotees that Government held out any promise that the promotees
would be regularised from the respective dates of promotion. On the
other hand the Government's positive act of adjusting the promotees
D
in excess of the quota under Ruic 6 in the vacancies that arose in the
succeeding years belie such a situation.
From the above back-ground two questions would emerge: (i) as
to when promotees become members of the cadre of Asstt. Conservators in a substantive capacity in accordance with the rules and (ii)
E
whether the entire length of services from the date of initial appointments should be counted towards their seniority. The pre-requisite of
the right to inclusion in a common list ofseniority is that all those who
claim that right must broadly bear the same characteristics. Fortuitous
circumstances of their holding the grade post carrying the same desig·
nation or scale of pay o,r discharging the same duty would not justfy the
p
conclusion that they belong to the same cadre. Due to exigencies of
service temporary promotions against substantive vacancies were
made. It ia undoubted that preceding their promotion, an ad-hoc Committee had considered the cases of the promotees. Admittedly seniority subject to rejection of unfit was the criteria, followed in the selection. The selection was therefore, in defiance of and dehors Ruic S(b)
G
read with Appendix 'B'.
In a democracy governed by Rule of Law, it is necessary for the
appropriate governance of the country that the political executive
should hve the support of an efficient bureauracy. Our Constitution
enjoins upon the execl!tive and charges the legislature to lay down the
H
586
SUPREME COURT REPORTS
[ 1990] Supp. 2 S.C.R.
·'
A
policy of administration in the light of the directive principles. The
executive should implement them to establish the contemplated
egalitarian social order envisaged in the preamble of the Constitution.
It is seen that the appointments of the promotees were made in
batches year-wise. The rule postulates that appointment shall be
B strictly as per merit after interview arranged in order by the Public
Service Commission. In the same year when the appointments are
made to the substantive vacancies from both the sources, the promotees shall rank senior to the direct recruits in accordance with the
quota prescribed under Rule 6. The rules provide the power to appoint
Forest Rangers from Subordinate Service, due to administrative
c exigencies to officiate or to act temporarily as Asstt. Conservators of
Forest. The rule itself, thus, recognises the distinction between substantive appointment and temporary /officiating appointment. The
procedure to prepare the list to man the officiating or temporary
vacancies is on the basis of seniority subject to rejection of the unfit.
The question of considering relative merit and ability of the promotees
D inter se, then would not arise. Thereby, it is clear that the list prepared
by the Chief Conservator of Forest for appointment of the Forest
Rangers to officiate in the posts of Assistant Conservator of Forest on
ad-hoc or temporary basis is only fortuitous due to non-availability of
the direct recruits as stop gap arrangement. Employees appointed
purely on ad-hoc or officiating basis due to administrative exigencies,
E
even though con.tinued for a long spell, do not become the members o'
the service unless the Governor appoints them in accordance with the
rules and so they are not entitled to count the entire length of their
continuous officiating or fortuitous service towards their seniority.
It is notorious that confirmation of an employee in a substantive
F
post would take place long years after the retirement. An employee is
entitled to be considered for promotion on regular basis to a higher
post if he/she is an approved probationer in the substantive lower post.
An officer appointed by promotion in accordance with Rules and
within quota and on declaration of probation is entitled to reckon his
seniority from the date of promotion and the entire length of service,
G
though initially temporary, shall be counted for seniority. Ad-hoc or
fortuitous appointmnts on a temporary or stop gap basis cannot be
taken into account for the purpose of seniority, even if the appQintee
was subsequently qualified to hold the post on a regular basis. To give
benefit of such service would be contrary to equality enshrined in Art.
~
14 read with Art 16( I) of the Constitution as unequals would be
-·
H
treated as equals. When promotion is out side the quota, the seniority
K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.l
587
would be reckoned from the date of the vacancy within the quota,
rendering the previous service fortuitous. The previous promotion
would be regular only from the date of the vacancy within the quota
and seniority shall be counted from that date and not from tlie date of
his earlier promotion or sub-sequent confirmation. In order to do
justice to the promotees it would not be proper to do injustice to the
direct recruits. The rule of quota being a statutory one it must be
strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or
expediency. The result of pushing down the promo tees appointed in
excess of the quota may work out hardship but it is unavoidable and
any construction otherwise would be illegal, nullifying the force of
statutory rules and would .offend Arts. 14 and 16(1). Therefore, the
rules must be carefully applied in such a manner as not to violate the
rules or equality assured under Art. 14 of the Constitution. This Court
interpreted that equity is an integral part of Art. 14. So every attempt
would be made to minimise, as far as possible, inequity, Disparity is
inherent in the system of working out integration of the employees
drawn from different sources, who have legitmate aspiration to reach
higher echolans of service. A feeling of hardship to one, or heart
burning to either would be avoided. At the same time equality is
accorded to all the employees.
In Direct Recruits' case the Constitution Bench of this Court in
which one of us (K. Ramaswamy, J.) was a member, in Proposition 'A'
& 'B' in paragraph 47 at page 475 stated:
"(A) Once an incumbent is appointed to a post according
to rule, his seniority has to'be counted from the date of his
appointment and not according to the date of his confirmation.
The corollary of the above rule is that where the initial
appointment is only ad-hoc and not according to rules and
made as stop gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee continues in the post un-interruptedly'till the regularisation of
his service in accordance with the rules, the period of
officiating service will be counted".
A
B
c
D
E
F
G
H
A
B
c
588
SUPREME COURT REPORTS
( 1990) Supp. 2 S.C.R.
M/s. Mukhoty and Garg repeatedly asked us to apply the ratio in the
cases of Narendra Chadha, Baleshwar Das the Chauhan contending
that the promotees were appointed to the same post; are discharging
the same duties; drawing the same salary, therefore, they should be
deemed to be given promotion from their initial dates of appointment.
We express out inability to travel beyond the ratio in Direct Recruits'
case. While reiterating hisistence upon adherence to the rule that
seniority between direct mcruits and the promotees has to be from the
respective dates of appointment, this Court noticed that in certain
cases, Government by deliberate disregard of the rules promotions
were made and allowed the promotees to continue for well over 15 to
20 years without reversion and thereafter seniority i5 sought to be fixed
from the date of ad-hoc appointment. In order to obvitate unjust and
inequitious results, this Court was constrained to evolve "rule of
deemed relaxation of the relevant rules" and directed to regularise the
services giving the entire length of temporary service from the date of
initial appointment for seniority. To lay down binding precedent the
cases were referred to a Constitution Bench. ln the Direct Recruits'
D case, this Court has laid down clear propositions of general applica·
tions in items A to K. Therefore, to keep the law cfoar and certain and
to avoid any slant, we are of the considered view that it is not expc·
dient to hark back into the past precedents and we prefer to adhere to
the ratio laid down in the Direct Recruits' case.
E
As stated, the counsel for the promotecH placed strong reliance
on proposition 'B' while the counsel for the Direct Recruits relied on
proposition 'A'. The controversy is as to which of the propositions
would apply to the facts of this case. The proposition 'A' lays down
that once an incumbent is appointed to a post according to rules, his
seniority has to be counted from the date of his appointment and ·not
F
according to the date of his confirmation. The latter part thereof
amplifies that where the initial appointment is only ad-hoc and not
according to rules and is made as stop-gap arrangement, the period of
officiation in such post cannot be taken into account for reckoning
seniority. The quintessence. of the propositions in that the appoint·
ment to a post must be according to rules and not by way of ad-hoc or
G stop-gap arrangement made due to administrative exigencies. If the
initial appointment thus made was dehors the rules, the entire length
of such service cannot be counted for seniority. in other words the
appointee would become a member of the service in the substantive
capacity from the date of his appointment only if the appointment was
made according to rules and seniority would be counted only from that
H date. Propositions 'A' and 'B' cover different aspects of the situation.
.....
-
K.C. JOSHJ v. U.0.1. {K. RAMASWAMY, J.]
589
One must discern the difference critically. Proposition 'B' must, therefore, be read alongwith Para 13 of the judgment wherein the ratic.