# RAM SEWAK PRASAD v. STATE OF U.P. AND ORS

- **Citation:** [1991] 2 S.C.R. 884
- **Court:** Supreme Court of India
- **Decided:** 1991-07-11
- **Bench:** Kuldip Singh, M. Fathima Beevi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-sewak-prasad-v-state-of-u-p-and-ors-11168
- **Pages:** 9

## Headnote

Uttar Pradesh Subordinate Excise Service Rules, 1967-Rule 3(ix)
and 5 and Uttar Pradesh Subordinate Excise Service Rules, 1983-Rule
3(g), 3(j), 5 and 21( ])-Interpretation of-Excise Inspector-Appointed on ad hoc basis-Held entitled to claim seniority and promotion
c
vis-a-vis those who were appointed later in point of time.
The petitioner was appointed as Excise Sub-Inspector in February
1964 in the State of U .P. and was later promoted as Excise Inspector on
ad hoc basis on February 24, 1972. He was confmned as Excise SubD
Inspector w .e.r. April 1, 1%7. Though promoted on ad hoc basis, the
petitioner bas continuously been working as Excise Inspector since
February 24, 1972. Ragbubir Singh and Ram Dban, respondents are
direct recruits to the post of Excise Inspector and tbay bad joined the
cadre later in point of time than the petitioner i.e. after 24.2.1972. They
were promoted to the post of Excise Superintendent on 29.9.1983 and
E
the petitioner was Ignored. Being aggrieved the petitioner bas filed this
petition under Article 32 of the Constitution.
According to the State and other respondents, the petitioner's
promotion to the post of Excise Inspector being on ad hoc basis was
against the 1%7 rules, be continues to be an ad hoc appointed and as
F
such is not a member of the Excise Inspectors service constituted under
the rul2s. His nanie bas not been shown In the seniority list of Excise
I
Inspectors. According to them bis case has rightly not been considered
for further promotion. On the other band, It is contended on behalf or
the petitioner that the 1%7 Rules in as much as they confine the channel
of promotion to Tari Inspectors and Clerks were wholly arbitrary and
as such violative of Articles 14 and 16 of the Constitution. It is submitG
ted on bis behalf that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under 1983 rules
and be is also entitled to fixation of seniority by counting bis entire
,
service as Excise Inspector from 1972 onwards. Respondents concede
that the petitioner can be appointed under 1983 rules, but contend that
H
be is not entitled to the benefit of past service for purposes of seniority.
884
RAM SEWAK v, STATE OF U.P.
885
Allowing the writ petition this Court
HELD: When the 1967 rules were enforced on May 24, 1967 there
was in existence a permanent cadre of Excise Suh-Inspectors. The
nature of duties of both the cadres were similar. The Excise Inspectors,
on molasses duty of the ranges, used to supervise the work of Excise
A
Sub-Inspectors under them. The Excise Suh-Inspectors were thus
B
natural contenders for the post of Inspectors. There was no justification
whatsoever with the framers of the 1967 rules to have kept the Excise
Sub-Inspectors out of the channel of promotion to the post of Excise
Inspectors. Prime facie there is no escape from the conclusion that the
Excise Sub-Inspectors were dealt with in an arbitrary manner by tl\e
framers of 1967 rules. [890H-89JB]
It is not disputed that under the 1983 rules, the petitioner is
eligible to be promoted and appointed as Excise Inspector. [ 891 C-D I
The 1983 rules came into force on March 24, 1983. There is
nothing on the record to show as to why the petitioner was not conD
sidered for promotion under the 1983 rules till today. Inaction on the
part of the State Government is wholly unjustified. The petitioner has
been made to suffer for no fault of his. He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily. [891E]
Rule 2 l(i) of the 1983 rules specifically permits substantive
E
appointment to the cadre of Excise Inspectors with back date. In all
probability the provision of back date appointment was made in the
~
1983 rules to do justice to persons like the petitioner. The petitioner is
eligible under the rules to be appointed as Excise Inspector by way of .
promotion. Accordingly the Court directed that the petitioner shall be
deemed to be a

## Text

A
RAM SEWAK PRASAD
v.
STATE OF U.P. AND ORS.
JULY 11, 1991
t
8
,,
[KULDIP SINGH AND M. FATHIMA BEEVI, JJ.]
Uttar Pradesh Subordinate Excise Service Rules, 1967-Rule 3(ix)
and 5 and Uttar Pradesh Subordinate Excise Service Rules, 1983-Rule
3(g), 3(j), 5 and 21( ])-Interpretation of-Excise Inspector-Appointed on ad hoc basis-Held entitled to claim seniority and promotion
c
vis-a-vis those who were appointed later in point of time.
The petitioner was appointed as Excise Sub-Inspector in February
1964 in the State of U .P. and was later promoted as Excise Inspector on
ad hoc basis on February 24, 1972. He was confmned as Excise SubD
Inspector w .e.r. April 1, 1%7. Though promoted on ad hoc basis, the
petitioner bas continuously been working as Excise Inspector since
February 24, 1972. Ragbubir Singh and Ram Dban, respondents are
direct recruits to the post of Excise Inspector and tbay bad joined the
cadre later in point of time than the petitioner i.e. after 24.2.1972. They
were promoted to the post of Excise Superintendent on 29.9.1983 and
E
the petitioner was Ignored. Being aggrieved the petitioner bas filed this
petition under Article 32 of the Constitution.
According to the State and other respondents, the petitioner's
promotion to the post of Excise Inspector being on ad hoc basis was
against the 1%7 rules, be continues to be an ad hoc appointed and as
F
such is not a member of the Excise Inspectors service constituted under
the rul2s. His nanie bas not been shown In the seniority list of Excise
I
Inspectors. According to them bis case has rightly not been considered
for further promotion. On the other band, It is contended on behalf or
the petitioner that the 1%7 Rules in as much as they confine the channel
of promotion to Tari Inspectors and Clerks were wholly arbitrary and
as such violative of Articles 14 and 16 of the Constitution. It is submitG
ted on bis behalf that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under 1983 rules
and be is also entitled to fixation of seniority by counting bis entire
,
service as Excise Inspector from 1972 onwards. Respondents concede
that the petitioner can be appointed under 1983 rules, but contend that
H
be is not entitled to the benefit of past service for purposes of seniority.
884
RAM SEWAK v, STATE OF U.P.
885
Allowing the writ petition this Court
HELD: When the 1967 rules were enforced on May 24, 1967 there
was in existence a permanent cadre of Excise Suh-Inspectors. The
nature of duties of both the cadres were similar. The Excise Inspectors,
on molasses duty of the ranges, used to supervise the work of Excise
A
Sub-Inspectors under them. The Excise Suh-Inspectors were thus
B
natural contenders for the post of Inspectors. There was no justification
whatsoever with the framers of the 1967 rules to have kept the Excise
Sub-Inspectors out of the channel of promotion to the post of Excise
Inspectors. Prime facie there is no escape from the conclusion that the
Excise Sub-Inspectors were dealt with in an arbitrary manner by tl\e
framers of 1967 rules. [890H-89JB]
It is not disputed that under the 1983 rules, the petitioner is
eligible to be promoted and appointed as Excise Inspector. [ 891 C-D I
The 1983 rules came into force on March 24, 1983. There is
nothing on the record to show as to why the petitioner was not conD
sidered for promotion under the 1983 rules till today. Inaction on the
part of the State Government is wholly unjustified. The petitioner has
been made to suffer for no fault of his. He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily. [891E]
Rule 2 l(i) of the 1983 rules specifically permits substantive
E
appointment to the cadre of Excise Inspectors with back date. In all
probability the provision of back date appointment was made in the
~
1983 rules to do justice to persons like the petitioner. The petitioner is
eligible under the rules to be appointed as Excise Inspector by way of .
promotion. Accordingly the Court directed that the petitioner shall be
deemed to be appointed by way of promotion as substantive Excise
F
Inspector under the 1983 rules with effect from February 24, 1972. The
petitioner shall be entitled to the benefit of his entire period of service as
Excise Inspector from February 24, 1972 towards fixation of bis seniority in the cadre of Excise Inspector. The petitioner shall be considered
for promotion to the post of Excise Superintendent from a date earlier
than the date when respondents Ram Dhan and Raghubir Singh were
G
promoted to the said post. The petitioner shall also be entitled to be
considered to the post of Assistant Excise Commissioner in accordance
with the rules from a. date earlier than the date when any of bis juniors
were promoted to the said post. [ 891 G, 892B-E J
None of the respondents who have already been promoted to the
H
886
SUPREME COURT REPORTS
[1991) 2 S.C.R.
A
higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person
similarly situated. The State Government shall create additional posts t
B
~
in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if
necessary. [892F]
Masood Akhtar Khan & Ors. v. State of Madhya Pradesh, [1990]
4 S.C.C. 24; Direct recruits Class-II Engineering Officers Associati'an
.v. State.of Maharashtra & Ors., [1990] 2 s.c.c. 715; P. Mahendran &
Ors. etc. v. State of Karnataka & Ors. etc., [1990] 1S.C.C.411; State of
Pu._njab v. Jagdip Singh & Ors., [ 1%4] 4 S.C.R. 964; Krishena Kumar
C
& Ors. v. Union of India & Ors., [1990] 4 S.C.C. 207; A.K. Bhatnagar
& Ors. v. Union of India & Ors., [1990] 2 Scale 949; Baleshwar Dass &
Ors. etc. v. State of U.P. & Ors., [1981] 1 S.C.R. 449; Narender
Chadha & Ors. v. Union of India & Ors., [1986] 1 S.C.R. 211; Rejendera Prasad Dhasmane v. Union of India & Ors., [1988] 3 J.T. 190 and
Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., [1990] 4
D J.T. 211, referred to.
E
ORIGIJ:'AL JURISDICTION: Writ Petition (Civil) No. 13704
of 1983.
(Under Article 32 of the (;onstitution of India).
P.N. Lekhi and M.K. Garg for the Petitioner.
Prithvi Raj. P.P. Rao, Govind Mukhoty, Satish Chander,
~
Raju Ramachandran, Mrs. S. Dikshit, A.K. Sangal, P.K. Chakraborty. Ms. Sandhya Goswami and Y.C. Maheshwari for the ResF
ponJents.
G
K.R. Gupta. Smt. Nanita Sharma, R.C. Gubrele, Vivek Sharma
anJ O.P. Sharma for the Intervener.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Ram Sewak Prasad, the petitioner before
us, was appointed as Excise Sub-Inspector, in the State of Uttar
Pradesh in February, 1964 and was promoted to the post of Excise
Inspector on ad hoc basis on February 24, 1972. He was confirmed as
Excise Sub-Inspector by an order dated December 2, 1972 with effect
H
from April 1, 1967. Though promoted on ad hoc basis the petitioner
RAM SEWAK v. STATE OF U.P. [KULDIP SINGH, J.]
887
has continuously been working as Excise Inspector since February 24,
1972.
Raghubir Singh and Ram Ohan, respondents are direct recruits
A
to the post of Excise Inspector. They joined as such on March 29, 1972
and May 14, 1972 respectively. They were promoted to the post of
Excise Superintendent by an order dated September 29, 1983. It is not B
disputed that the petitioner was not considered for promotion alongwith the respondents or at any time thereafter. Even his name was not
shown in the seniority list of Excise Inspectors circulated from time to
time. The respondents, including the State Government, have taken
the stand that the petitioner's promotion to the post of Excise
Inspector was against the rules, jie continues to be an ad hoc appointee C
and is not a member of the Excise Inspectors Service constituted under
the rules. For that reason he is neither been shown in the seniority list
of Excise Inspectors nor considered for promotion to the post of
Excise Superintendent.
It is necessary to examine the relevant statutory rules regulating D
recruitment and conditions of service of the Excise Inspectors. Rule
3(ix) and 5 of the Uttar Pradesh Subordinate Excise Service Rules,
1967 (hereinafter called '1967 rules') are as under:
"3(ix). "Member of the service" means a person appointed
in a substantive capacity under the provisions of these E
rules, or of rules in force previous to the enforcement of
these rules to a post in the cadre of the service"
"5. Sources of recruitment-Recruitment to the service shall
be made-
(a) by direct recruitment of candidates, on the result
of a combined competitive examinations conducted
by the Commission, who having been selected in the
prescribed manner for undergoing practical training
have completed the course of training and passed the
F
departmental examination prescribed in rule 23:
. G
Provided that no candidate shall be allowed to
avail of more than three chances for appearing at the
competitive examination;
(b) by promotion of permanent clerks of the office at
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888
SUPREME COURT REPORTS
(1991] 2 S.C.R.
the Headquarters of the Excise Commissioner and
other regional and Subordinate Excise Offices of Assistant Excise Commissioners and Superintendents of
Excise in Uttar Pradesh; and
( c) by promotion of permanent Tari Supervisors
The 1967 rules were superseded by the Uttar Pradesh Subordinate Excise Service Rules, 1983 (hereinafter called 1983 rules) which
came into force on March 24, 1983. Rule 3(g), 3(j), 5 and 21(1) of the
1983 rules are reproduced hereinafter:
"3(g). "Member of Service" means a person substantively
appointed under or the rules or orders in force prior to the
commencement of these rules to a post in the cadre of the
service".
"3(j). "Substantive appointment" means an appointment,
not being an ad-hoc appointment, on a post in the cadre of
the service, made after selection in accordance with the
rules and, if there are no rules, in accordance with the
procedure prescribed for the time being by executive instructions, issued by the Government."
Sources of Recruitment. "5. Recruitment to the
various
categories
of
posts in this service shall
be made from the following sources:
(A) EXCISE INSPECTOR
( 1) 90% by direct recruitment on the result of a combined
competitive examination conducted by the Commission.
(2) 10% by promotion from amongst the permanent subExcise Inspectors.
"Rule 21(1) Except as hereinafter provided, the seniority
of persons in any category of post shall be determined from
the date of the order of substantive appointment and if two
or more persons are appointed together, by the order in
which their names are arranged in the appointed order;
..
'
j
RAM SEWAK v. STATE OF U.P. [KULDIP SINGH,!.]
889
Provided that if the appointment order specifies a
A
particular back date with the effect from which a person is
substantively appointed, that date, will be deemed to be
the date of order of substantive appointment and, in other
case it will mean the date of issue of the order;"
Mr. Satish Chandra, learned se.nior advocate, appearing for
B
some of the respondents who are direct recruits of 1982/83 has contended that the 1967 rules were holding the field when the petitioner
was promoted as Excise Inspector on ad hoc basis. According to him
only clerks and Tari Supervisors could be considered for promoti~n to
the post of Excise Inspector under rule 5 of the 1967 rules and the
Excise Sub-Inspectors were not eligible. The petitioner's promotion C
being in violation of the 1967 rules, he was not a member of t~e service.
and as such was rightly not shown in the seniority list of Excise Inspectors. He, however, accepts the position that the petitioner can be
considered for promotion to the post of Excise Inspector under the
1983 rules and would become member of the service from the date of
promotion under the said rules. Mr. Satish Chandra finally contended D
that the appointment of the petitioner from 1972 to 1983 being violative of 1967 rules, the benefit of the said service cannot be given to the
petitioner towards seniority in the cadre of Excise Inspectors. In support of his arguments Mr. Salish Chandra relied upcn the judgments of
this Court in Masood Akhtar Khan and Others v. State of Madhya
Pradesh and Others, [1990] 4 S.C.C. 24 and Direct recruits class-II E
Engineering Officers Association v. State of Maharashtra and Others,
[1990] 2 S.C.C. 715. Mr. Govind Mukhoty, Mr. P.P. Rao and Mr.
O.P. Sharma, learned senior advocates appearing for various respondents reiterated, with different flavour, the arguments advanced by
Mr. Satish Chandra. They further cited P. Mahendran and Ors etc. v.
Stat~ of Karnataka and Ors. etc., [1990] 1 SCC 411; State of Punjab v.
F
Jagdip Singh and Ors., [1964] 4 SCR 964; Krishena Kumar and Ors. v.
Union of India and Ors., [1990] 4 SCC 207 and A.K. Bhatnagar and
Ors. v. Union of India and Ors., [1990] 2 Scale 949. Mr. Prithviraj,
learned senior advocate appearing for the State of Uttar Pradesh
stated that it may be possible to absorb the petitioner in the cadre of
Excise Inspectors from the date of enforcement of the 1983 rules but G
the benefit of serviCe rendered by him as Excise Inspector prior to that
date cannot be given to him.
Mr. P.N. Lekhi, learned senior advocate appearing for the
petitioner vehemently argued that the petitioner was promoted· in
'public interest' as Excise Inspector in the year 1972 and since then he H
A
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c
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890
SUPREME COURT REPORTS
I 1991) 2 S.C.R.
has been working as such continuously. He is being paid the same
salary for doing the same work as is being done by the directly
recruited Excise Inspectors. There can be no justifiable reason to treat
the petitioner as an ad hoc Excise Inspector even after working as such
for almost two decades. According to him the 1967 rules which confined the channel of promotion to Tari Inspectors and Clerks were
wholly arbitrary and as such violative of Articles 14 and 16 of the
Constitution of India. The Excise Sub-Inspectors are at a lower-rung
in the same hierarchy of service to which Excise Inspectors belong.
The Sub-Inspectors perform similar duties of less responsibility. Mr.
Lekhi further contended that providing avenue of promotion to Tari
Inspectors and Clerks who had no similarity or service-link with the
cadre of Excise Inspectors and deprivi~g the same to the Excise SubInspectors render the 1967 rules arbitrary and discriminatory. He
relied upon Bafeshwar Dass and Ors. etc. v. State of U.P. and Ors.,
[ 1981] 1 SCR 449; Narender Chadha and Ors. v. Union of India and
Ors., [1986) 1SCR211; Rajendera Parsad Dhasmane v. Union of India
and Ors., [1988) 3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc. v.
State of U.P. and Ors., [1990] 4 J.T: 211. Mr. Lekhi finally submitted
that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under the 1983 rules and he is
entitled to fixation of seniority by counting his entire service as Excise
Inspector from 1972 onwards.
E
It is not necessary to go into the judgments cited by the learned
counsel for the parties. The judgments are on the peculiar facts of
these cases and do not render much assistance to resolve the controversy before us.
The 1967 rules provided recruitment to the cadre of Excise
F
Inspectors by way of direct recruitment and by promotion. Recruitment by promotion was only confined to permanent clerks in the office
of Excise Commissioner and Tari Supervisors. The Excise SubInspectors were not eligible. On the plain interpretation of 1967 rules
Mr. Salish Chandra is justified to contend that the petitioner was not
eligible for promotion to the post of Excise Inspector and as such he
'·
G
could not be considered to be member of the Uttar Pradesh Subordi-
'
nate Excise Service as constituted under the 1967 rules. On the other
hand there is plausibility in the argument of Mr. P.N. Lekhi that rule 5
of the 1967 rules which denies avenue of promotion to the Excise
Sub-Inspectors is arbitrary and discriminatory. When the 1967 rules
were enforced on May 24, 1967 there was in existence a permanent
H
cadre of Excise Sub-Inspectors. The nature of duties of both the cadres
RAM SEWAK v, STATE OF U.P. IKULDIP SINGH. J.I
891
,
were similar. The Excise Inspectors, on molasses duty of the ranges,
used to supervise the work of Excise Sub-Inspectors under them. The
Excise Sub-Inspectors were thus natural contenders for the post of
Inspectors. There was no justification whatsoever with the framers of
the 1967 rules to have kept the Excise Sub-Inspectors out of the channel of promotion to the post of Excise Inspectors. Prima facie there is
no escape from the conclusion that the Excise Sub-Inspectors were
dealt with in an arbitrary manner by the framers of 1967 rules. However, the view we propose to take on the interpretation of 1983 rules it
is not necessary for us to deal with the respective arguments of the
learned counsel for the parties regarding the 1967 rules.
Rule 5 of the 1983 rules provides recruitment to the cadre of
Excise Inspectors from two sources, 90% by direct recruitment and
10% by promotion from amongst the permanent Excise Sub-Inspectors. It is not disputed that under the 1983 rules the petitioner is
eligible to be promoted and appointed as Excise Inspector. In the writ
petition the petitioner has specifically pleaded that the service record
of the petitioner is unblemished and he is holding the post of Excise
Inspector within the 10% promotion quota provided for the permanent Excise Sub-Inspectors. The State Government in its counter
has not denied these averments. The 1983 rules came into force on
March 24, 1983. There is nothing on the record to show as to why the
petitioner was not considered for promotion under the 1983 rules till
today. Inaction on the part of the State Government is wholly
unjustified. The petitioner has been made to suffer for no fault of his.
He has been serving the State Government as Excise Inspector since
February 24, 1972 satisfactorily. Least the State Government could do
was to consider the petitioner for promotion under the 1983 rules.
Mr. Prithviraj, learned counsel for the State of Uttar Pradesh has
however fairly stated that the State Government is willing to promote
the petitioner to the cadre of Excise Inspectors under the 1983 rules
effect from the date of enforcement of the said rules.
Rule 21( !) of the 1983 rules provides that the seniority of a
person in any category of post shall be determined from the date of the
order of substantive appointment. First proviso provides that if the
appointment order specifies a particular back date with effect from
which a person is substantively appointed then the said back-date shall
be deemed to be the date of order of substantive appointment. It is
thus obvious that rule 21( I) of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back
date. The framers of the 1983 rules were conscious that the cadre of
A
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89~
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A Excise Sub-Inspectors was in existence from 1964 onwards and some of
them were promoted to the post of Excise Inspectors much earlier to
the enforcement of the 1983 rules. In all probability the provision of
back-date appointment was made in the 1983 rules to do justice to
persons like the petitioner. The petitioner is eligible under the rules to
B
c
D
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be appointed as Excise Inspector by way of promotion. It is not disputed that the petitioner was appointed as Excise Inspector on
February 24, 1972 and he has been actually working in the said post
continuously from that date and has been drawing the salary of the
post of Excise Inspector. This is a fit case where the petitioner should
be appointed as Excise Inspector under the 1983 rules by giving him
back date appointment with effect from February 24, 1972.
We, therefore, hold that the petitioner shall be deemed to be
appointed by way of promotion as substantive Excise Inspector under
the 1983 rules with effect from February 24, 1972. The petitioner shall
be entitled to the benefit of his entire period of service as Excise
Inspector from February 24, 1972 towards fixation of his seniority in
the cadre of Excise Inspector. We fμrther direct that the petitioner
shall be considered for promotion to the post of Excise Superintendent
from a date earlier than the date when respondents Ram Ohan and
Raghubir Singh were promoted to the said post. The petitioner shall
also be entitled to be considered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date
when any of his juniors were promoted to the said post.
We make it clear that none of the respondents who have already
been promoted to the higher rank of Excise Superintendents or
Assistant Excise Commissioners be reverted to accommodate the
petitioner or any other person similarly situated. The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the
petitioner and other similar persons, if necessary.
The writ petition is allowed with costs in the above terms. We
quantify the costs as Rs.10,000 to be paid by the State of Uttar
Pradesh.
Y.Lal.
Petition allowed.