Bibekananda Das vs State Of Assam And Ors. on 19 November, 2004

JUDGMENT

I.A. Ansari, J.

1. Our constitutional scheme for governance is based on the rule of law. Absence of arbitrary power, as the Apex Court observed in S.G. Jaisinghani v. Union of India and Ors. , is the first essential of the rule of law. In a system governed by the rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. “Law has reached its finest moments,” observed Douglas, J, in United States v. Wunderlich, (1951) 342 US 98, “when it as free man from the unlimited discretion of some ruler … where discretion is absolute, man has always suffered.” If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. [See S.G. Jaisinghani (supra).

2. Article 16 of the Constitution of India guarantees equality of opportunity for all citizens in matters of employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. Article 16 is nothing, but one of the facets of the concept of equality enshrined in Article 14 thereof. In other words, Article 16 aims at giving effect to the doctrine of equality in the matter of appointment and promotion.

3. When the rules of recruitment, in a given case, makes provisions for relaxation, such relaxation has to be guided by some known and determined principles and cannot be unpredictable. If a relaxation goes to the extent of making the rules non est, it will be tantamount to making the powers of relaxation unpredictable and undefined. Such unbridled power is an anathema to the sense of justice and the rule of law, which our Constitution embodies.

4. Many a times, a writ Court is invited to interfere with arbitrary exercise of powers in the field of employment and appointment to offices under the State or to promotions from one grade to another grade. If the exercise of such powers is illegal and arbitrary, there is no difficulty in setting at naught such appointment and/or promotion. The difficulty, however, arises in the cases, wherein the rule of law demands setting at naught such appointment and yet by the time the challenge to the appointment, eventually, comes to be determined by the Court, the irregular or illegal appointee has already put in sufficiently long period of service. In such a situation, there is a conflict of interest. The ideal solution to such a problem lies in determining as to what the public interest really demands. If non-interference by the Court is likely to affect the public morale and the public confidence in the ability of the Courts to keep in check the arbitrary exercise of powers by the State, it becomes the duty of the Court to, unhasitatingly, interfere in the matter and in such a situation, even if the Court chooses not to set at naught completely the appointment or promotion to the office, in question, the Court will be duty bound to, at least, adjust the equities in such a manner that the confidence of the public in the rule of law remains intact and none is made to feel that the State can flout the law with impunity. These basic tenets governing the doctrine of judicial review of administrative action are required to be kept in mind, while dealing with the present set of writ petitions.

5. By this common judgment and order, I propose to dispose of writ petition (Civil) Nos. 69/03, 7482/02, 7483/02, 7564/02, 8081/02, 298/ 03, 4028/03, 4129/03 and 1031/2003 as these writ petitions largely involve identical questions of facts and law and have all been heard together.

WHO 69/2000

6. In this writ petition, the petitioner, namely, Sri Bibekananda Das, who happens to be Additional Superintendent of Police, Guwahati City, has prayed for setting aside and quashing the appointments of the private respondents, as Deputy Superintendents of Police, made vide orders, dated 3.6.1993 and 31.8.1994 (Annexures B and C to the writ petition), the same being allegedly in violation of the various provisions of the Assam Police Service Rules, 1966.

7.1 have heard Mr. N. Dutta, learned senior counsel, appearing for the petitioner, and Mr. A.K. Thakur, learned Addl. Senior Government Advocate, Assam. I have also heard Mr. T.C. Chutia, learned Standing Counsel, Assasm Public Service Commission, and Mr. B.R. Bhattacharjee, Mr. G.N. Sahewalla, Mr. K.N. Choudhury, Mr. B.P. Kataki, Mr. H.N. Sharma and Mr. K.P. Pathak, learned senior counsel, appearing for the remaining respondents.

WP(C) NOS. 7482/2002, 7483/2002, 7564/2002, 8081/2002 and 298/2003.

8. In these writ petitions, the petitioners have challenged the order, dated 11.10.2002, passed by the Assam Administrative Tribunal, Guwahati, in Appeal No. 79 ATA of 1999 and claimed seniority over the appellants therein.

9. I have heard Mr. B.R. Bhattacharjee, Mr. G.N. Sahewalla, Mr. B.P. Kataki, Mr. K.N. Choudhury, Mr. H.N. Sharma and Mr. K.P. Pathak, learned senior counsel appearing on behalf of the petitioners, and Mr. A.K. Thakur, learned Additional Senior Government Advocate, Assam. I have also heard Mr. T.C. Chutia, learned Standing counsel for the Assam Public Service Commission, and Mr. N. Duta, learned senior counsel, appearing for the respondent No. 6.

WP(C) NOS. 4028/2003, 4129/2003 and 1031/2003

10. In these writ petitions, the petitioners have prayed for issuance of a writ of mandamus directing the respondent authorities to consider the previous services rendered by the petitioners prior to their appointment in the Assam Police Service (Junior Grade) in the year 1993 and to determine their inter se seniority in their cadre accordingly.

11. I have heard Mr. G.N. Sahewalla, Mr. B.R. Bhattacharjee and Mr. K.N. Choudhury, learned senior counsel appearing for the petitioners, and Mr. A.K. Thakur, learned Additional Senior Government Advocate, Assam. I have also heard Mr. T.C. Chutia, learned standing counsel, Assam Public Service Commission, and Mr. N. Dutta, learned senior counsel, appearing for respondent No. 4 in WP(C) No. 1031/2003.

Event leading to the Present Batch of Writ Petitions

12. The Assam Public Service Commission (hereinafter called “the APSC”) issued an advertisement, on 23.6.1992, inviting applications for the Combined Competitive (Preliminary) Examination for 30 posts in the Assam Police Service (Junior Grade). By yet another advertisement, dated 29.8.1992, the APSC invited applications for 20 posts in the Assam Police Service (Junior Grade) under Rule 5(1)(c) of the Assam Police Service Rules, 1966 (hereinafter referred to as “the APS Rules, 1966”). Pursuant to the advertisement issued on 23.06.1992 aforementioned, the preliminary and main examinations were held for the applicants on 16.7.1989 and 3.8.1992 respectively, the applicants, who got selected in the examinations so held, being hereinafter called as “the members of the Direct Batch”, whereas the selection test in respect of, and pursuant to, the advertisement, dated 29.8.1992, aforementioned was held on 22.11.1992, the applicants, who got selected in the examination so held, being hereinafter called the “the members of the Special batch”. The APSC conveyed, on 26.4.1993, the result of the Direct Batch to the Government along with the names of the selected candidates. The Government, instead of making appointments on the basis of the results conveyed by the APSC in respect of the Direct Batch, wrote a letter, dated 28.5.1993, addressed to the APSC for expediting the selection process of the Special batch. The request so made, vide letter, dated 28.5.1993, was repeated by the Government in its letter, dated 7.6.1993, addressed to the APSC. The APSC, eventually, conveyed the result of the Special batch to the Government on 14.6.1993. Out of the 30 posts, advertised for the Direct Batch, and the results whereof were already known to the Government, 28 appointments were made by the Government as late as on 13.8.1993; but in the case of the Special batch, 20 number of appointments were made as early as on 3.7.1993 and one additional appointment was made on 31.8.1994, taking the appointment of the officers of the Special batch to as many as 21 posts against the advertised posts of 20.

13. The proposal for resorting to the special recruitment process, leading to the appointment of the Special batch, first, emanated some time in August 1988, from the Department of Home, Government of Assam, wherein it was stated thus, “Although because of various occasions in the law and order front and also requirement of personnel for handling extremists, detection and deportation of foreigners, some posts were created, the Director General of Police, Assam, could not fill up those vacancies due to dearth of officers.” In this context, however, the Department of Personnel, Government of Assam, vide their endorsement dated 18.7.1989, observed, “APSC already published the advertisement on 21.3.1989 for filling up the vacancies through Combined Competitive Examination, 1989, and the Preliminary Examination has been held on 16.7.1989. As such, there is no scope for Special Recruitment for APS at this stage.”

14. Notwithstanding the observations made by the Department of Personnel, Government of Assam, as indicted hereinabove, the Director General of Police, vide letter, dated 17.8.1991, made another proposal for special recruitment stating therein, “It is felt that with a view to stagger the intake, which may create seniority and professional problem later and also to enrich the Department with officers of wide experience, it is proposed to enlist 20 Deputy Superintendents of Police from other Departments under Rule 5(1)(c) of the Assam Police Service (Recruitment) Rules.” In pursuance of the proposals and communications so made, a meeting was held in the chamber of the Chairman, APSC, wherein the Dy. Chairman, APSC, and the Director General of Police, Assam, participated and the manner and modalities for holding of the interview and tests for making special recruitment were settled, which, eventually, led to the appointment of Special batch on 3.7.1993.

15. A combined provisional gradation list of the officers of the Assam Police (Senior Grade and Junior Grade) as on 31.12.1997 including the officers of the Direct Batch as well as the Special batch was published by the Government on 12.3.1999. This provisional gradation list, thus, reflected the inter-se seniority of the officers constituting the Direct Batch as well as the Special batch. In this provisional gradation list, the members of the Special batch were placed as senior to the members of the Direct Batch. Prior to the publication of this provisional gradation list, the Director General of Police, Assam (for short, “the DGP”), had recommended that the members of the Direct Batch shall be treated as senior to the members of the Special batch, for, the advertisement for recruitment of the Direct Batch was published prior to the advertisement for the Special batch, the process for selection of the Direct Batch was commenced and concluded earlier and the result of the selection process, held in respect of the Direct Batch, had been conveyed by the APSC to the Government earlier, in point of time, than that of the Special batch. By letter, dated 1.4.1999, the Government, however, communicated to the DGP, Assam, that the inter se seniority under the proviso to Rule 18(1) of the APS Rules, 1966, shall be counted from the date of appointment in service and since the members of the Special batch were appointed prior, in point of time, to the members of the Direct Batch, the members of the Special batch were to be treated as senior to the members of the Direct Batch and the appeal seeking correction of the inter se seniority made with reference to the provisional gradation list, published on 12.3.1999, shall stand rejected. Thereafter, pursuant to the letter, dated 1.4.1999, of the Government, the office of the DGP, Assam, floated a message enclosing, therewith, the provisional gradation list, dated 12.3.1999 aforementioned, inviting objections, if any, against the publication of the provisional gradation list. In response thereto, the members of the Direct Batch submitted their representations, dated 29.4.1999. The objections so raised were, however, not finally disposed of and no final gradation list was published by the Government. Without publishing the final gradation list, however, the Government, vide order, dated 25.9.1999, promoted some officers of both the batches, i.e. Direct as well as Special, to the rank of Additional Superintendent of Police.

16. Being aggrieved, four of the members of the Direct Batch, namely, Shri Parthasarathi Mahanat, Sri Shyamal Prasad Saikia, Sri Devajyoti Mukherjee and Sri Luish Aind preferred an appeal in the Assam Administrative Tribunal, Guwahati, which gave rise to Appeal No. 79 ATA of 1999 aforementioned. In this appeal, it was contended, inter alia, by the appellants that the recruitment of the Special batch was in violation of the provisions contained in the relevant Recruitment Rules and, as such, the seniority given to the members of the Special batch was not sustainable and may be set aside. It may be pertinent to note here that all members of the Special batch were made parties to the appeal so preferred in the Tribunal. By their order, dated 11.10.2002, aforementioned, the Assam Administrative Tribunal allowed the appeal directing the State respondents to refix the inter se seniority of the appellants and other recruits belonging to the Direct Batch by placing the members of the Direct Batch above the members of the Special batch and also to publish a final gradation list showing the inter se seniority of the parties concerned consistent with the directions so issued. The Tribunal further directed that the members of the Direct Batch shall be allowed the consequential benefits with effect from the date on which the seniormost member of the Special batch had availed of any such benefit by even creating supernumerary duty post in the cadre. It is this order, which stands impugned in Writ petition (Civil) Nos. 7482/2002, 7843/2002, 7564/2002, 8081/2002 and 298/2003, by the members of the Special batch.

17. Before proceeding any further, it may also be taken note of that though during the progress of the hearing of the present writ petitions, it was, at one stage, agitated, on behalf of the Special batch, that the recruitment of the Special batch has taken place in pursuance of a Cabinet Decision in terms of the Assam Rules of Executive Business, 1968, and reliance, in this regard, was placed on a Cabinet Memorandum circulated under Rule 17 of the said Rules, on 9.3.1990, for recruitment of 20 Deputy Superintendents of Police as a special drive, Mr. A.K. Thakur, learned Addl. Senior Government Advocate, submitted candidly that though the proposal, which emanated from the Department of Home, was circulated in the form of a Cabinet Memorandum, the same was not formally adopted by the Government and remained as a mere proposal. On the submission so made, on behalf of the State respondents, nothing has been cited before this Court to show that this submission is incorrect or false and no affidavit has been filed or any material has been placed contradicting the submission so made on behalf of the Government.

18. However, for the purpose of effective disposal of this batch of writ petitions, it is pertinent to take note of the said Cabinet Memorandum, wherein reasons were mentioned for proposing the special drive for appointment of 20 officers in the post of Deputy Superintendents of Police by taking resort to Rule 5(1)(c) of the APS Rules, 1966. The said Cabinet Memorandum is reproduced hereinbelow :

“CABINET MEMORANDUM

(Circulated under Rule 17 of Executive Business)

Sub : Proposal for recruitment of 20 Deputy Superintendents of Police under Direct Recruitment.

The Assam Police has been facing a crisis of non-availability of young officers directly recruited in the rank of Deputy Superintendent of Police since long, as the last direct recruitment was done in the year 1986 when only two Dy. SSP were appointed. Over the years the strength of the Assam Police has grown considerably with the addition of 7(seven) . new Battalions, creation of posts under the Border Organisation for detection of illegal migrants and increase of regular posts in the existing districts to meet the requirements of security and intelligence.

Further, a number of new districts and sub-divisions have been created over the past few years increasing the number of districts to 24 including the Guwahati Police District. It is also proposed to have a Commissionerate system for the Guwahati Police for which a proposal is being submitted separately.

Over the past few years the complexion of the law and order situation in the State has undergone a change bringing in new factors creating situations involving frictions between various communities linguistic, religious and political differences and an increase in extremist activities by various militant groups having extremist ideologies. Such a situation requires an infusion of young blood in the officers cadre of the State to provide effective leadership on the ground to the force.

According to the Assam Police Service cadre rule No. 5, the cadre in the rank of Dy. Supdts. of Police is to be filled up 50 per cent by direct recruitment and the balance 50 per cent by promotion from the departmental officers from the rank of confirmed Inspectors of Police. Further, it is seen that due to irregular recruitment of direct Dy. Supdts. of Police and inadequate number being so inducted, the ranks of Dy. Supdts. of Police have by and large being filled up by departmental officers on promotion from the rank of Inspectors of Police. This had led to a situation where there are a large number of older officers on the field, quite a few of whom cannot be expected to undertake duties of arduous nature effectively. Further due to promotions the number of directly recruited officers in the rank of Dy. Supdts. of Police has dwindled to only 16 in a total cadre strength of 184 in the rank of Dy. Supdts. of Police, the remainder, baring vacancies, having been filled up by departmental officers on promotion.

It is, therefore, considered imperative that the State should go in for immediate direct recruitment of officers in the rank of Dy. Supdts. of Police and do the same at regular intervals every year and no imbalance would remain after a period of a few years.

The department had requested Assam Public Service Commission for recruiting 40 Dy. SSP. But due to various circumstances the recruitment is not likely within 1990. Meanwhile the need for filling up vacancies of Dy. S.P. by younger officers has become imperative.

Hence the Home Department feels that in order to meet the immediate requirement of officers in this rank immediate recruitment may be made by the Department of 20 (twenty) officers in the rank of Deputy Superintendent of Police within the next two months to meet the immediate requirements. This recruitment will not entail any extra financial expenditure since the recruitment would be against existing vacancies in the cadre as explained above.

The approval of the Cabinet is, therefore, sought for approving the recruitment of the above number of officers by a special selection Board instead of going through APSC considering the shortage of time and the urgency of the requirement pending regularisation by the APSC in due course.”

19. It is in the above backdrop that we have to, now, consider the merit of the cases set up by the parties concerned in the writ petitions aforementioned.

20. On the basis of the rival submissions made before this Court on behalf of the parties concerned, following points arise for determination in the present batch of writ petitions : –

(i) Whether the appeal before the learned Assam Administrative Tribunal was barred by limitation ?

(ii) Can seniority of an appointee to a service be changed without interference with his appointment, when the seniority of such an appointee is challenged on the ground that the appointment of the person, who is treated as senior, is in violation of the relevant Recruitment Rules, whereas the appointment of the one, who seeks seniority, is in accordance with the relevant Recruitment Rules.

(iii) Could the learned Tribunal have directed correction in the gradation list in a manner as it has done in the present case, when the Direct Batch did not seek removal of the Special batch and only sought for direction to the Government to treat the Direct Batch as senior to the Special batch ?

21. The question No. (iii) raises, in turn, the following questions : –

(a) Whether the appointment of the members of the Special batch was made according to the relevant Rules of recruitment ?

(b) Whether the appointments of the Special batch were arbitrary, mala fide and discriminatory vis-a-vis the appointments of the Direct Batch ?

(c) The infractions, if any, of the relevant Rules of recruitment in appointing the Special batch were to such an extent that the very appointments became illegal and void ?

(d) Whether the relevant Rules of recruitment provide for relaxation and if so, what the permissible limits of such relaxation are ?

(e) Whether the relevant Rules of recruitment were relaxed in respect of the Special batch at the time of making their recruitments ? If not, whether such relaxation can be deemed to have been made, while recruiting the Special batch ?

(f) Whether WH(C) No. 69/2003 should not be entertained on the ground of delay ?

(iv) The reliefs, if any, which the parties are entitled to ?

Point No. (i)

22. Let me, first, deal with point No. (i), namely, whether the appeal before the learned Assam Administrative Tribunal was barred by limitation ?

23. Before entering into the merit of the present batch of writ petitions, it is pertinent to note that assailing the very maintainability of the appeal by the learned Assam Administrative Tribunal, Guwahati, (for short “the Tribunal”), Mr. K.N. Choudhury, learned senior counsel, has raised a preliminary objection that the appeal was barred by limitation under Section 5 of the Assam Administrative Tribunal Act, 1977, (“the AAT Act of 1997”, for short) and no application for condonation of delay . having been filed by the appellants therein, the delay could not have been condoned by the learned Tribunal and has, in fact, not been condoned. Assailing further the maintainability of the appeal, Mr. Choudhury has submitted that the learned Tribunal has invoked the provisions of Sub-section (2) of Section 4 of the AAT Act of 1997, though the provisions of Sub-section (2) of Section 4 were not attracted at all to the facts of the present case.

24. Elaborating his above submissions, Mr. KN Choudhury has pointed out that the provisional gradation list of the APS (Junior Grade) was published on 12.3.1999 and the same was circulated vide order, dated 1.4.1999, with the stipulation that objections, if any, be filed within a period of 30 days thereof. In the said order, dated 1.4.1999, circulating the said provisional gradation list, it was clearly indicated, points out Mr. Choudhury, that if no objection was filed within the said stipulated period of 30 days, the list would attain finality. Mr. KN Choudhury contends that no objections were filed by the members of the Direct Batch, who had approached the learned Tribunal, and, hence, the provisional gradation list, dated 12.3.1999, which was circulated, on 1.4.1999, attained finality on 30.4.1999. Therefore, in terms of Section 5 of the AAT Act, of 1977, the appeal, in question, ought to have been preferred by the appellants, according to Mr. Choudhury, within 30.6.1999, but the same was filed in October, 1999, and, thus, the appeal having not been filed within time, the same ought to have been, submits Mr. Choudhury, dismissed on the grounds of delay.

25. The proviso to Section 5 of the AAT Act, submits Mr. Choudhury, empowers the Tribunal to entertain appeal after expiry of a period of 60 days from the date of passing of the order appealed against provided that the Tribunal is satisfied that the civil servant was prevented by sufficient cause from preferring the appeal within the period of limitation. It is admitted position, contends Mr. Choudhury, that no application for condonation of delay was preferred by the appellant, who had approached the learned Tribunal. It is also submitted by Mr. Choudhury that a reading of paras 4, 7 and 10 of the order, dated 11.10.2002, of the learned Tribunal indicates that the plea of the appeal being barred by time was raised by the respondent Nos. 6 to 25, i.e., the Special batch, but the learned Tribunal, under misconception of law, decided the issue of limitation by purporting to invoke their powers under Sub-section (2) of Section 4 of the AAT Act, of 1977, though no case for invoking the provisions of Sub-section (2) of Section 4 was made out by the appellants therein.

26. Mr. Choudhury also submits that it is the cardinal principle of interpretation of statute that a statute must be read as a whole and that no provision of the statute can be used to defeat the other provisions of the statute unless it is impossible to effect reconciliation between them; but in the instant case, according to Mr. Choudhury, the learned Tribunal, while proceeding to decide the issue of limitation, took into account the provisions of Section 4(2) and lost sight of the legal implications of deceased 5 of the AAT Act of 1997.

27. The provisions relating to limitation, pleads Mr. Choudhury, are incorporated in a statute as a matter of public policy, the purpose of inserting provisions for limitation being to discourage stale claims from being agitated in legal forum, though a statute, while providing for limitation, normally, makes provisions for condonation of delay. In the instant case, reiterates Mr. Choudhury, the direct recruits having not filed any application for condonation of delay and they having purportedly invoked Section 4(2) of the AAT Act of 1977, which provision, according to Mr. Choudhury, could not have been invoked, the Tribunal committed manifest error of law in entertaining the appeal.

28. Controverting the above submissions made by Mr. KN Choudhury, Mr. Dutta, learned senior counsel, has contended that the submission that the appeal before the learned Tribunal was barred by limitation is totally misconceived. It is contended by Mr. Dutta that Sub-section (2) of Section 4 of the AAT Act of 1997 imposes some restrictions on the civil servants to prefer appeal by laying down that no civil servant can prefer any appeal before the Tribunal without having availed of all the remedies available to him under the relevant service rules, executive instructions or orders. In the case at hand, points out Mr. Dutta, the provisional gradation list, dated 12.3.1999, was admittedly, circulated by the DGP, Assam, vide his letter, dated 1.4.1999, calling for objections, if any. Without submitting their objection to the provisional gradation list, as has been directed by the letter, dated 1.4.1999, aforementioned, no member of the Direct Batch could have, contends Mr. Dutta, preferred any appeal before the Tribunal against the said provisional gradation list. The Direct Batch, therefore, submitted, points out Mr. Dutta, their objections, on 29.4.1999, to the said gradation list. The said objections having not been disposed of for a period of more than 6 months, some of the members of the Direct Batch, submits Mr. Dutta, preferred an appeal in terms of Sub-section (2) of Section 4 of the AAT Act of 1997. The appeal, therefore, was, according to Mr. Dutta, wholly in terms of the provisions of Sub-section (2) of Section 4 of the AAT Act of 1997, and the learned Tribunal committed no error in entertaining the appeal.

29. In view of the fact that the objection raised, on the ground of limitation, to the maintainability of the very appeal by the learned Tribunal goes to the very root of the matter and if this objection is sustained, then, the impugned order, dated 11.10.2002, passed by the learned Tribunal has to be set aside, it is imperative that this Court decides, first, the question as to whether the appeal, which the learned Tribunal entertained, was barred by limitation and not maintainable.

30. For proper appreciation of the question of limitation raised by Mr. K.N. Choudhury, the relevant provisions of sections 4 and 5 of the AAT Act of 1997 are quoted hereinbelow :-

“4. Jurisdiction, – (1) Save as otherwise expressly provided in Sub-section (2) below the Tribunal shall have jurisdiction to entertain and dispose of appeals preferred by civil servants against any order passed by a competent authority in respect of any condition of service.

(2) Notwithstanding anything contained in Sub-section (1) above, the Tribunal shall have no jurisdiction with respect to any order passed, when the civil servant has not availed of all the remedies available to him under the relevant service rules, executive instructions or orders :

Provided that notwithstanding anything contained in the above paragraph, the Tribunal may entertain an appeal from a civil servant if any appeal, revision petition or representation filed by him under the relevant service rules before the competent authority has not been finally disposed of by the competent authority within a period of six months from the date of filling of such appeal, revision, petition or representation.

(3) Notwithstanding anything contained in Sub-section (1) above, the Tribunal shall have no jurisdiction to entertain and dispose of appeals against any order passed by a competent authority under Article 31(2) proviso (a), (6) and (c) as also under Rule 56(b).

5. Limitation. – No appeal shall lie to the Tribunal after the expiry of 60 days from the date of the order appealed against:

Provided that the Tribunal may entertain an appeal after the expiry of sixty days from the date of passing the order if the Tribunal is satisfied that the civil servant was prevented by sufficient cause from preferring the appeal within the aforesaid period.”

31. A combined reading of sections 4 and 5 shows that Section 5 lays down that no appeal shall lie to the Tribunal after the expiry of 60 days from the date of the order appealed against. What is, however, imperative to note is that it is Sub-section (1) of Section 4, which confers jurisdiction on the Tribunal to entertain appeal preferred by civil servants against any order passed by the competent authority in respect of any condition of service. Thus, the power of the Tribunal to entertain appeals preferred by civil servants against any order passed by a competent authority in respect of any condition of service rests on Sub-section (1) of Section 4. However, for enabling the Tribunal to entertain an appeal under Sub-section (1) of Section 4, Sub-section (2) of Section 4 makes it obligatory for the Tribunal to ensure that before preferring the appeal, the Civil Servant has availed of all such remedies as were available to him under the relevant service rules, executive instructions or orders.

32. In other words, the Tribunal will have no jurisdiction to entertain an appeal under Sub-section (1) of Section 4 if the civil servant concerned, who prefers the appeal has not availed of, in terms of Sub-section (2) of Section 4, all the remedies available to him under the relevant service rules, executive instructions or orders. Lest non-disposal of, or indefinite delay in disposing of, the appeal, representation or revision petition made by a civil servant to avail the remedies available to him under the relevant service rules, executive instructions or orders causes prejudice to the civil servant or renders the remedies, so made available to the civil servant, otiose or frustrates the relief, which the civil servant has sought for, the proviso to Sub-section (2) of Section 4 makes it clear that notwithstanding the embargo which Sub-section (2) of Section 4 so imposes on the powers of the Tribunal to entertain appeals, the Tribunal shall have the jurisdiction to entertain the appeal if the representation, revision petition or appeal, filed by the civil servant concerned before the competent authority, in terms of the relevant service Rules, executive instructions or orders seeking remedy of hip grievances, has not been finally disposed of by the authority concerned within a period of six months from the date of filing of such appeal, revision petition or representation.

33. Thus, a conjoint reading of sections 4 and 5 of the AAT Act of 1977, clearly discloses that if an order is passed on a representation, appeal, revision or petition of a civil servant as regards the conditions of his service, the civil servant shall in terms of Section 5 prefer appeal within a period of 60 days from the date of the order appealed against. If there is delay in preferring such appeal, the Tribunal may, under the proviso to Section 5 condone the delay if it is satisfied that the civil servant was prevented by sufficient cause from preferring the appeal within the period of limitation. However, when the relevant Service Rules, Executive Instructions or Orders provide for remedies, the civil servant must exhaust those remedies before preferring the appeal. If the steps taken by the civil servant concerned to avail the remedies available to him under the relevant Service Rules, Executive Instructions or Orders has not yielded any result within a period of six months from the date of making of the appeal, revision, petition or representation, the civil servant concerned will have the option to prefer an appeal under Section 4 and for preferring such an appeal, there is no period of limitation. In other words, the period of limitation will come into play only when the order is such against which no other remedy, in terms of the relevant Service Rules, Executive Instructions or Orders, is available to the civil servant concerned or when the order appealed against is an order, whereby the relief, (which the civil servant concerned had sought for, in terms of the relevant Service Rules, Executive Instructions or Orders) has been declined by the competent authority. I am guided to adopt this view from the law laid down in Santi Ram Bora v. The State of Assam and Ors., reported in (1985) 1 GLT 510, wherein a Division Bench of this Court has held as follows :

“5… However, Section 4(2) of “the Act” debars the Tribunal to entertain appeal unless the civil servant has exhausted all the remedies available to him under the service rules, executive instructions or orders. It is, thus, seen that a civil servant must exhaust his remedies available to him under the service rules, executive instructions or orders before he can prefer an appeal to the Tribunal. Lastly, the Tribunal cannot entertain an appeal unless the civil servant exhausts his remedies available to him under the relevant service rules, executive instructions or orders against an order passed by competent authority in respect of any condition of service. However, if the proceedings in the appeal, revision or representation filed by a civil servant under the relevant service rules pends before the competent authority for a period of over six months from the date of filing of the appeal, revision petition or representation, the Tribunal may entertain the appeal.

6. In the instant case, the petitioner preferred a statutory appeal against the impugned order and the same was dismissed on 15.2.1982. In our opinion, the petitioner is entitled to the period spent by him in the appeal proceedings as it was a statutory appeal, which he had to avail before preferring an appeal before the Tribunal under Section 4 of the Act.”

34. What can also not be ignored is that a microscopic reading of Section 5 of the AAT Act of 1997, shows that while barring the Tribunal from entertaining any appeal after expiry of a period of 60 days from the date of the order appealed against, the Tribunal has, at the same time, been given, with the aid of the proviso to Section 5, a discretion by the Legislature to entertain an appeal even after the expiry of the said period of 60 days if the Tribunal is satisfied that the civil servant was prevented by sufficient cause from preferring the appeal within the aforesaid period. In this proviso, the words used by the Legislature are “the Tribunal may entertain an appeal”. It is, thus, discretionary for the Tribunal, under the proviso to Section 5, to entertain an appeal, which has been preferred after the expiry of the period of limitation fixed by Section 5 of the AAT Act of 1997, if it is satisfied that the civil servant was prevented by sufficient cause from preferring the appeal within the period of limitation.

35. The expression “the Tribunal may entertain an appeal”, which the proviso to Section 5 uses, is also employed by the Legislature in the proviso to Sub-section (2) of Section 4 meaning thereby that after expiry of the period of 6 months from the date of filing of an appeal, revision, petition or representation by the civil servant, the Tribunal has the discretion to entertain the appeal. Though this discretion cannot be exercised or refused to be exercised arbitrarily, the fact remains that in an appropriate case, the Tribunal has the discretion of not entertaining the appeal, even if the period of 6 months has expired from the date of making of the appeal, revision, petition or representation by the civil servant before the competent authority without the same having been finally disposed of. In other words, it is not mandatory for the Tribunal to entertain an appeal preferred under Section 4(2). Similarly, under the proviso to Section 5, the Tribunal may not arbitrarily reject an appeal, yet in an appropriate case, the Tribunal may reject an appeal by refusing to condone the delay in preferring the appeal, when sufficient cause for not being able to prefer the appeal within the prescribed period has (sic, not) been made out.

36. Thus, the appeal, under Section 4(2) of the AAT Act of 1977, is not an appeal as a matter of right, similarly, even an appeal preferred under the proviso to Section 5 cannot be said to be an appeal preferred as a matter of right. In short, no appeal, as a matter of right, is available to a civil servant under Section 4(2) inasmuch as the appeal preferred under Section 4(2) may not, in an appropriate case, be entertained by the Administrative Tribunal and when there is no appeal provided as a matter of right under Section 4(2), the question of the period of limitation having started running, on the strength of such a precarious right, does not arise at all.

37. What crystallises from the above discussion is that the Tribunal has, under the proviso to Section 5, a discretion to entertain or not to entertain an appeal barred by limitation. Similar discretion has been provided to the Tribunal by the proviso to Sub-section (2) of Section 4 of the AAT Act of 1997, to entertain or not to entertain an appeal made after the period of 6 months as prescribed under the proviso to Sub-section (2) of Section 4. Though in none of the two cases, the discretion can be arbitrarily exercised or refused to be exercised arbitrarily, the fact remains that in the light of the language employed in the proviso to Section 5 and also Sub-section (2) of Section 4, it is abundantly clear that in none of the two cases, it is mandatory for the Tribunal to entertain an appeal.

38. What logically follows from the above discussion is that if an appeal is made from an order passed within the period of limitation, the Tribunal cannot refuse to entertain such an appeal, but where such an appeal is preferred after the period of limitation, the Tribunal has the discretion to entertain or not to entertain such an appeal. Similarly, the Tribunal may not entertain an appeal, in a given case, even if the period of 6 months for preferring the appeal has expired. In other words, it is not mandatory for the civil servant to prefer an appeal to the Tribunal against the omission by the competent authority to pass any order on the civil servant’s appeal, revision, petition or representation and he may wait until such time that the order on his appeal, revision, petition or representation is made. When, however, the order is passed, he must prefer an appeal within the period of 60 days from the date of making of the order appealed against.

39. In the light of the law, as indicated hereinabove, let me, now, turn to the facts of the present case to ascertain if the appeal entertained by the learned Tribunal was barred by limitation.

40. While considering the above aspect of the matter, it is important to bear in mind that the appointments of the member of the Special batch were made, on 3.7.1993, pursuant to the advertisement, dated 29.8.1992 ; whereas the appointments of the members of the Direct Batch were made, on 30.8.1993, pursuant to the advertisement issued on 23.6.1992. Thus, though the appointments of the members of the Special batch were prior in point of time, the fact remains that the advertisement, in question, pursuant to which the members of the Special batch had applied for appointment and also their selection for appointment were subsequent to the advertisement for, and selection of the members of the Direct Batch. The fact that the private respondents, as members of the Direct Batch, had made representation to the competent authority seeking seniority over the Special batch soon after confirmation of the services of the members of the Special batch and also the fact that the DGP, Assam, had himself, vide his letter dated 13.4.1998, proposed to the Department of Home, Government of Assam, that the members of the Direct Batch be given seniority over the members of the Special batch have not been disputed and could not be disputed. The letter, dated 1.4.1999, aforementioned issued by the Home (A) Department, Govt of Assam, on which all the parties to the writ petition rely, clearly indicates that it is by this letter, dated 1.4.1999, that the Government, for the first time, communicated to the DGP, Assam, that the proposal contained in the letter, dated 13.4.1998, aforementioned on the representation made by the members of the Direct Batch seeking seniority over the members of the Special batch had not been accepted by the Government on the ground that as per the provisions of Rule 18(1) of the APS Rules, 1966, seniority has to be counted from the date of the appointment in service meaning thereby that according to the Government, since the date of appointment of the members of the Special batch was earlier than the date of appointment of the members of the Direct Batch, the members of the Special batch were, in terms of the provisions of Rule 18(1), senior to the members of the Direct Batch. On the day, i.e., 1.4.1999, when this communication was made by the Government to the DGP, Assam, a provisional gradation list, dated 12.3.1999, was circulated by the DGP, Assam, calling for objections, if any, and in pursuance thereof, the members of the Direct Batch submitted their objections on 29.4.1999. This fact has been mentioned in para No. 20 of the Memorandum of appeal preferred before the Tribunal and is not in dispute. The contents of para No. 2 aforementioned also indicate that no order was passed by the Government on the representation, dated 29.4.1994, aforementioned, submitted by the appellants therein.

41. What emerges from the above discussion is that though the provisional gradation list, dated 12.3.1999, was circulated, as rightly contended by Mr. KN Choudhury, on 1.4.1999, the fact remains that the letter dated 1.4.1999, also, at the same time, directed the officers concerned to submit their objection, if any, against the said provisional gradation list. This circular further directed that if no representation was received within 30 days of the date of issue of the notification/ circular, the gradation list would be treated as final. Reacting to the letter, dated 1.4.1999, aforementioned issued by the DGP, Assam, the members of the Direct Batch, (who had preferred the appeal before the learned Tribunal) submitted their representation on 29.4.1999. Since no order has, admittedly, been passed for a period of six months from the date of making of the said representation/appeal, dated 29.4.1999, the proviso to Sub-section (2) of Section 4 came into play and the learned Tribunal acquired the jurisdiction, in terms of the proviso to Sub-section (2) of Section 4 of AAT Act of 1997, to entertain the appeal.

42. It may also be carefully noted that as the letter, dated 1.4.1999, circulated by the DGP, Assam, had directed the officers concerned to submit their objections, if any, to the said provisional gradation list, it was one of the remedies, which had been made available to the private respondents (appellants before the Tribunal) as members of the Direct Batch, and without exhausting the remedy, which the letter, dated 1.4.1999 aforementioned, had so provided, the appellants before the Tribunal could not have preferred the appeal, for, the appeal would have, if preferred, not maintainable under Sub-section (2) of Section 4.

43. Considered thus, it is clear that since with the publication of the provisional gradation list, dated 12.3.1999, the civil servants concerned were provided with the remedy of preferring their objections if any, to the said gradation list, they could not have preferred appeal before the Tribunal, for, such appeal would not have been maintainable in terms of Sub-section (2) of Section 4 without exhausting the remedy so made available to them. Hence, the question of appeal having become barred under Section 5 of the AAT Act of 1997, did not arise at all. Far from this, the private respondents, namely, the appellants before the Tribunal having exhausted the remedy, which was made available to them, in terms of directions contained in the circular dated 1.4.1999, aforementioned, become entitled to prefer the appeal, in terms of the proviso to Sub-section (2) of Section 4 of the AAT Act of 1997, which the appellants before the Tribunal accordingly did. In short, thus, the appeal, in question, was not barred by limitation and the impugned order passed by the learned Tribunal cannot interfered with on this ground.

Point No.(iii)(a)

44. Let me, now, come to the question as to whether the appointment of the members of the Special batch was made in accordance with the provisions of the relevant Rules of recruitment ?

45. The question, posed above, brings us, in turn, to the Assam Police Service Rules, 1966, for, there is no dispute before me that it is under the provisions of the APS Rules, 1966, that the appointments for both the Batches were made. While dealing with this aspect of the case, let me, first, ascertain as to what are the different modes and methods of recruitment to the Assam Police Service.

46. It is Rule 5, which lays down the methods of recruitment to the Assam Police Service. Rule 5 reads as follows :

5. Methods of recruitment to the service. – (1) Recruitment to the service, after the commencement of these rules, shall be by the following methods, namely :

(a) by a competitive examination conducted by the Commission ;

(b) by promotion of confirmed Inspectors of Police ; and

(c) by selection, in special case, from amongst –

(i) persons other than Inspectors of Police serving in connection with the affairs of the Government; and

(ii) other persons having qualifications and experiences eminently suitable for service in the Police department in the rank of Deputy Superintendents of Police :

Provided that fifty per cent of the total number of posts in the cadre shall be filled up by recruitment under Clauses (a) and (c) and the other fifty per cent exclusively under Clause (b) and that the number of posts filed up under Clause (c) above shall not at any time exceed five per cent of the total number of posts in the cadre and one post in any particular year.

(2) Notwithstanding anything contained in Sub-rule (1) persons who were officiating in the Assam Police Service prior to the commencement of these rules and persons promoted to officiate in the rank of Deputy Superintendent of Police against temporary posts not borne in the cadre in accordance with the provisions of Rule 7 after commencement of these rules, shall be absorbed in the cadre against vacancies occurring in the promotion quota of fifty per cent of the cadre in the order of seniority determined on the basis of length of continuous officiation in the rank of Deputy Superintendent of Police.

(3) Recruitment to the service shall be to junior grade of cadre.

47. The proviso to Rule 5(1) clearly mentions that the number of posts filled up under Clause (c) above shall not, at any time, exceed five per cent of the total number of posts in the cadre and one post in any particular year. Thus, the proviso to Rule 5(1) not only imposes an embargo on recruitment of more than 5 per cent of the total number of posts in the cadre by special drive in terms of Rule 5(1)(c), but it also makes it clear that at no point of time, the appointment, in terms of Clause (c) of Rule 5(1), shall be of more than one post in a particular year. The firmness of the language employed in the proviso to Rule 5(1) clearly shows that at any rate, in a given year, there cannot be more than one appointment in terms of Rule 5(1)(c).

48. In the present case, the Direct Batch was, admittedly, recruited in terms of the provisions of Rule 5(1)(a); whereas the recruitment of the Special batch is claimed to be under Rule 5(1)(c). In fact, the advertisement, dated 29.8.1992, which invited applications for twenty posts of Assam Police Service (Junior Grade) mentioned that the applications were being invited for the said posts under Rule 5(1)(c). Hence, it is, now, required to be determined if the recruitment was made in terms of Rule 5(1)(c) and, if not, what was the extent of violation thereof and how does it affect the appointment and seniority of the Special batch vis-a-vis the Direct Batch.

49. It needs to be noted that while Rule 6 lays down the procedure for recruitment under Rule 5(1)(a), i.e., for direct recruitment and Rule 7 lays down the procedure for recruitment by promotion under Rule 5(1)(6), Rule 8 is the Rule, which lays down the manner of recruitment in respect of Rule 5(1)(c). Rule 8 states as follows : –

“8. Recruitment by selection. – (1) The Governor may, from time to time, for the purpose of recruitment to the service under Clause (c) of sub Rule (1) of Rule 5, call upon the recommending authorities to submit recommendations in respect of persons who –

‘ (a) are of outstanding merit and ability ;

(b) have, to their credit, not less than two years of experience in duties. comparable in status and responsibility to that of Deputy Superintendent of Police or eight years of experience in duties comparable in status and responsibility to that of Inspectors of Police;

(c) possess the academic qualification prescribed under Rule 10 ;

(d) are not above the age of 35 years on the 1st day of the year in which the recommendations are called for ; and

(e) are otherwise eligible, in the opinion of recommending authorities, to be appointed to the service.

(2) On receipt of the recommendations, the Governor shall refer them and also simultaneously send the character rolls/testimonials of character and service records/other relevant records of the persons recommended to the committees which will, after examination of the records forward to it and interviewing such of the persons recommended as it considers necessary, drawn up a list of persons in order of the preference, who are considered suitable for appointment to the service. The procedure, detailed in Sub-rules (4) to (7) of Rule 7, mutatis mutandis be followed in regard to the list of persons prepared under this sub-rule.

(3) For every recruitment, a separate list shall be drawn up and the list once approved by the Commission shall lapse immediately on the year’s quota of posts for persons under Clause (c) of Sub-rule (1) of Rule 5 having been filled up from the list.”

50. Since Rule 8(2) lays down that the procedure detailed in Sub-rules (4) to (7) of Rule 7 shall mutatis mutandis be followed for the purpose of recruitment to be made in terms of Rule 5(1)(c), a careful examination of Sub-rules (4) to (7) of Rule 7 is essential. Let me, now, quote hereinbelow Sub-rules (4) to (7) of Rule 7 :

“7. Recruitment by promotion. – (1) There shall be a Selection Committee consisting of the following, namely,

(a) Chairman, Assam Public Service Commission, or, where the Chairman is unable to attend, a Member, Assam Public Service Commission nominated by him ;

(b) Chief Secretary to the Government;

(c) Inspector General of Police ; ”

(d) A senior Deputy Inspector General of Police to be nominated by Chief Secretary;

(e) Secretary to the Government of Assam in the Home Department or any other officer of the Home Department nominated on his behalf by the Chief Secretary. The Chairman, Assam Public Service Commission or the Member; Assam Public Service Commission, as the case may be shall preside at the meeting of the Selection Committee at which he is present.

(2) The Committee shall meet once in every year or more frequently if called upon to do so by the Governor to select and draw up a list of persons considered suitable for promotion to the service from amongst the persons confirmed in the rank of Inspector of Police who, on the first day of January of that year, have completed not less than eight years of service in the rank of Inspector of Police. The Inspector General of Police shall, on intimation of the date of meeting of the Committee given to him by the Government, forward to the Committee a list of all confirmed Inspectors of Police who have to their credit the necessary qualifying service along with their character rolls, personal files and other relevant papers.

(3) The Committee shall base the selection on merit and suitability in all respects with due regard to seniority and the following aspects of an officer, viz. –

(a) Personality and character ;

(b) Tact, energy and general intelligence ;

(c) Integrity; and

(d) Previous record of service.

(4) The list prepared by the Committee shall give the names in order of preference and the total number of such names shall not be more than double the number of vacancies that may arise in the promotion quota of the cadre and the ex-cadre temporary posts of the rank of Deputy Superintendent of Police during a period of approximately one year thereafter. In every case where in drawing up the list the Committee changes the order of seniority of any person in the rank of Inspector of Police or supersedes any one in that rank by omission of his name, the Committee shall record in writing the reason for such change or supersession.

(5) The Committee shall forward the list to the Governor and on receipt of the list the Governor shall forward the same to the Commission together with the character rolls and other relevant papers.

(6) The Commission shall consider the list prepared by the Committee along with other documents received from the Governor or on receipt of other documents as may be called for by the Commission unless it considers any change necessary, approve the list. If the Commission considers any change necessary, it shall inform the Governor of the changes proposed and after taking into account the comments, if any, of the Governor, may approve the list finally with such notification, if any, as may in its opinion be just and proper.

(7) The list, as finally approved by the Commission, shall be forwarded to the Governor along with all the papers received under Sub-rules (5) and (6).

51. A careful perusal of Rule 8 read with Sub-rules (4) to (7) of Rule 7 of the APS Rules, 1966, shows that it is only when the Government, for the purpose of recruitment to the Assam Police Service under Clause (c) of Sub-rule (1) of Rule 5, calls upon the “recommending authorities” to submit recommendations that the process of recruitment by selection, in terms of Rule 8, commences. The “recommending authority”, according to Rule 2(h), means the head of the department under whose administrative control a person is serving for the time being and the Inspector General of Police for the purpose of Rule 5(c)(ii).

52. Pausing at this stage, one can safely point out that Rule 8, which relates to recruitment of persons in terms of Rule 5(1)(c), does not conceive of inviting of direct applications by the APSC inasmuch as the process of selection envisages making of recommendation by the “recommending authority”, when called upon to do so by the Government. This apart, recommending authority is required to make recommendation in respect of persons who (a) are of outstanding merit and ability; (6) have, to their credit, not less than two years of experience in duties comparable in status and responsibility to that of Deputy Superintendent of Police or eight years of experience in duties comparable in status and responsibilities to that of Inspectors of Police ; (c) possess the academic qualification prescribed under Rule 10 ; (d) are not above the age of 35 years on the 1st day of the year in which the recommendations are called for; and (e) are otherwise eligible, in the opinion of “recommending authority”, to be appointed to the service.

53. In the case at hand, apart from the fact that though Rule 8(1)(d) lays down that the person to be recommended under this Rule shall not be older than 35 years on the first day of the year in which the recommendations are called for, the advertisement, dated 29.8.1992, made persons up to the age of 45 years, as on 1.1.1992, eligible for making application.

54. Thus, apart from the fact that there could not have been more than one appointment by way of special recruitment under Rule 5(1)(c), no one, who was above the age of 35 years, could have been recruited and no one, except on the basis of the recommendations made by the recommending authorities, could have been recruited, the advertisement, in question, invited applications directly from persons ignoring the requirement of the recommendations to be made by the recommending authorities. Instead of the Government calling for recommendations from the recommending authorities, it was the APSC, which had directly invited applications, though the APSC had no power to do so. This apart, the APSC had invited applications from persons above the age of 45 years, which power also the APSC did not have. Furthermore, the APSC called for applications for filling up of as many as 20 posts as against the permissible limit of only one post.

55. Coupled with the above, Rule 8(1)(6) lays down that a person to be recruited under Rule 8 must have, to his credit, not less than two years of experience in duties comparable in status and responsibility to that of Deputy Superintendent of Police or eight years of experience in duties comparable in status and responsibility to that of Inspectors of Police. However, throwing the mandate of Rule 8(1)(6) also to the wind, the APSC selected some persons and the Government appointed them. This is clear from the fact that it could not be disputed though raised by the petitioner in WP(C) No. 69/2003, that Shri Pratap Sinha and Shri Niharendu Shil (since expired) were Sub-Inspectors of Police, when they had applied for recruitment in response to advertisement, dated 29.8.1992, aforementioned and were, eventually, selected despite the fact that they were not qualified under Rule 8(1)(6) of the APS Rules, 1966, inasmuch as Rule 8(1)(6) prescribes that the minimum qualification should be not less that two years of experience in duties comparable in status and responsibility to that of Deputy Superintendent of Police or 8 years of experience in duties comparable in status and responsibility to that of Inspectors of Police. Similarly, Shri Pradip Ranjan Kar, an Assistant Jailor, equivalent in rank to a Sub-Inspector of Police, Shri Tarun Chandra Bora, who was merely a constable of police, and Shri Krishna Kanta Baishya, who was Assistant Sub-Inspector of APRO, were all persons, who were not even eligible for consideration for recruitment in terms of Rule 8(1)(6), applied in pursuance of the advertisement, dated 29.8.1992, aforementioned and got appointed. In the case of Shri Khanindra Kumar Choudhury too, it is not in dispute that he was Inspector of Excise with less than 8 years of service, whereas the Rule requires that not only that the person, who is considered for appointment, shall be of the rank of Inspector of Police in status and responsibility, but that he should also have served for 8 years in the rank of Inspector of Police.

56. Yet another mandatory requirement, in terms of Rule 5(1)(c), for selecting not more than one person, in a given year, is that the person concerned must be a person, who is, according to Rule 8(1)(a), of outstanding merit and ability.

57. The expression ‘outstanding merit and ability’, occurring in Rule 8(1)(a) of the APS Rules, 1966 was considered by the Apex Court in PM Bayas v. Union of India, , wherein similar expression was used in the relevant Rules for making special recruitment. The Apex Court, in the said case, has held that it is outstanding merit and ability of a person, which makes him a “special case”. The Apex Court observed as follows : –

“9. We may examine the scheme of the Rules and Regulations. Rule 4(1) of the Rules provides four sources of recruitment of the IAS. The competitive examination and by promotion of substantive members of the State Civil Service are the two main source of recruitment. Rule 4(1)(c) provides recruitment to IAS “by selection, in special cases from among persons, who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of the State Civil Service”. “In special cases from among persons: means the ‘selection as special cases of the persons who have established their outstanding merit and ability while serving the State. Members of the State Civil Service who are not ‘outstanding’ but are only ‘good’ and ‘very good’ are also eligible to be considered for appointment to IAS but under Rule 8(2) of the Rules, it is only an ‘outstanding’ officer who is eligible. It is the outstanding merit and ability which makes him a ‘special case’ in terms of Rule 8(2) of the Rules. Rule 8(2) of the Rules read with Regulation 3 of the Regulations lays down the procedure for making the special selection provided under Rule 4(1)(c) of the Rules. The Central Government, being the appointing authority to the IAS, has to be finally satisfied about the existence of the “special circumstances” as a condition precedent for making special recruitment. The “special circumstances” are to be spelled out from Rule 8(2) of the Rules read with Regulation 3 of the Regulations. Rule 8(2) which talks of ‘outstanding ability and merit’, when read with Regulation 3(1) and 3(4A) of the Regulations, makes it clear that the ‘special circumstances’ required to be seen are (i) the existence of officers with 12 years of continuous service in a gazetted post under the State Government – other than State Civil Officers – who are of outstanding merit and ability and (ii) the satisfaction of the State Government that, in public interest, it is necessary to consider such officers for promotion to the IAS.

10. Reading Rule 8(2) and the Regulations together, it is further clear that the process of selection has to be initiated by the State Government and as such, it is for the State Government in the first instance to be satisfied regarding the existence of the ‘special circumstances’…”.

58. In the case at hand, the process of selection was initiated by the authorities, who were wholly incompetent to initiate the process and it was done without evaluating the comparative merit of those persons, who had two years of experience of serving either in the posts, which carried the duties, responsibility and status of the post of Deputy Superintendent of Police or who had eight years of experience in serving in such posts, which carried the duties, responsibility and status of the post of Inspector of Police. A careful reading of Rule 8 makes it abundantly clear that the process of selection has to be initiated by the State Government and it is the Head of Department concerned, who shall consider the merit of the candidate concerned and it is only a person of outstanding merit and ability, whose name can be recommended by the Head of the Department concerned and upon such recommendation made by the recommending authority, the Committee, which is constituted in terms of Rule 7(1) of the APS Rules, 1966, shall consider the same and, then, appointment may be made in respect of one post in one year under Section 5(1)(c).

59. The above discussion amply demonstrates that the whole scheme of the APS Rules, 1966, is a aimed at finding out, in a given year, one person, who is eligible and is of outstanding merit and ability, for appointment in terms of Rule 5(1)(c). The exercise so indicated by the APS Rules, 1966, is a rigorous exercise and it cannot be reduced to a complete farce by throwing over-board the entire scheme, purport and object of Rule 8 and the underlying meaning of the other relevant provisions of the APS Rules, 1966.

60. The decision taken in the meeting held, on 25.5.1992, between the then DGP, Assam, and the Chairman, APSC, to make recruitment by purportedly taking resort to Rule 5(1)(c) was not a decision taken in terms of Rule 8 of the APS Rules, 1966 and/or in terms of the scheme perceived by the said Rules and the same was not supported by any authority of law. This decision cannot be treated as a decision taken by the Government.

61. Though, at the first blush, Rule 5(1)(c)(ii) appears to project as if even a person, other than one, connected with the affairs of the State of Assam, is found suitable for service in the Police Department in the rank of Deputy Superintendent of Police, can be selected, a closer-analysis of the provisions of Rule 5(1)(c)(ii) read with Rule 2(h), which defines “recommending authority”, indicates that the case of such a person too, who is not Inspector of Police having requisite 8 years of experience may be recommended by the Head of the Department of the State Government under whose administrative control the person has been serving. Head of the Department will certainly not include the Head of the Department of a Government other than that of the State of Assam. The impression that a person, who is not connected with the affairs of the State of Assam, cannot be recommended for appointment, in terms of Rule 5(1)(c), gets strengthened from the fact that it is a ‘Committee’, which has to evaluate the suitability of the person recommended for appointment in terms of Rule 5(1)(c).

62. The definition of “Committee”, given in Rule 2(c) read with Rule 7, shows that the selection committee is also of the State Government and the State Government cannot, therefore, consider the case of a person, who is not serving in connection with the affairs of the State of Assam.

63. A cautious reading of Rule 5(1)(c) shows that in the selection process, only those persons are eligible for consideration, who satisfy the requirements of either Rule 5(1)(c)(i) or Rule 5(1)(w). Rule 5(1)(c)(i) shows that the person to be considered has to be serving “in connection with the affairs of the Government”. The word “Government” has been defined in Rule 2(e) as “the State of Assam”. This definition is exclusive in nature. Hence, a person, who is not connected with the affairs of the State Government of Assam, cannot be considered for selection under Rule 5(1)(c)(i) ; whereas some members of the Special batch were, admittedly, retired and even not connected with the affairs of the Government of Assam.

64. Thus, what follows from the discussion held above is that not only that many of the persons, who got selected as members of the Special batch, were not eligible for consideration for appointment in terms of Rule 5(1)(c), but that the entire procedure, which Rule 8 makes it ‘ obligatory to be followed for the purpose of recruitment to the service under Clause (c) of Sub-rule (1) of Rule 5 of the APS Rules, 1966, was, admittedly, not followed in the present case and was, in fact, twisted, turned, mutilated and flouted in every conceivable manner leading, eventually, to the appointment of the members of the Special batch.

Point (iii)(b)

65. Let me, now, turn to the question as to whether the appointment of the Special batch was arbitrary, mala fide and discriminatory vis-a-vis the appointment of the Direct Batch ?

66. While dealing with the above aspect of the matter, it needs to be noted that though, at one stage, a faint attempt was made to contend that the recruitment of the Special batch was not in gross violation of the relevant provisions of the recruitment contained in the APS Rules, 1966, it was, ultimately, contended, on behalf of the Special batch, particularly, by Mr. KN Choudhury that there might be some infractions of the relevant Recruitment Rules in selecting and appointing the Special batch, but these infractions need to be ignored as cases of “deemed relaxation”. In other words according to Mr. Choudhury, the recruitment of the Special batch was in “deemed relaxation” of the relevant provisions of the recruitment contained in the relevant Recruitment Rules, namely, the APS Rules, 1966. Support for his submission that the recruitment of the Special batch be treated to have been made in “deemed relaxation” of the relevant provisions of the APS Rules, 1966, Mr. Choudhury has placed reliance on GS Lamba v. Union of India, , and Bachan Singh v. Union of India, .

67. Controverting the above submissions made on behalf of the Special batch, Mr. N. Dutta has submitted that recruitment of a person by throwing over-board the entire Recruitment Rules cannot be treated as relaxation, for, in such a case, the Recruitment Rules become wholly nugatory and otiose. This apart, contends Mr. Dutta, the findings of the learned Tribunal show that the recruitment of the Special batch had been made by blatantly flouting the provisions of the Recruitment Rules, the same was arbitrary and mala fide.

68. Reacting to the submission made by Mr. Dutta, it has been pointed out, on behalf of the Special batch, by Mr. KN Choudhury and Mr. BR Bhattacharjee that the learned Tribunal came, at one stage, to the conclusion that the initial appointment of the Special batch was neither under challenge nor could the same be challenged at a distant point of time, but, at the same time, it directed for revision of the said provisional gradation list in favour of the Direct Batch. There being no challenge to the appointment of the Special batch and/or the methodology adopted for the same, there was, according to Mr. Choudhury and Mr. Bhattacharjee, no occasion for the learned Tribunal to embank upon the question as to whether the appointment of the Special batch was in accordance with the APS Rules, 1966, or not.

69. Trying to impress upon this Court that the appointment of the Special batch was never the subject-matter of challenge in the appeal before the learned Tribunal, Mr. KN Choudhury has drawn the attention of this Court to the observation in the impugned order of the learned Tribunal, which reads, “This appeal basically is for fixation of inter-se seniority between the two different batch of recruits to the Assam Police Service.”

70. Attempting to justify the manner of recruitment of the Special batch, Mr. KN Choudhury has submitted that from the Cabinet Memorandum aforementioned, it is evident that the Assam Police was facing a crisis arising out of non-availability of young officers directly recruited in the rank of Deputy Superintendent of Police for long, the last direct recruitment having been done in the year 1986, though the strength of the Assam Police Service had grown considerably owing to creation of new districts, sub-divisions and complex law and order situation prevailing in the State and it was felt imperative to have special recruitment. The relevant consideration, i.e., infusion of young blood in the officer cadre of the State to provide effective leadership to the force was, according to Mr. Choudhury, taken note of, while preparing the Cabinet Memo, which, ultimately, formed the basis for recruitment of twenty officers by way of special drive. The competent authority also took note of the definite advantage of going ahead with the special recruitment, i.e., recruitment by dispensing with various facets of selection process, i.e., police verification, training, etc., so contends Mr. Choudhury. The Home Department, Government of Assam, in order to meet the immediate requirement of officers in the rank of Deputy Superintendent of Police, mooted, insists Mr. Choudhury, the proposal for recruitment of the Special batch, which, ultimately, materialised after following the procedure prescribed in the APS Rules, 1966, but while making the special recruitment, certain provisions of the Rules can be said to have been relaxed in exercise of the Government’s powers under Rule 23 in order to mitigate the hardship as far as the candidates are concerned as well as to meet the special circumstances, i.e., the law and order situation prevailing at the relevant point of time. Therefore, it cannot be said, contends Mr. Choudhury, that the recruitment of the Special batch was fraught with illegality, arbitrariness and mala fide, which calls for interference, as sought to be contended by the Direct Batch.

71. Whether the appointment of the members of the Special batch can be held to be a case of “deemed relaxation”, as sought to be projected by Mr. KN Choudhury, is an aspect of the present writ petitions, which I shall allude to and discuss a little later.

72. At this stage, it is of immense importance to note that in the memorandum of appal preferred before the learned Tribunal, the appellants, who were members of the Direct Batch, asserted that three of the members of the Special batch had sat in the preliminary examination held, on 30.8.1992, along with the appellants and though they had not succeeded, yet subsequent thereto, in the special recruitment made, these three rejected persons came to be appointed as members of the Special batch. These assertions of the appellants aforementioned went unchallenged by the respondents/members of the Special batch and have remained unassailed till date. There can, therefore, be no escape from the conclusion that though the recruitment under Rule 5(1)(c) is required to be made of persons, who have ‘outstanding merit and ability’, the recruitment made by way of special drive, in the present case, was an eye was inasmuch as, at least, three of the selectees in the Special batch were far inferior, in merit, to the members of the Direct Batch and yet they came to be selected and appointed ignoring, as I would show hereinbelow, the just and lawful right of appointment of the members of the Direct Batch.

73. It is also imperative to note that though it has been agitated, on behalf of the Special batch, that the recruitment of the members of the Special batch as members of the Assam Police Service had not been challenged in the appeal preferred before the learned Tribunal, a bare glance at ground No. (IV) of the memorandum of appeal shows that the appellants aforementioned had, in no uncertain words, assailed the appointment made by way of special recruitment drive on the ground that the recruitment was not in compliance with the provisions contained in the prescribed rules. Thus, it cannot be held that at no point of time, in the appeal preferred before the learned Tribunal, the legality or validity of the recruitment or appointment of the members of the Special batch was not under challenge.

74. However, for the purpose of appreciating the controversy involved in this batch of writ petitions with regard to the manner in which the recruitment of the Special batch was made and whether the recruitment suffered from arbitrariness and mala fide, it is pertinent to take note of the observations of the learned Tribunal made on the basis of perusal of the relevant records, which are, undoubtedly, startling. The correctness of the observations so made are, interestingly enough, not in dispute. At para 15 of its order, the learned Tribunal observed thus :

“We have noted with shock the manner and conduct in which the process of special recruitment was done for filling up twenty vacancies. It becomes apparent from the records that the proposal for resorting to such special recruitment process first emanated some time in August 1988 and it was started “Although because of various occasions in the law and order front and also requirement of personnel for handling extremists, detection and deportation of foreigners some posts were created, the DGP could not fill up those vacancies due to dearth of officers.” (SL.30/C File No. HMA 478/86). In this context, even the Personnel Department also vide their endorsement dated 18.7.1989 (Page 31/N ibid) observed :

“APSC has already published the advertisement on 21.3.1989 for filling up the vacancies through Combined Competitive Examination, 1989 and the Preliminary Examination has been held on 16.7.1989. as such there is no scope for Special Recruitment for APS at this stage.”

Even then the DGP office vide letter No. FA/1/44/Pt/92, dated. 17.8.1991 (Sl.7/C ibid) made another proposal for special recruitment. They wrote “It is felt that with a view to stagger the intake which may create seniority and professional problem later and also to enrich the Department with officers of wide experience it is proposed to enlist twenty Dy. S.P from other departments under Rule 5 Section C of the Assam Police Service (Recruitments) Rules 5”. In pursuance of such proposals and communications, there had been a meeting in the chamber of the Chairman, APSC and the manner and modalities for holding the interview and tests for the special recruitment were settled.

It is, thus, seen that the issue of the advertisement No. 12/92 was only a sequel of all such communications and transactions.

…”

75. Coupled with the above, it is also pertinent to note that the Cabinet Memorandum, as it transpires now and already discussed hereinabove, never received the approval of the Cabinet. Hence, the proposal, which was circulated in the form of the Cabinet Memorandum aforementioned, remained as a mere proposal.

76. It is equally important to note that under Rule 10(1)(a) of the Assam Rules of Executive Business, 1968, no department shall, without previous consultation with the Finance Department, authorise any orders, which may either immediately or by their repercussion, will affect the finances of the State. Rule 10(2) of the said Rules clearly states that no proposal, which requires the previous consultation with the Finance Department under this Rule, but in which the Finance department has not concurred, may be proceeded with unless a decision to the effect has been taken by the Cabinet.

77. In the case at hand, the proposal, which was circulated in the form of the Cabinet Memorandum, in question, was prepared under Rule 17 of the Assam Rules of Executive Business, 1968. Rule 17 states that when it has been decided to bring a case before the Cabinet, the Department to which the case belongs shall, unless the Chief Minister otherwise directs, prepare a memorandum indicating with sufficient prevision on the salient facts of the case and the points for decision. Such memorandum and such other papers as are necessary to enable the case to be disposed of shall be circulated to the Ministers. Copies of the memorandum and other papers shall, at the same time, be sent to the Governor. The Cabinet Memorandum, in question, did not, however, if I may repeat, crystallise into a Cabinet decision.

78. Thus, notwithstanding the fact that the proposal for recruitment of twenty Deputy Superintendents of Police, as a special case, was submitted by the Home Department, the Government did not agree to the proposal, yet the decision to make the recruitment and the manner and modalities for holding of the interview and test for the purpose of recruitment of the Special batch was taken in the chamber of the Chairman, APSC, on the basis of a discussion held between the then DGP, Assam, and the Chairman, APSC. The decision, so reached, cannot be termed as a decision of the Government. Following, however, this decision, the members of the Special batch were selected by, as pointed out hereinabove, throwing over-board, in entirety, the relevant recruitment Rules.

79. Thus, the chronology of events leading to the appointment of the members of the Special batch clearly reveals that the advertisement in respect of the Direct Batch was first in point of time, even the result of the Direct Batch was conveyed by the APSC to the Government first in point of time, i.e., as early as 26.4.1993; but the Government chose to make any appointment from the select panel of the Direct Batch, though their selection was in accordance with the relevant recruitment Rules without, however, assigning any reason therefor and asked for the result of the Special batch from the APSC by its letter, dated 28.5.1993 ; and repeated its request for the result of the Special batch by its letter, dated 7.6.1993, though the entire exercise for selecting the Special batch was wholly de hors the relevant recruitment Rules. The urgency shown by the Government to obtain the result of the examination held in respect of the Special batch is an indication that the Government was waiting, for no justified and valid reason, to, first, make appointment of the members of the Special batch, though selected in complete disregard of the Rules, and, then, issue appointment in respect of the members of the Direct Batch, whose process of selection was never questioned. This impression gains strength from the fact that when the APSC conveyed, on 14.6.1993, to the Government the result of the examination held in respect of the Special batch, the Government came out with the appointment of the Special batch on 3.7.1993 and it was only thereafter that the Government, for some strange reasons, issued appointment to the members of Direct Batch on 13.8.1993. The chronology of the events, thus depicted, clearly shows colourable exercise of powers by the Government, the same smacks of arbitrariness and mala fide.

80. Coupled with the above, it is also of great significance to note that the proposal for recruitment of the Special batch, as reflected from the Cabinet Memorandum aforementioned as well as other materials on record, was purportedly on account of the fact that the Department was in the need of young officers in the grade of Deputy Superintendent of Police, for, if the posts of Deputy Superintendents of Police were filled up by promotion, it was not possible to have young officers. Interestingly enough, however, contrary to the provisions of Rule 5(1)(c), which prescribes upper age limit for selection to be 35 years and throwing to the wind the very purpose for which special recruitment was sought to be made, the age was relaxed to 45 years and persons, who were born in 1942, came to be selected in the year 1992. In short, thus, at the time of appointment, many of the officers recruited under the special drive were as old as 50 years; whereas proposal for the special drive was made on the pretext of recruiting young officers.

81. Situated thus, one has no option but to hold that the allegations of arbitrariness and mala fide and/or colourable exercise of powers levelled against the Government have substance and are true.

82. Though a person, whose name finds place in a select list, has no vested right to be appointed to the post to which he has been selected, the appointing authority cannot ignore the select panel or decline to make appointment on its whims and fancies. In fact, when a person is selected by a selection board and a vacancy to accommodate him exists, then, there can, ordinarily, be no justification for not appointing him and awaiting receipt of a subsequently prepared select panel for the purpose of giving appointment. While dealing with this aspect of the matter, I am tempted to quote the observations made by the Apex Court in RS Mittal v. Union of India, reported in (1995) Supp(2) SCC 230, which run as follows :

“… It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select penal or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government’s approach in this case was wholly unjustified.”

83. Turning to the case at hand, it is clear that not only that the Government kept sitting over the select penal of the Direct Batch for no justified reason, but that it also issued repeated letters to the APSC asking for the result of the Special batch, though the advertisement for selection of the Special batch was later in point of time than the advertisement for selection of the Direct Batch. Not offering of appointment to the members of the Direct Batch in such a situation, in the absence of any explanation offered by the Government or by the members of the Special batch or discernible from the materials on record, cannot but be termed as arbitrary, mala fide, irrational, unreasonable, unjustified and colourable exercise of power. Such arbitrariness and mala fide are abhorred and discouraged by law and cannot be ignored.

84. I may also pause here to refer to Dalilah Sojah v. State of Kerala , in Dalilah Sohaj (supra), the case of the appellant was as follows :

“3. The selection for the said post of Legal Assistant took place and a select list was issued on 23-6-1971. The name of the appellant was included therein. In view of the fact that there were some reservations which have been made for the OBCs and there was a likelihood that if the appellant had been appointed there would have been a disturbance of the 50 per cent reservation which was permitted, the appointment of the appellant was not made and she was passed over. It is an admitted fact that the appellant was entitled to be appointed against the future vacancy as and when it arose.

4. On 6-10-1972, two vacancies were reported and requisition was made for the selection to these posts. Even though the appellant was entitled to be appointed against one of these posts, no appointment was in fact made. Thereafter, as fresh selection was made which resulted in a new list being prepared on 22-3-1974. The respondents in both these appeals were included in the said list but the name of the appellant was placed at Serial No. 1 inasmuch as she had been passed over from the earlier list which had been prepared on 23-6-1971.

5. The respondents in Civil Appeal No. 2967 of 1984 filed a writ petition in the High Court of Kerala, inter alia, challenging the appointment of the appellant herein and her being placed at Serial No. 1 in the select list.”

85. Dealing with the above situation, the Apex Court observed and held as follows :

“It appears to us that the appellant has been made to suffer for no fault of hers. From the facts enumerated hereinabove, it is quite clear that when two vacancies arose on 6.10.1972, the appellant had a right to be appointed against one of the said vacancies. At that point to time, none of the respondents had even been selected for appointment to the said post, their selection having been notified only on the second list, which was prepared on 22.3.1974. The right which had, therefore, accrued to the appellant for appointment against a vacancy after she had been duly selected could not have been taken away merely because of the delay or inaction on the part of the Government in notifying her appointment. The High Court, in our opinion, fell in error in observing that the appellant’s name could not be placed at senior No. 1 in the second list. What was in fact done was that the appellant was being appointed against the vacancy which had arisen on 6.10.1972 when, admittedly, the select list was still alive. We see no reason under these circumstances when the appointment of the appellant has not been set aside as to why she should be deprived of the seniority. She was selected earlier in point of time than the respondents and her selection should have resulted as it must now with her filling the vacancy which had arisen on 6.10.1972.”

86. Though in the present case, the select list in respect of the Direct Batch had not been published, the fact remains that when the select list of the Direct Batch was available with the Government, vacancies for filling up the same by the members of the Direct Batch were also available, yet, for no rhyme or reasons, the Government obtained the select list in respect of the Special batch, whose selection was held later in point of time than the selection of the Direct Batch, and, upon so obtaining the select list in respect of the Special batch, appointed the members of the Special batch. Having been selected in a selection process, which commenced before the selection process of the Special batch, the Direct Batch was entitled to appointment against the available vacancies; but for no justified reason, the Government did not appoint them as indicated hereinabove. In a situation, such as this, one cannot help but reiterate that the appointment of the Special batch suffered from arbitrariness, mala fide and colourable exercise of powers.

Point No. (iii)(f)

87. Coming to the question as to whether WP(C) No. 69 of 2003 should not be entertained on the ground of delay, it may be noted that the writ petitioner in WP(C) No. 69 of 2003, while assigning reasons for belatedly approaching this Court, has, in brief, stated as follows :

“3. That it has come to the knowledge of the petitioner that some of his colleagues, who were appointed in the Assam Police Service (Junior Cadre) as Deputy Superintendent of Police through Direct recruitment, had filed an appeal, being registered as Appeal No. 79 ATA/99, in the Assam Administrative Tribunal at Guwahati, challenging the inter se seniority of the two batches of recruits, Special and Direct, in the Assam Police Service in 1993, and the Hon’ble Tribunal was pleased to allow the appeal, vide its judgment and order, dated 11-10-2002. In the said judgment, the hon’ble Tribunal has made certain stunning observations regarding the selection and appointment of the Special batch in pursuant to the aforementioned advertisement No. 12/82, which has impelled the petitioner to approach this hon’ble Court to file this petition praying for writ in the nature of Quo Warranto. The observations/opinion expressed by the hon’ble Tribunal unveiled the blatant flouting of the provisions of Assam Public Service Rules, 1966 and the mala fide of State respondents in the selection and appointment of the Special batch.

***** ***** *****

7. The petitioner states that the impugned selection and the impugned notifications are unfair, unreasonable, arbitrary and capricious and violative of the right guaranteed to the petitioner under article, 14 and 16 of the Constitution of India. The impugned appointments prejudicially affect the career prospect of the petitioner since the private respondents are sought to be made senior to the petitioner on the basis of such illegal appointments. The petitioner is being discriminated against without any reasonable basis or justification and he is being denied equality before law and/or equal protection under the law.

8… There has been a colourable exercise of power for collateral purposes and the impugned notifications can be justified only by reasons other than relevant and bona fide. There is malice in law as well as in facts reflected in the instant case.

9. The records of the impugned selection and the impugned notifications were not available to the petitioners earlier and the same was released to the public domain by the judgment and order, dated 11.10.2002 of the Assam Administrative Tribunal in Appeal No. 79 ATA/99. The petitioner has come to know that some of the private-respondents have approached this hon’ble Court under Article 226 of the Constitution of India against the aforesaid judgment and order, dated 11.10.2002 and 8081/2002, have been fixed for consideration for admission and/or final disposal on 22.1.2003 and as such the present writ application can be considered by this Hon’ble Court along with the aforesaid writ applications.”

88. It has been submitted, on behalf of the Special batch, that the present writ petition is not maintainable on the ground of inordinate delay.

89. Assailing the writ petition on the ground of delay, Mr. KN Choudhury has submitted that WP(C) No.69/2003 is not maintainable in its present form on account of inordinate delay as well as the conclusive finding of the learned Tribunal that the appointments of the Special batch have attained finality. Reference, in this regard, is made by Mr. KN Choudhury to Tilokchand Motichand v. H.B. Munshi, .

90. While dealing with the question of delay, which has been raised on behalf of the Special batch, it will be pertinent to quote the following observations of the Apex Court in Tilokchand Motichand (supra) :

“The question is whether this Court will inquire into belated and stale claims or take not of evidence of neglect of one’s one rights for a long time ? I am of opinion that not only it would (not ?) but also that it should (not ?). The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of Courts harm innocent parties if their emerge by reason of delay on the part of the person moving the Court. This principle is well recognised and has been applied by Courts in English and America.

11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will also depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.

12. Applying these principles to the present case what do I find ? The petitioner moved the High Court for relief on the ground that the recovery from his was unconstitutional. He set out a number of grounds but did not set out the ground on which ultimately in another case recovery was struck down by this Court. That ground was that the provisions of the Act were unconstitutional. The question is : can the petitioner in this case take advantage, after a lapse of number of years, of the decision of this Court ? He moved the High Court but did not come up in appeal to this Court. His contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presumed that he knew the exact ground of unconstitutionaly. Every body is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion he cannot abandon it to resume it after a number of years, because another person more adventurous than him in his turn got the statute declared unconstitutional, and got a favourable decision. If I were to hold otherwise, then, the decision of the High Court in any case once adjudicated upon and acquiesced in may be questioned in a fresh litigation revived only with the argument that the correct position was not known to the petitioner at the time, when he abandoned his own litigation. I agree with the opinion of my brethren Bachawat and Mitter, JJ, that there is no question here of mistake of law entitling the petitioner to invoke analogy of the article in the Limitation Act. The grounds on which he moved the Court might well have impressed this Court which might have also decided the question of the unconstitutionality of the Act as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it in appeal to this Court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think that this Court should apply the analogy of the article in the Limitation Act and give him the relief now. The petition, therefore, fails and is dismissed with costs.”

91. A careful reading of the observations made by the Apex Court in Trilokchand Motichand (supra), as quoted hereinabove, shows that the question as to whether a writ petition should or should not be entertained will depend on the facts of the case, breach of the right, remedy claimed and the reasons for the delay. Thus, mere delay in approaching the High Court with an application under Article 226 cannot be made a ground for shutting the doors of the High Court to such a petitioner. The High Court, before declining to entertain the writ petition, must make an endeavour to find out how the delay was caused. If the delay is not on account of negligence and/or laches on the part of the petitioner, the delay in approaching the Court cannot, in itself, be sufficient to reject the writ petition unless lack of vigilance, on the part of the petitioner, or his act of slumbering over his rights, is reflected from the materials on record.

92. In the case at hand, it is the specific case of the petitioner in WP(C) No. 69/2003 that it is upon pronouncement of the judgment and order, dated 11.10.2002, in the Appeal No. 79 ATA/99, (which stands impugned by the Special batch), that he came to know that some of his colleagues, who were also appointed along with the petitioner as DSP through direct recruitment, had preferred the said appeal, the Tribunal had allowed the appeal and made stunning observations regarding the selection and appointment of the Special batch, which has impelled the petitioner to approach this Court seeking a writ in the nature of Quo warranto, particularly, because the observations/opinion expressed by the learned Tribunal unveiled the blantant flouting of the provisions of the APS Rules, 1966 and the mala fide of the State respondents in making the selection and appointment of the Special batch. It is also the specific case of the petitioner in WP(C) 69/2003 that the records of the impugned selection and the impugned notification were not available to the petitioner earlier and the same were released to the public domain by means of the impugned judgment and order, dated 11.10.2002, aforementioned. It is the further case of the petitioner in WP(C) No. 69/2003 that he has come to know that some members of the Special batch have already approached this Court impugning the said judgment and order, dated 11.10.2002.

93. There is absolutely no material on record to show that the petitioner knew about the pendency of the said appeal through his colleagues and/or that the petitioner knew that the appointments of the members of the Special batch were completely de hors the relevant Rules and/or that the records of the Special batch were available to the writ petitioner even before the judgment was pronounced by the learned Tribunal as regards the blatant flouting of the provisions of the APS Rules, 1966, leading to the recruitment of the Special batch and/or that for the petitioner, in WP(C) No. 69/2003, the observations of the learned Tribunal were not stunning.

94. While considering the present writ petition, it is of immense importance to note that the members of the Special batch were appointed prior to the appointment of the members of the Direct Batch. Though some of the members of the Direct Batch were agitating with regard to the fact that their selection process having been commenced earlier and their selection having been over earlier than the selection of the members of the Special batch, they must be treated senior to the members of the Special batch, the present petitioner is not shown to have been agitating in this regard. In other words, as the pleadings of the parties and the materials on record disclose, the present petitioner had accepted the appointment of the members of the Special batch as fait accompli. There is nothing in the materials on record to show that the present petitioner knew that the entire selection process and the appointments of the members of the Special batch were completely de hors the relevant Rules. In such a situation, when the writ petitioner has approached this Court on having come to learn, after passing of the impugned judgment and order by the learned Tribunal, that the appointments of the members of the Special batch were entirely de hors the relevant Rules and mala fide, it cannot be said that there was any laches or negligence on the part of the writ petitioner in approaching this Court. When it was not within the knowledge of the writ petitioner that the members of the Special batch were selected and appointed by wholly ignoring the relevant recruitment Rules and that their entire process of selection and appointment was woven with mala fide, the question of the writ petition suffering from laches or negligence did not arise at all.

95. In the given facts and circumstances of the present case, there can be no escape from the conclusion that having stunned to learn the manner of recruitment of the members of the Special batch and the fact that some of the members of the Special batch have impugned the judgment and order, dated 10.11.2002, aforementioned, the petitioner has promptly approached this Court and the doors of this Court cannot be shut on his face by treating his writ petition as delayed. This apart, the members of the Special batch, as already held hereinabove, having not really become the members of the “service” within the meaning of the APS Rules, 1966, their right to continue to hold to the “service” as members of the “service” does not arise. If their appointments are challenged by a person, who is regularly appointed, on the ground that their appointments are wholly illegal and without jurisdiction, it will be no an answer for such illegal appointees to say that the claim of the person has become stale by efflux of time and the appointees have acquired an indefeasible right to hold to the service as members thereof unless the person, who challenges such appointments, is shown to have known that the appointments were de hors the relevant recruitment Rules, arbitrary, mala fide and yet he slept over his rights. In Tilokchand Motichand (supra), the appellant had himself moved the High Court agitating that the recovery from him was unconstitutional and to maintain such challenge, he set out a number of grounds, but did not pursue the ground on which, ultimately, in another case, such recovery was struck down by the Apex Court. The appellant, in Tilokchand Motichand (supra), having not preferred appeal against the order of the High Court, was held to be not entitled to relief. In this regard, the Apex Court observed, “In any event, having set the machinery of law in motion, he cannot abandon it to resume it after a number of years, because another person, more adventurous than him in his turn, got the statute declared unconstitutional and got a favourable decision.”

96. In the case at hand, contrary to the facts of the case of Tilokchand Motichand (supra), the petitioner accepted the appointment of the Special batch as valid until the time he came to learn about the stunning observations made by the learned Tribunal as regards the selection and appointment of the Special batch. However, once he came to know that the Special batch had come to be appointed mala fide by throwing the Rules over-board, he promptly approached this Court. Such an aggrieved person, (who is, as seen hereinabove, a real victim of the foul-play of the State and its instrumentalities) cannot be thrown out of the Court on ground of delay in approaching the Court, when there was no negligence or latches on his part.

97. Reliance has also been placed, on behalf of the Special batch, on the decision of BS Bajwa and Anr. v. State of Punjab and Ors., , to strengthen their submission that WP(C) No. 69/2003 needs to be dismissed on the ground of delay and latches on the part of the writ petitioner, namely, Bibekananda Das. In the case of BS Bajwa (supra), the Apex Court held as follows : –

7. .. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.

98. While considering the case of BS Bajwa (supra), it needs to be noted that this case was a case of pure and simple inter se seniority between the parties concerned. No question as regards the very entry into service of the persons, whose seniority was challenged, was under consideration. This apart, the specific finding of the Court was that the writ petition suffered from latches, because the grievances were expressed in the year 1984, whereas the entry into the service was in the year 1971. In the case at hand, for the reasons, which I have already noted hereinabove, the writ petitioner cannot be said to have slept over his rights and the writ petition cannot be treated to have become barred on account of latches, particularly, when he did not even know how arbitrarily, mala fide and in colourable exercise of powers, the Special batch had come to be selected and appointed.

99. In the case of Parveen Jindal v. State of Haryana, reported in (1994) SCC (L&S) 182, on which also the Special batch relies upon, it was held as follows : –

“6. Two questions arise, one, if the petitioners are entitled as a matter of law to re-employment and other if they have lost their right, if any, due to delay, Right to casual labourer employed in projects, to be re-employed in the Railways, has been recognised both by the Railways and this Court but unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned counsel for petitioners that they may be permitted to produce their identity cards, etc., before opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right and not for the sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of the petitioners we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed. We would have been persuaded to take sympathetic view but in absence of any positive material to establish that these petitioners were, in fact, appointed and working as alleged by them, it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1978.”

100. In Parveen Jindal (supra) too, the petition suffered from the latches on the part of the petitioner inasmuch as even after knowing as to what reliefs similarly situated persons (as the petitioners were) had already obtained, the petitioners did not agitate the matter for long 15 years and the reliefs, which they had, eventually, sought for from the Court, would have involved roving inquiry. It was in such circumstances that the Apex Court had no option, but to decline and did decline to the interfere in the matter. To the facts of the case, as presented in WP(C) No. 63/2003 and as discussed hereinabove, the decision in Parveen Jindal (supra) has absolutely no application.

101. That in a befitting case, even in a belatedly initiated judicial proceeding, Court may give relief is clear from not only Tilokchand Motichand (supra), wherein the position of the law on the subject of delay has been succinctly discussed, but also from the case of A Sagayanathan and Ors. v. Divisional Personal Officer, Southern Railway, , wherein the Apex Court directed the Tribunal to entertain the application, which was refused to be considered by the Tribunal on account of delay. In A Sagayanathan (supra), the Court held that mere delay cannot be a ground for not giving reliefs to the writ petitioner if he is, otherwise, found entitled thereto.

102. The Special batch also places reliance on Dr. MS Mudhol v. SD Halegkar, , in support of their submission that WP(C) No. 69/2003 may be rejected on the ground of delay. This was a case, wherein the appointment of a member of the teaching staff was challenged after 9 years and no explanation for belatedly approaching the Court could be offered. Since the challenge was posed after 9 years and no explanation for such delay was discernible, the writ petition ex facie suffered from not only delay but latches too and, hence, the Apex Court dismissed the same. The facts of Dr. MS Mudhol’s case (supra), thus, do not fit into the facts of the case at hand, when no latches on the part of the petitioner could be shown.

103. In Bhoop Singh v. Union of India, , which the Special batch has referred t and relied upon, the termination of service was challenged by the petitioner after long 22 years without any cogent explanation for delay. The writ petition was instituted merely on the ground that similarly situated other dismissed persons had been reinstated as a result of their earlier petition having been allowed. Here again, the case was a case of inordinate delay with no explanation for the delay having been offered. The writ petition, thus, suffered from latches. No such case for dismissal of the present writ petition could be made out by the Special batch.

104. Contrary to the cases, which have been cited and relied upon, on behalf of the Special batch, for dismissal of the writ petition, in WP(C) No. 69/2003, on the ground of delay, the present case is one in which though there is delay in approaching the Court, the fact remains that the delay has been cogently, satisfactorily and convincingly explained and no latches on the part of the writ petitioner could be, as discussed hereinabove, shown.

105. In the facts and circumstances of the case in hand, I have no shadow of doubt in my mind that the writ petition, in WP(C) No. 69/2003, cannot be dismissed on the mere ground of delay.

Point Nos. (iii)(c), (d) and (e)

106. Let me, now, turn to point Nos. (iii) (c), (d) and (e), namely, as to whether the infractions, if any, of the relevant Rules of recruitment in appointing the Special batch were to such an extent that the very appointments became illegal and void, (d) whether the relevant Rules of recruitment provide for relaxation and if so, what the permissible limits of such relaxation are and (e) whether the relevant Rules of recruitment were relaxed in respect of the Special batch at the time of making their recruitments? If not, whether such relaxation can be deemed to have been made, while recruiting the Special batch ?

107. I have already held, while discussing point Nos. (iii)(a) and (6), that at the time of recruiting the Special batch, not only that the recruitment was made in complete defiance of the Rules, but that the Rules were twisted, turned, mutiliated and flouted in every conceivable manner and that the same was arbitrary, mala fide and discriminatory. Hence, I have no hesitation in concluding that while appointing the Special batch, the Rules of recruitment were completely shelved as if the Rules did not exist, though the recruitment was projected to have been made by taking recourse to Rule 5(1)(c) of the APS Rules, 1966.

108. While dealing with the point Nos. (iii) (c), (d) and (e), it needs to be noted, if I may repeat, that though, at one stage, a feeble attempt was made, on behalf of the Special batch, to contend that the recruitment of the Special batch was not in gross violation of the relevant provisions of the recruitment contained in the APS Rules, 1966, it was, ultimately, contended, on behalf of the Special batch, particularly, by Mr. KN Choudhury that there might be some infractions of the relevant Recruitment Rules in selecting and appointing the Special batch, but these infractions need to be ignored as cases of “deemed relaxation”. In other words, according to Mr. Choudhury, the recruitment of the Special batch was in “deemed relaxation” of the relevant provisions of the recruitment contained in the relevant Recruitment Rules, namely, the APS Rules, 1966. Support for his submission that the recruitment of the Special batch be treated to have been made in “deemed relaxation” of the relevant provisions of the APS Rules, 1966, Mr. Choudhury has, if I may, once again, point out, placed reliance on GS Lamba v. Union of India, , and Bachan Singh v. Union of India, .

109. In order to justify that in the case at hand, Rule 5(1)(c) as well as Rule 8 of the APS Rules, 1966, should be deemed to have been relaxed by taking resort to Rule 23 thereof, Mr. MK Choudhury has, placing reliance on Pournami Oil Mills v. State of Kerala, reported in (1986) Supp SCC 728, submitted that it is a settled principle of law that where the authority making an order has the power conferred upon it by the statute to make an order passed by it and the order is made without indicating the provision under which it is made, the order would be deemed to have been made under the provision enabling the making of it.

110. While considering the case of Pournami Oil Mills (supra), it is important to note that this was a case in which the question raised was as to whether the notification issued by the Government granting exemption from payment of sales-tax was actually issued in exercise of its power under Section 8 of the Kerala General Sales Tax Act or not. Since the notification was issued granting exemption from payment of sales tax and such a notification could not but have been issued in exercise of power under Section 10, coupled with the fact that the Government did have the power under Section 10 to grant exemption from payment of taxes, the Court took the view that merely the factum of omission to mention the section or provision under which the notification was issued cannot be said to be without jurisdiction and must be inferred to have been issued under Section 10. In short, while in the present case, there is no order relaxing the Rules, there, indeed, existed a notification in Pournami Oil Mills (supra) granting exemption. The question, therefore, was as to what was the provision under which the notification was issued and the Apex Court answered by saying that the notification granting exemption could be inferred to have been issued under Section 10 of the said Act, for, it was Section 10 of the said Act, which had empowered the Government to grant such exemption.

111. In the case at hand, there is, admittedly, no order passed under Rule 23 relaxing any of the provisions of Rule 5(1)(c). Hence, the law laid down in Pournami Oil Mills (supra) does not really apply to the facts of the present case. However, even if the submission that the Rule 5(1)(c) shall be deemed to have been relaxed, while making recruitment of the Special batch, is not ignored, the fact remains that apart from the question as to whether in the facts and circumstances of the present case, the conditions of recruitment can be deemed to have been relaxed, the question which stares at us is as to whether Rule 23 empowered the Government to suspend Rule 5(1)(c) and the entire scheme of the APS Rules, 1966, for the purpose of making recruitment as has been done in the present case. The answer to this question has to be, in the light of what have been discussed above, an emphatic ‘no.

112. Relying upon the case of GS Lamba v. Union of India, , Mr. KN Choudhury has pointed out that in this case, it has been held, “once power to relax is given, mandatory Rule exists and if action is taken in derogation of the Rules, it would be presumable inference that the action was taken in relaxation of the Rules for which the power exists.” In the instant case, the said power is, according to Mr. Choudhury, traceable to Rule 23 of the Rules.

113. While considering the case of GS Lamba (supra), it is important to note that this was a case in which persons in service were promoted in excess of the quota fixed by the relevant recruitment Rules and such promotions were made year after year. There was no reason recorded for making such promotions. It is in this context that the Apex Court held, “It is well-settled that failure to record reasons will not invalidate the exercise of power. Once the power to relax is given, mandatory rule exists and an action in derogation of the rule has been repeatedly taken year after the year, it would be a permissible inference that the action was taken in relaxation of the rule for which the power exists and in this case is located in Rule 29(a). To hold otherwise would be to come to a rather disconcerting conclusion that a body like the Government of India acted deliberately in contravention of the mandatory rule from year to year. It would as far as possible be proper to avoid such an inference unless it is inescapable. In this case as pointed out earlier for years 1965 to 1972, there was no direct recruitment and even for the later years only an indent was placed and no recruitment done, and during all these years, a large number of persons from grade IV were promoted as departmental promotees to the integrated grades II and III. A body like the Government of India presumably knew that there is a statutory quota for recruitment but it also presumably acted in derogation of the quota rule, and therefore, it would be permissible to infer that the action was taken in relaxation of the mandatory quota rule. This view, which we are taking is in accordance with the decision of the Constitution Bench in Bachan Singh v. Union of India, (supra) wherein this Court held that though the direct recruitment was made in consultation with the Union Public Service Commission though not in accordance with the prescribed procedure namely on the result of a competitive examination, as the country was in a state of emergency, the appointment and selection was made by interview only and that such appointment by direct recruitment was made by relaxation of the relevant rules and the power was located in the Government of India to relax the rules. No specific order was shown in that case vouchsafing that the appointments were made in relaxation of the rule but the Court inferred from various relevant circumstances then prevailing that the appointments not in consonance with the prescribed procedure for direct recruitment must have been made in relaxation of the rules. When the question again came up in A. Janardhana case the Court held that if direct recruitment was made in relaxation of the relevant rules, the same reasons will mutatis mutandis apply to hold that promotions in excess of quota were given by relaxing the rules. It is therefore reasonable to believe in this case that though the quota was mandatory it was not adhered to by exercising the power of relaxation both qua persons and posts.”

114. A careful reading of what has been observed and laid down in GS Lamba (supra) clearly reveals that it was in the context of the continuous course of conduct, which the Government of India had followed, in derogation of the quota rules, that the Apex Court inferred that the action was taken by the Government in relaxation of the mandatory requirement of the quota Rules. In the case at hand, it is not a continuous course of action, but a one time violation of the Rules and that too, the Rules were flouted with impunity on the strength of a meeting, which took place between the then DPG, Assam, and the Chairman, APSC ; none of whom under the relevant Rules, as already indicated above, had the authority to take a decision to either make recruitment under Rule 5(1)(c) and/or relax the provisions of the Rules, governing the conditions of recruitment, by resorting to Rule 23, particularly, when the Cabinet Memorandum had, as indicated hereinabove, failed to receive the approval of the Cabinet.

115. Coupled with the above, in the case at hand, it is not any particular rule relating to recruitment to be made under Rule 5(1)(c), which was violated. Had there been mere relaxation in the prescribed limit of the age or had there been relaxation, direct or indirect, of any such specific requirement of the recruitment rules, one could have, perhaps, ignored and treated the same, in the light of the law laid down in GS Lamba (supra), a case of “deemed relaxation”, but in the case at hand, the rules of recruitment, as a whole, were, as already mentioned hereinabove, flouted in every conceivable manner setting the whole scheme of the Rules of recruitment at naught. The law laid down in GS Lamba (supra) cannot be stretched to mean that the Government can proceed with the recruitment assuming as if the recruitment Rules do not exist at all [see Sukanti Mahapatra (supra)]. In the case of GS Lamba (supra), the relaxation was deemed only in respect of the quota for promotees fixed under the relevant recruitment Rules and the process of consultation with the Public Service Commission. There was no other condition of recruitment, which was alleged to have been violated ; whereas in the case at hand, the relevant Rules, as a whole, were not adhered to and that too, at the instance of the persons, who were not competent to do so.

116. It is, of course, true as contended by Mr. KN Choudhury, that the Apex Court in GS Lamba (supra) relied on the decision of Bachan Singh v. Union of India, ; but this reliance was placed only to the extent that in Bachan Singh (supra); the Court had ruled, relying upon State of U.P. v. Manbodhan Lal Srivastava , that for making promotions, though the Rules provided for consultation with the Public Service Commission, no relaxation could have been granted as per the Rules in respect of the posts, which fell within the purview of the Commission, and yet the Public Service Commission was not consulted by the Government, the consultation with the Public Service Commission was not mandatory.

117. Thus, it was a specific finding in Bachan Singh (supra) that consultation with the Public Service Commission was not mandatory and by not consulting the Public Service Commission, when the recruitment had been made, the same cannot be said to be a recruitment in violation of the Rules. In effect thus, the violations in GS Lamba (supra) were in respect of the quota Rules and in respect of consultation with the Public Service Commission. The consultation with the Public Service Commission had already been held to be, in the light of Bachan Singh (supra), not mandatory and it was merely the quota fixed under the Rules, which was, thus, violated in GS Lamba (supra), but the same, in the peculiarity of the facts of the case of GS Lamba (supra), was also deemed to have been relaxed. In the case at hand, no authority has been cited before this Court to show that the entire scheme of the APS Rules, 1966, governing the field of recruitment to be made under Rule 5(1)(c) are not mandatory and could not have been regarded as mandatory and that is why, the recruitments can be safely deemed to have been made by throwing away the Rules.

118. It is also extremely important to note that in Bachan Singh (supra), the facts, as observed by the Apex Court, at para 11, were, in brief, thus : The appointments to Class-I service by interview were made by the Government in consultation with the Union Public Service Commission. The selection was made by the Union Public Service Commission. The appointments by competitive examination proved fruitless. The country was in a state of emergency. Appointment and selection by interview was the only course possible. It could not be said that all appointments should have been made by promotion. That would be not in the interest of the service. The service Rules were administrative in character. The Government relaxed the rules. The amendments of the rules in 1967 recognised the reality of the situation of appointment by interview. That is why, the 1967 amendment recognised that 50 per cent of “the direct recruits by competitive ad hoc appointment were to be reserved for graduate engineers who were Commissioned Armed Forces on a temporary basis”. Ultimately, when the rules were amended in 1969 and the rules became statutory in character not only the recruitment by interview but also the relaxation of rules was regularised. The result is that the respondents who were appointed by interview fell within the class of direct recruits.”

119. In the above fact situation, the Apex Court held as follows : –

“The appellants can have no grievance with regard to confirmation. The departmental promotees have been confirmed against permanent posts within their quota in order of seniority. Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class-I service before the appellants. On the other hand, direct recruits consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota. As a matter of fact, between 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to 50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.

The direct recruits, who were appointed by interview fell within the class of direct recruits. The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota. The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed, by reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by Union Public Service Commission.”

120. A careful reading of the decision in Bachan Singh (supra) shows that the appointments were made in the said case, when the country was, in the year 1962, passing through a state of emergency, engineers were immediately required to fill up the temporary posts and it was in these circumstances that the Government, in consultation with the UPSC, consciously decided to recruit candidates by advertisement and selection by the UPSC and instead of resorting to the written test and interview, the process of interview alone was resorted to for making the selection. In the circumstances in which the selection was made, the Apex Court found that the selection could not be interfered with on account of omission to follow the relevant rules, for, the Rules must be deemed to have been relaxed in the fact situation of the said case. This apart, though at the time, when these appointments were made, the appointments were in excess of the quota fixed for the direct recruits, yet amendments were subsequently made in the Rules increasing the quota for the direct recruits, which, according to the Court, shall be deemed to have approved the Governmental planning of increase in the quota of the direct recruits and, further-more, what appealed to the Court was that by the time the challenge to the appointment of the direct recruits was posed, the number of appointees, as direct recruits, fell within the quota, which had come to be fixed for the direct recruits. The Court, therefore, did not deem it fit to interfere with the matter.

121. In Bachan Singh (supra), thus, there were altogether 5 considerations for upholding the appointments made contrary to the Rules, namely, (a) that the circumstances prevailing in the country justified making of the recruitment; (b) the selection was made by the competent authority, i.e. Union Public Service Commission ; (c) the relaxation was only to the extent that instead of written test and interview, the process of interview was resorted to and this decision was taken by the competent authorities, namely, Union of India and Union Public Service Commission ; (d) though the appointments were made in excess of the quota fixed by the Rules, subsequent amendment of the Rules justified the appointments inasmuch as the quota for direct recruitment had been increased ; and (e) the appointments were, eventually, found to have fallen within the quota, which was fixed, under the Rules, for the direct recruits. Above all, there was no finding of mala fide and/or colourable exercise of powers and/or complete shelving of the relevant recruitment Rules.

122. In the case at hand, the Special batch was recruited, ostensibly, on the ground that the Department was in need of young officers in the grade of Deputy Superintendent of Police, for, if the posts of Deputy Superintendent of Police were to be filled up by promotion, it was not possible to have young officers. Interestingly enough, however, as already indicated hereinabove, contrary to the provisions of Rule 5(1)(c), which prescribes upper age limit for selection to be 35 years, the age was relaxed to 45 years and persons, who were born in 1942, came to be selected, in the year 1992, exhibiting that at the time of appointment, the officers recruited were as old as 50 years, whereas the proposal for special drive was made for recruitment of young officers. Thus, in making the recruitment, the very purpose for which the proposal was mooted stood defeated.

123. Hence, unlike what had happened in Bachan Singh (supra), the actual state of affairs smacks of mala fide and arbitrariness in the present case inasmuch as the selection was not made for the reasons for which it was claimed to have been made. This apart, the appointment under the Rules could not have been of more than one post in one year by way of special drive. As against this, the special drive recruited as many as 21 officers, which was again in violation of the relevant Rules and there is no case set up by the Government that the appointment of 21 officers falls within the quota fixed for appointment under Rule 5(1)(c) of the APS Rules, 1966. In fact, though the recruitment took place as far back as in 1992, no amendment in the relevant Rules, unlike the case of Bachan Singh (supra), has been made increasing the number of posts, which can be filled up by resorting to Rule 5(1)(c). Furthermore, the appointment has not been made, as mentioned hereinabove, by taking into account “outstanding merit and ability” of the departmental candidates and, above all, the Rules, as a whole, governing recruitment under Rule 5(1)(c) was shelved as if the same did not exist. The case of Bachan Singh (supra), therefore, does not fit into the facts of the present case and the law laid down therein cannot be applied to the facts of the present case.

124. There is yet another case, which none of the parties has referred to, and relied upon, namely, Narender Chadha v. Union of India, reported in (1986) SCC 157. In this case, in deliberate derogation of quota rule, ad hoc or ex gratia promotions were made in large numbers from feeder posts continuously to fill up several vacancies allocated for direct recruits, while only few direct recruitments were made. The promotees continued in ad hoc position for 15-20 years without being reverted to their original posts and without their right to hold the promotional posts being questioned. The Departmental Promotion Committee, instead of meeting annually in accordance with rules and instructions, met only thrice in 19 years and, after several years, selected for regular promotion only those promotees, who had 4 years of regular service in their feeder post as on a specified date. In this background, it was held that since the ad hoc promotees or appointees had been allowed to continue, as such, for long years without being reverted or challenged, they would be deemed to have been regularised and when there was deliberate massive departure from quota rule and the rules conferred relaxation powers on the Government, it could be assumed that quota rule had been relaxed. It has also been held in Narender Chadha (supra) that when persons has been allowed to function in higher posts for 15 to 20 years with due deliberation, it would be unjust to hold that they had no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all, particularly, when the Government was endowed with the power to relax the rules to avoid unjust results.

125. The extent of prejudice, which was likely to be caused to be ad hoc promotees, in the case of Narender Chadha (supra), if the quota rule was insisted upon, can be gauged from the following observations made therein : –

“20. The enormity of the prejudice that is likely to be caused to the petitioners and others who are similarly situated can be demonstrated by setting out the effect of sticking to the quota rule as found in Rule (1)(a) even though there has been a deliberate deviation from it. The result of applying the quota rule would be as follows : Petitioner 1 who was promoted to Grade IV on November 6, 1965 would be junior to a direct recruits of 1974 batch. Petitioner 3 who was promoted to Grade IV on March 22, 1966 would become junior to a direct recruits of 1979 batch. Petitioner 6 who was promoted to Grade IV post in July 1, 1966 would become junior to direct recruits of 1982 batch. Petitioner 10 who was promoted to Grade IV on May 18, 1968 would become junior to direct recruits of 1982 batch. Petitioners 16 to 18 and 21 to 25 would continue to be treated as ad hoc appointees and will be junior to everybody appointed till now into the service as they cannot be fitted anywhere even though they have put in 9 to 15 years of service in Grade IV. These startling results ought to shock anybody’s conscience. The only just solution to this problem is to treat the petitioners as persons duly appointed to the Service with effect from the day on which they were promoted to the Grade IV posts.”

126. From what was observed in Narender Chadha (supra), it is abundantly clear that it was enormity of prejudice, which was likely to be caused by sticking to the quota rule that the Apex Court had come to conclude that the only just solution to the problem was to treat the petitioners as persons duly appointed to the service with effect from the day on which they were promoted, for, it was, as the Apex Court indicated, not the fault of the petitioners and the officers, similarly situated, that their cases for promotion were not considered by DPC every year and even those, who had been found fit by the DPC for promotion, had to wait for nearly 15 years to get into the ‘regular’ service through a select list prepared by the DPC. It was in these circumstances that the Court held that the omission to take into account the service put in by the temporary departmental candidates till the date on which the DPC took up their cases for consideration for promotion on the ground that they had not completed four years of regular service in the feeder posts as on the specified date, the DPC had violated Articles 14 and 16. Compelled by the circumstances, as delineated hereinbefore, the Court held, “For the purposes of seniority, the dates of their selection shall be ignored”.

127. That the case of Narender Chadha (supra) must be treated as an exceptional case and not a general case is evident from the fact that while sustaining the ad hoc promotion of the promotees granted without following the rules, the Apex Court made it clear that “it is not our view that whenever a person is appointed in a post without following the rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all, particularly where the Government is endowed with the power to relax the rules to avoid unjust results.”

128. Reliance has also been placed, on behalf of the Special batch, on the case of J.C. Yadav v. State of Haryana, , in justification of their plea that the Rules of recruitment be taken to have been relaxed, while recruiting the Special batch. While dealing with the case of JC Yadav (supra), it is important to bear in mind that it was not a case of deemed relaxation; it was a case relating to promotion made contrary to the Rules, which prescribed both academic qualification as well as qualifying period of service for the purpose of promotion. The person, who had challenged the promotion, was himself found to be unsuitable by the Screening Committee. It is with this limitation that we have to, now, consider the case of JC Yadav (supra). In this case, the State was in the need of officers in the grade of Executive Engineer and it was in this context that since the Rules provided for relaxation of the Rules of recruitment, the State Government relaxed the period of qualifying service for the purpose of making promotion. It is in the face of these facts, in JC Yadav (supra), that the order of relaxation was upheld. Hence, the only relaxation was in respect of the period of qualifying service required for the purpose of promotion and no more.

129. Contrary to the facts of the case of JC Yadav (supra), wherein the relaxation of the Rules could be justified by the Government, the State-respondents have, in the case at hand, miserably failed to show that there was any hardship caused to the Government if the Rules were not relaxed. When the Cabinet Memorandum aforementioned had failed to receive approval of the Cabinet, the then DGP, Assam, in consultation with the Chairman, APSC, could not have, through the back-door and with the help of an authority like APSC, flouted the relevant Rules and made the appointments, when the appointments, as already indicated hereinabove, belied the ostensible reasons, which were assigned for making such appointments. Though the law laid down in JC Yadav (supra) is binding on this Court, the same does not apply to the facts of the present case.

130. Moreover, in the case of JC Yadav (supra) too, as discussion, at para-10 of the decision, clearly shows, the Apex Court found in the given facts and circumstances of the said case, justification for relaxation of the requisite qualification for promotion. In the case at hand, no attempt has, in fact, been made by the Government to justify the present recruitments.

131. It is also of immense importance to note that the Cabinet Memorandum, in question, did not give any indication that under Rule 5(1)(c) of the APS Rules, 1966, not more than one appointment can be made in a given year. This apart, the State Cabinet having not approved the said Memorandum, the inescapable conclusion is that the State Cabinet did not agree with the proposal at all. Hence, the question of the Government having granted relaxation or the Government can be inferred to have relaxed the relevant Rules does not arise at all. In short, thus, the recruitment of the Special batch was completely de hors the Rules as if the Rules stood suspended or did not exist at all.

132. In Direct Recruit Class II Engineering Officers Association v. State of Maharashtra and Ors., , when the conflict of interest between the direct recruits and the promotees raised, once again, the question of the validity of ad hoc/stopgap or fortuitous appointment by way of direct recruitment or promotion, the matter was brought before the Constitution Bench and after considering all the authorities on the point, the Constitution Bench of the Supreme Court summed up the position of law governing the field. While so summing up, the Apex Court also took into account “the concept of deemed or implied relaxation”.

133. The background, which led to the Direct Recruit’s case, as the case is popularly known, the purpose for which the Constitution Bench was constituted and the impact of the decision pronounced therein have been succinctly described in Keshav Chandra Joshi and Ors. v. Union of India and Ors., reported in (1992) Supp (1) SCC 772, thus, “We express our inability to travel beyond the ratio of Direct Recruits case. While reiterating insistence upon adherence to the rule that seniority between direct recruits 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 is sought to be fixed from the date of ad hoc appointment. In order to obviate 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. In the Direct Recruits case this Court laid down clear propositions of general application in Items A to K. Therefore, to keep the law clear and certain and to avoid any slant, we are of the considered view that it is not expedient to hark back into the past precedents and we prefer to adhere to the ratio laid down in the Direct Recruits case.”

134. In Keshav Ch. Joshi (supra), it has also been clarified that merely because the promotees were appointed to the same post as the direct recruits, they have been discharging the same duties as the direct recruits and drawing the same salary as direct recruits, they could not be deemed to have been given promotion from the date of their initial appointment, for, the promotion has to be made in accordance with the Rules and not in derogation thereof.

135. In the case at hand too, same as in Keshav Ch. Joshi (supra), it needs to be clarified that merely because the members of the Special batch have been appointed to the same post as the Direct Batch, they have been discharging the same duties as the Direct Batch and drawing the same salary as the Direct Batch, they cannot be deemed to have been selected and appointed regularly nor can their initial appointment be regarded as legal and valid unless their appointment is shown to have been made in accordance with the Rules and not in derogation thereof.

136. There is one prominent feature in all the three cases, Bachan Singh, GS Lamba and Narender Chadha (supra) in which the concept of “deemed relaxation” has been dealt with. In all the three cases, the conflict of interest was between the direct recruits and the promotees. A promotee may be a member of the service, but if his promotion is not legal, he may not become a member of the promotional cadre but a direct recruits stands on an entirely different footing inasmuch as his very entry into the service has to be legal, for, if his original entry into the service is illegal, he cannot be regarded as a members of the service at all and unless his original entry into the service is regularised, he cannot become a member of the cadre, junior or senior. It is for this reason that the Apex Court clarified in Suraj Prakash Gupta and Ors. v. State of J & K , that the principle that only service “according to rules” can be regularised applies to direct recruits and not to promotees. The Court in Suraj Prakash Gupta (supra) further clarified the said distinction between a promotee and a direct recruit thus, “These rulings cannot be applied to the case of the promotees. In fact the principle laid down in these cases is consistent with the principles in service jurisprudence so far as the ad hoc service rendered by direct recruits before the date of their regular selection is concerned. Their service counts only from the date of regular appointment according to rules and any ad hoc/stopgap service rendered before regular selection cannot count for seniority”.

137. In the case at hand too, while considering the above aspect of the matter, one needs to bear in mind that Rule 2(j) of the APS Rules, 1966, defines “members of the service” as follows :

(II) a person recruited to the service after commencement of these rules ;

(III) a person who was promoted to the Assam Police Service from the rank of Inspector of police and was confirmed in the Assam Police Service prior to the commencement of these rules; and

(IV) a person appointed on the Assam Police Service by direct recruitment on the recommendations of the Commission before the commencement of these rules.

138. Rule 4 of the APS Rules, 1966, deals with the ‘Cadre’ of the Assam Police Service. In the case at hand, since the recruitment of the Special batch was, admittedly, for Junior Grade, the provisions of Rule 4, which relate to the cadre of Junior Grade, are quoted hereinbelow :

“4. Cadre. – (1) The cadre of the service shall comprise of the following categories of posts –

(a) In the junior grade ;

(b) Deputy Superintendent of Police ;

(c) Assistant Commandant of Armed Police Battalions ;

(d) Such other posts which may be declared as equivalent to these posts by the Governor.

(e) …

(2) ”

139. From a combined reading of Rule 2(j) and Rule 4 of the APS Rules, 1966, it becomes clear that a person appointed as a Deputy Superintendent of Police will be treated as a member of the cadre of Deputy Superintendent of Police in the Assam Police Service, provided that he is a member of the Assam Police Service.

140. It logically follows from the above discussion that the members of the Special batch, having been recruited de hors the APS Rules, 1966, cannot be treated to have become members of the Assam Police Service and, hence, the question of their having become members of the cadre of the Deputy Superintendent of Police in the said service does not arise at all unless their recruitment is treated to have been made in relaxation of the Rules and/or in deemed relaxation thereof. In the face of what have been pointed hereinabove, it is crystal clear that the recruitment of the Special batch was neither in express relaxation of the recruitment Rules or implied relaxation thereof, for, relaxation of the Rules cannot be stretched to the extent of suspending the operation of the Rules as non est.

141. The case of GS Lamba (supra), which Mr. Choudhury relies upon, as well as the case of Narender Chadha (supra) were cases of promotees, whose original entry into the service was regular, but they were not regularly promoted. Their cases cannot be equated with the cases of direct recruits if the direct recruits’ very entry into the service is invalid. The distinctions, so indicated, are succinctly described in Suraj Prakash Gupta (supra) as follows : –

“27. The promotees relied upon the ruling in GS Lamba v. Union of India, but the said decision cannot, in our view, apply. There the promotees were appointed regularly, but were allowed to occupy the posts of direct recruits for long periods. It was held that it must be deemed that the relevant Recruitment Rules was relaxed in their favour and their service in such direct recruit posts could be counted. This case, in our view, is distinguishable, because there the promotees were regular promotees, though appointed outside the promotee quota. The position before us is different, because here the promotees are ad hoc promotees and further the issue relates to all posts, within and outside the promotion quota. Narender Chadha v. Union of India, no doubt, supports the case of the promotees. There the promotees occupied not only their own quota, but also the direct recruitment quota to some extent. After 15 to 20 years, the temporary service of those who had put in 4 years service in the feeder category, was regularised. It was held that all the promotees were entitled to regular promotion and the seniority of all promotees (including some of those selected by DPC) was to be reckoned from the date of continuous officiation. This was done on the theory of implied relaxation of recruitment rule to all posts within and outside the promotion quota. But this case, in our view, is to be treated as an exception because the promotees there were not regularised for 15 to 20 years (see p.171) and it was held that the non-regularisation over such a long period violated Articles 14 and 16 of the Constitution of India. It is, no doubt, true that the Constitution Bench in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra, referred to Narender Chadha case (see at p.726, para 13) and observed: “There is considerable force in this view also.” But as we shall presently show, the recent trend of cases in this Court is entirely different. Recent trend of cases -Recruitment Rules cannot be relaxed.

28. The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi v. Union of India, the Rule permitted relaxation of the conditions of service and it was held by the three-Judge Bench that the Rule did not permit relaxation of Recruitment Rules. The words “may consult PSC” were, it was observed, to be read as “shall consult PSC” and the Rule was treated as mandatory. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575 decided by three-Judge Bench, a similar strict principle was laid down. The relevant Rule – Rule 3 of the Residuary Rules (see p. 603, para 33) in that case did permit relaxation of the “Rules”. Even so, this Court refused to imply relaxation of Recruitment Rules and observed : SCC pp. 603-04, para 33)
“The condition precedent, therefore, is that there should be an appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused,…. It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment accordion to rules. The former cannot be relaxed.”

29. Similarly, in State of Orissa v. Sukanti Mahapatra it was held that though the power of relaxation stated in the rule was in regard to “any of the provisions of the rules”, this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc service of a direct recruit could not be treated as regular service. Similarly, in MA Haque (Direct recruits.) v. Union of India it was held that for direct recruitment, the rule relating to recruitment through the Public Service Commission could not be relaxed. In J&K Public Service Commission v. Dr. Narinder Mohan it was held that the provisions of the J&K Medical Recruitment Rules could not be relaxed for direct recruitment. The backdoor direct recruitments, could not be permitted. (See also Arundhati Ajit Pargaonkar (Dr.) v. State of Maharashtra). In Surinder Singh Jamwal (Dr.) v. State of J&K this Court directed the direct recruits to go before the Public Service Commission. Decisions cited for promotees distinguishable.

31. The result of the discussion, therefore, is that the wholesale regularisation by order dated 2-1-1998 (for the Electrical Wing), by way of implied relaxation of the Recruitment Rules to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under Rule 5 of the J&K (CCA) Rules, 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.”

142. Moreover, what is of utmost importance to note, if I may reiterate, is that none of the cases relied upon, on behalf of the Special batch, namely, GS Lamba (supra), JC Yadav (supra), Bachan Singh (supra), Ashok Kumar Sharma (supra) and Narendra Chadha (supra), there was any finding that the appointments in relaxation of the Rules were arbitrary and/or mala fide and in none of these cases, it was found that the entire recruitment Rules was thrown to the wind, while making the appointments and/or that the appointments were in colourable exercise of powers.

143. What crystallises from the above discussions is that unlike the case Bachan Singh (supra), GS Lamba (supra), Narender Chadha (supra) and JC Yadav (supra), wherein the bona fide of the Government was not in doubt nor was there any finding that the Government’s acts were in colourable exercise of powers, the present case is one, which demonstrates, as already held above, mala fide and colourable exercise of powers. One, who seeks equity, must come with clean hands; but the Special batch’s recruitment is not clean and above board.

144. While dealing with the Points Nos. (iii) (c), (a) and (f), it may also be mentioned, if I may borrow the language used in Dr. M Laiphlang and Ors. v. State of Mahaglaya and Ors., reported in (2004) 2 GLR 546, that the concept of apt, absorption and promotion in service, in relaxation of the recruitment Rules, has undergone a prominent development. The present view is that there can be no relaxation of the basic and fundamental rules of recruitment. Thus, the service jurisprudence, now, makes a distinction between conditions of recruitment and conditions of service. While condition of service may be relaxed, condition of recruitment cannot be relaxed. Subject, however, to the condition that if the recruitment rules, in themselves, provide for relaxation of the condition of recruitment, the condition of recruitment may be relaxed provided that such relaxation does not render the conditions of recruitment, as a whole, nugatory and/or non est in its entirety. Reference, in this regard, may be made to Dr. M Laiphlang (supra), wherein a Division Bench of this Court, relying upon a number of authorities, culled out the parameters of the law of relaxation in the following words : –

“25. While considering the above aspect of the matter, it needs to be pointed out, at the very outset, that the concept of appointment, absorption and/or promotion in service in relaxation of relevant recruitment rules has undergone a prominent development. The present view is that there can be no relaxation of the basic and fundamental rules of recruitment. Moreover, strict conformity with the recruitment rules is insisted both for direct recruits as well as promotees. (Ref. Suraj Prakash Gupta v. State of J&K . Thus, the service jurisprudence, now, clearly draws a distinction between the conditions of recruitment and conditions of service. In other words, in the realm of service jurisprudence, a distinction is, now, drawn between the conditions of recruitment and the conditions of service while the conditions of service may be relaxed, condition of recruitment cannot be relaxed. In other words, the provisions for relaxation in general contained in recruitment rules cannot be resorted to for relaxing the conditions of recruitment. The minimum period of qualifying service for promotion, which recruitment rules impose, is really a condition of recruitment and such a condition not being condition of service cannot generally be relaxed unless the Rules in themselves provided for otherwise (JC Yadav v. State of Haryana, ). A Division Bench of this Court have set the matter at rest in the case of Ananda Ram Baruah v. State of Assam, reported in (2003) 2 GLT 78, by observing and laying down as follows : –

“… The question, which call for determination by this Court is, whether the power to relax the Rule would go to the extent of relaxing conditions of recruitment also or it can be only t the extent of relaxing the conditions of service? Can a direct recruit for recruitment to the post of LDA avoid competitive examination ? Can the Government exercise power of relaxation of Rules of recruitment requiring a direct recruit to appear in the competitive examination and such relaxation of the recruitment Rules is permissible. In Keshab Chandra Joshi v. Union of India, reported in (1992) Suppl. SCC 272, the Apex Court has emphasised the need of strict compliance of the recruitment Rules for both direct recruits and promotees. It is held that there cannot be any relaxation of the basic or fundamental rules of recruitment. That was a case where the Rule permitting relaxation of conditions of service came for consideration and it was held by a three Judges Bench that the Rule did not permit relaxation of the recruitment Rules. In Syed Khalid Rizvi v. Union of India, (1993) Supl 3 SCC 575, the Apex Court observed. “The condition precedent, therefore, is that there should be an appointment to the service in accordance with Rules and by operation of the Rules, undue hardship has been caused …. It is already held that the condition of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed.” Thus, according to the Apex Court there is distinction between the conditions of recruitment and conditions of service. Appointment has to be made in accordance with the recruitment Rules and, thereafter, there may a relaxation in the service condition. Similarly, in State of Orissa v. Sukanti Mahapatra , it was held that though the power of relaxation stated in the Rule was in regard to “any of the provision of the Rules”, this did not permit relaxation of the Rule of direct recruitment without consulting the Commission and the entire ad-hoc service of a direct recruit could not be treated as regular service. In M.A. Haque (Dr.) v. Union of India and in Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan, , it has been emphatically laid down that the Rule relation g to recruitment could not be relaxed. The judgment in the matter of Suraj Prakash Gupta (supra) has also reiterated the principle laid down by the Apex Court that there cannot be any relaxation of the conditions of recruitment. The conditions of recruitment and conditions of service are distinct. The Government has the power to relax conditions of service, whereas the conditions of recruitment cannot be relaxed even though the Rules intends to do so. (Emphasis is supplied).

26. We express out complete agreement with the position of law laid down in Ananda Ram Baruah (supra) subject to only one clarification that if the recruitment rules, in themselves, provide for relaxation of conditions of recruitment, the conditions of recruitment may be relaxed, provided that such relaxation does not make the conditions of recruitment nugatory and that interpretation of such provisions of relaxation contained in the recruitment rules must not be liberal, but very strict.”

145. For reaching the above conclusions, the Division Bench of this Court has relied upon, amongst others, the decisions in J.C. Yadav v. State of Haryana, , Keshav Chandra Joshi v. Union of India reported in (1992) Supp SCC 772, Syed Khalid Rizvi v. Union of India, reported in (1993) Supp (3) SCC 575, State of Orissa v. Sukanti Mahapatra, , M.A. Haque (Dr.) v. Union of India , Jammu and Kashmir Public Service Commission v. Dr. Narinder Mohan, and Suraj Prakash Gupta v. State of J & K .

146. In the case at hand, it is Rule 23 of the APS Rules, 1966, which makes provisions for relaxation. This Rules states,

“Relaxation : Where the Governor is satisfied that the operation of any of these Rules may cause undue hardship in any particular case, he may order to dispense with or relax the requirements of that rule to such extent and subject to such conditions as he may considered necessary for dealing with the case in a just and equitable manner :

Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided by any of these rules.”

147. In the light of the law laid down in Dr. M Laiphlang (supra), one can safely hold that even if, in the light of the language used in Rule 23, the conditions of recruitment contained in the APS Rules, 1966, may be relaxed, such relaxation cannot be to such an extent that it makes the whole provisions for recruitment imbecile, purposeless and nugatory. In short, Rule 23 does not conceive of recruitment de hors the Rules.

148. The decisions referred to by the Division Bench in Dr. M Laiphlang (supra) make it clear that even if the Rules contain the provisions for relaxation of the Rules of recruitment, such relaxation cannot be to such an extent that it makes the whole scheme of recruitment meaningless nor can the provisions of relaxation be interpreted in such a manner that it enables the Government to throw away the Rules of recruitment lock, stock and barrel, make the same non-existent as if the Rules, as a whole, do not exist or as if the Rules, in their entirety, stand suspended.

149. From what has been discussed above, it is abundantly clear that though Rule 23 provides for relaxation of any Rule and even if “any” Rule is interpreted to include the Rules of recruitment, relaxation cannot be to such an extent that the Rules of recruitment are rendered facile. On this aspect of law, I may refer to State of Orissa v. Sukanti Mahapatra, , wherein the Apex Court has, taking note of its earlier decision in R.N. Nanjundappa v. T. Thimmaiah, reported in (1992) SCC 409, clarified the law, on the subject, as follows : –

“8. The Rules were made under the proviso to Article 309 for regulating the method of recruitment to the post of Lower Division Assistants in the offices of the Heads of Departments. **** Counsel for the regular recruits contend that what the Government has done in exercise of power under Rule 14 is to set at naught the entire body of the Rules as if they never existed. The power of relaxation, contend counsel, cannot be so used as to render the Rules non est. In support of this contention strong reliance was placed on the following observations in the R.N Nanjundappa v. T. Thimmaiah : (SCC pp. 416-17, para 26).

“… If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.”

In the present case also the appointments of the employees whose services are sought to be regularised were de hors the Rules. Rule 14 merely permits relaxation of any of the provisions of the Rules in public interest but not the total shelving of the rules. The orders do not say which rule or rules the Government considered necessary and expedient in public interest to relax. What has been done under the impugned orders is to regularise the illegal entry into service as if the Rules were not in existence. Besides the reason for so doing are not set out nor it is clear how such regularisation can sub-serve public interest. Rule 14 has to be strictly construed and proper foundation must be laid for the exercise of power under that rule. The Rules have a limited role to play, namely, to regulate the method of recruitment, and Rule 14 enables the Government to relax any of the recruitments of the Rules pertaining to recruitment. The language of Rule 14 in the context of the objective of the Rules does not permit total suspension of the Rules and recruitment de hors the Rules. In the present case the recruitments had taken place years back in total disregard of the Rules and now what is sought to be done is to regularise the illegal entry in exercise of power under Rule 14. Rule 14, we are afraid, does not confer such a blanket power; its scope is limited to relaxing any rule, e.g. eligibility criteria, or the like, but it cannot be understood to empower Government to throw the Rules overboard. If the rule is so construed it may not stand the rest of Article 14 of the Constitution. The proviso to Rule 13 can come into play in the matter of fixation of seniority between candidates who have successfully cleared the examination and a candidate who cleared the examination after availing of the benefit of relaxation. We are, therefore, of the opinion that the Tribunal committed no error in understanding the purport of Rule 14.

**** **** ***** *** **** *****

10. Now even though the Tribunal came to the conclusion that Rule 14 did not permit regularisation made under the impugned orders of January 3, 1985 and February 14, 1985, it, having regard to the long service put in by the employees named in the same two orders and on compassionate considerations, has supported the regularisation under Article 162 of the Constitution. It has moulded the relief of such considerations. Since that part of the order has not been assailed and since the appellants cannot be worse off by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees under any interim orders contrary to the relief moulded by the Tribunal shall be adjusted and brought in tune with the said relief. The benefit of this relief, to the extent relevant, will be given to irregular appointees covered under both the impugned orders of January 3, 1985 and February 14, 1985.”

150. Applying the law laid down in Sukanti Mahapatra (supra) to the factual matrix of the present case, one can unhesitatingly hold that the APS Rules, 1966, have been made under the provision to Article 309 for regulating the method of recruitment to, amongst others, the post of Deputy Superintendent of Police and Rule 23 of these Rules provide for relaxation. Even if the power given, under Rule 23, to the Government can be interpreted to empower the Government to relax not only the conditions of service but also the conditions of recruitment, the fact remains that what the Government has done, in the present case, in exercise of powers under Rule 23, is to virtually set at naught the entire body of the Rules as if the Rules never existed. The power of relaxation, as the decision in R.N. Nanjundappa (supra) reflects, does not empower appointments in defiance of the Rules. As held in R.N. Nanjundappa (supra), if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised; ratification or regularisation is possible of an act, which is within the power and province of the authority or where there has been some non-compliance with the procedure or the manner, which does not go to the root of the appointment; regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules, for, it may have the effect of setting at naught the rules.

151. In the present case too, if the appointments of the Special batch is upheld, it will be tantamount to regularising their services, though their appointments were de hors the Rules. Rule 23 merely permits relaxation of any of the provisions of the Rules but not the total shelving of the rules. Even if, for a moment, one were to hold that the recruitment of the Special batch was in deemed relaxation of the conditions of recruitment, one has to ascertain and be satisfied as to which rule, in this regard, was relaxed. Since the recruitment of the Special batch shows that the recruitment was by entirely shelving the Rules, the question of resorting to the doctrine of “deemed relaxation” does not arise at all, for, if it is permitted, it would amount to regularising the illegal entry into service as if the APS Rules, 1966, did not exist for recruiting the members of the Special batch, though the recruitment of the Special batch was projected to have been made under Rule 5(1)(c) thereof. The APS Rules, 1966, have a limited role to play, namely, to regulate the method of recruitment and Rule 23, at best, enables the Government to relax any of the requirements of the Rules pertaining to recruitment. The language of Rule 23, in the context of the objective of the Rules, does not permit total suspension of the Rules and recruitment de hors the rules. Rule 23, I am afraid and if I may borrow the language used in Sukanti Mahapartra (supra), “does not confer such a blanket power; its scope is limited to relaxing any rule, e.g. eligibility criteria, or the like, but it cannot be understood to empower Government to throw the Rules overboard. If the rule is so construed, it may not stand the test of Article 14 of the Constitution.

152. In the case at hand, it is not any particular Rule, which is claimed to have been relaxed. The Rules were, as a whole, shelved, while recruiting the Special batch as if the Rules did not exist.

153. What emerges from the above discussion is that the recruitment of the Special batch was made by throwing into the wind the entire scheme of recruitment envisaged under the APS Rules. In a situation, as the present one, there can be no escape from the conclusion that the appointment of the members of the Special batch was de hors the Rules and if the same is not to be interfered with by this Court, such noninterference will not be and cannot be on account of the fact that the relevant Rules of recruitment were relaxed or deemed to have relaxed, while recruiting them; rather, such non-interference would be and can be on sheer sympathetic consideration that the members of the Special batch have put in service for a long period, though the period is not as long as the service, which the promotees in Narender Chadha (supra) had put in.

154. However, while considering the length of service, which the Special batch has put in, one has to bear in mind that even when the appointment to the promotional post is in violation of the relevant recruitment Rules, the Court should refuse to give benefit of the period during which the promotee has rendered service on the promotional post, [see MK Shanmugam and Anr. v. Union of India and Ors., ]. In fact, in MK Shanmugam (supra), the Court observed, “There is difficulty in the way of the appellants to fight out their case, for, seniority should be reckoned by reasons of the length of the service whether ad hoc or otherwise inasmuch as they had not been recruited regularly.”

155. The law laid down in MK Shammugam has been followed in Md. Israils and Ors. v. State of West Bengal and Ors., reported in (2003) 2 SCC 306, wherein the Court observed,
“9. In the case of M.K. Shanmugam v. Union of India this Court came to hold that any ad hoc service does not count for seniority in the cadre and it can only count in those cases where the initial appointment, though ad hoc is made by the same process, as is applicable to the regular appointment and is not a stopgap appointment. In this case also the promotions had been made purely temporary and on ad hoc basis and for a limited period and it had been made clear in promotion order that the promotion is subject to the approval of the Public Service Commission and would not confer any seniority. In the case in hand also the order of promotion in favour of Respondents 6 to 30 categorically indicated that the promotion is purely on ad hoc basis and subject to the approval of the Public Service Commission. Consequently the services rendered on such ad hoc basis till the approval of the Public Service Commission is obtained, will not count for reckoning the seniority in the cadre. The only other decision which requires consideration is the judgment of this Court in Suraj Prakash Gupta v. State of J&K on which Mr. Venkataramani, learned senior counsel appearing for the private respondents strongly relied upon. Question 3 in this case was, whether ad hoc, stopgap promotion of Assistant Engineers could be made beyond 6 months and till regularisation, by the Government without consulting the Public Service Commission can be counted for the purpose of seniority. So far as Question 3 is concerned, the Court answered by referring to Regulation 4(d)(iii) of J&K Public Service Commission (Limitation of Functions) Regulations, 1957 and Rule 23 of the J&K Civil Services (CCS) Rules, 1956, that the State Government has the power to regularise the services for an anterior date, as provided under Rule 23, and therefore, when appointment is made without consultation with the Public Service Commission, entire service will not be wiped off. This conclusion was possible because of the existence of Rule 23. In the case in hand we do not have any rule corresponding to Rule 23, and therefore the ratio of the aforesaid case will have no application. Mr. Venkatarmani, however, vehemently urged that the observations made in the aforesaid case are of general nature and should apply to every case irrespective of existence, of any rule corresponding to Rule 23 of the J&K Civil Services (CCA) Rules. We are, however, not persuaded to accept this submission of learned counsel for the respondents. In view of the analysis of different provisions of the Recruitment Rules, the West Bengal Public Service Commission (Consultation by Governor) Regulations, West Bengal Public Service Commission (Exemption from Consultation) Regulations, we have no doubt that the initial appointment of Respondents 6 to 30, purely on ad hoc basis without consultation with the Public Service Commission cannot beheld to be a regular service in the cadre of Employment Officer, and as such the same cannot be counted for the purposes of reckoning their seniority in the cadre.”

156. The above observations made in Md. Israil convey that if the initial appointment itself is not regular, question of reckoning the period of service rendered as irregular appointee, for the purpose of seniority, does not arise at all.

157. When the appointment to the promotional cadre is de hors the recruitment Rules, the Court cannot direct that the period of service rendered on the promotional post, by virtue of the illegal promotional appointment, should be counted for the purpose of seniority in the cadre even if the promotee possesses the requisite qualification for such promotional appointment (see Union of India and Ors. v. Satish Chandra Mathur, ).

Point Nos. (ii) and (iii)

158. Let me, now, come to, and deal with, point Nos. (ii) and (iii), for, both these points are closely associated with each other and are required to be discussed together;

159. Coming to Point Nos. (ii) and (iii), namely, as to (ii) whether the seniority of an appointee can be challenged on the ground that the appointment of the person, who is treated as senior, is in violation of the relevant Recruitment Rules, whereas the appointment of the one, who seeks seniority, is in accordance with the relevant Recruitment Rules and (iii) could the learned Tribunal have directed correction in the gradation list in the present case, when the Direct Batch did not seek removal of the Special batch and only sought for direction to the Government to treat the Direct Batch as senior to the Special batch ?

160. Answer to the above question is fully covered by the Apex Court’s decision in State of UP v. Raffiquddin . In this case, the Apex Court was confronted with a situation in which while, on the one hand, a Batch of persons was appointed in the judicial service of the State in violation of the relevant Rules of recruitment, another batch of persons was, on the other hand, appointed in the same service in accordance with the Rules, the irregular appointees having, however, been accorded seniority over the regular appointees on the ground that the irregular appointees were selected from the selection test held in the year 1970, whereas the regular appointees were selected from the selection test held in the year 1972. Dealing with such a situation, the Apex Court observed and held as follows :

“13. … The appointment of unplaced candidates made in pursuance of the decision taken by the high level committee is not countenanced by the Rules. There is no escape from the conclusion that the unplaced candidates were not appointed to the service on the basis of the result of the competitive examination of 1970. Their appointment was made in breach of the Rules, in pursuance to the decision of the high level committee. It is well settled that where recruitment to service is regulated by the statutory rules, recruitment must be made in accordance with those Rules, any appointment made in breach of rules would be illegal. The appointment of 21 “unplaced candidates” made out of the third list was illegal as it was made in violation of the provisions of the Rules. The high level committee which took decision for recruitment of candidates to the service on the basis of the 40 per cent aggregate marks disregarding the minimum marks fixed by the Commission for viva voce test had no authority in law, as the Rules do not contemplate any such committee and any decision taken by it could not be implemented.

14. We are surprised that the Chief Justice, Chief Minister or as well as the Chairman of the Commission agreed to adopt this procedure which was contrary to the Rules. The high level committee even though constituted by highly placed persons had no authority in law to disregard the Rules and to direct the Commission to make recommendation in favour of unsuccessful candidates disregarding the minimum marks prescribed for the viva voce test. The high level committee’s views that after the amendment of Rule 19, the minimum qualifying marks fixed for viva voce could be ignored was wholly wrong. Rule 19 was amended in January 1972, but before that 1970 examination had already been held. Since the amendment was not retrospective the result of any examination held before January 1972 could not be determined on the basis of amended Rules. The Public Service Commission is a constitutional and independent authority. It plays a pivotal role in the selection and appointment of persons to public services. It secures efficiency in the public administration by selecting suitable and efficient persons for appointment to the services. The Commission has to perform its functions and duties in an independent and objective manner uninfluenced by the dictates of any other authority. It is not subservient to the directions of the Government unless such directions are permissible by law. Rules vest power in the Commission to hold the competitive examination and to select suitable candidates on the criteria fixed by it. The State Government or the high level committee could not issue any directions to the Commission for making recommendation in favour of those candidates who failed to achieve the minimum prescribed standards as the Rules did not confer any such power on the State Government. In this view even if the Commission had made recommendation in favour of the unplaced candidates under the directions of the Government the appointment of the unplaced candidates was illegal as the same was made in violation of the Rules.

15. …But even if the Commission had agreed to the Government’s suggestion, their appointments continued to be illegal, as the same were made in breach of Rules. There was no justification for the appointment of the unsuccessful candidates in 1975, because by that time result of 1972 examination had been announced and duly selected candidates were available for appointment.”

16. … If selected candidates are available for appointment on the basis of the competitive examination of subsequent years, it would be unreasonable and unjust to revive the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22. The 1970 examination could not be utilised as a perennial source or inexhaustible reservoir for making appointments indefinitely.

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19. The unplaced candidates were appointed to the service in breach of the Rules and they form a separate class. They cannot be equated with those who were appointed to the service from the first and second list of 1970 examination as their appointment was made on the recommendation of the Public Service Commission. They remain unchallenged. Similarly, candidates appointed to the service on the basis of the result of the competitive examination of 1972 before the unplaced candidates were appointed, formed separate class as they were also appointed in accordance with the Rules. The “unplaced candidates” of 1970 examination cannot claim seniority over them on the basis of Rule 22 as their appointment was not made on the basis of the list approved by the Commission under Rule 19. In Shitala Prasad Shukla v. State of U.P., this Court held that an employee must belong to the same stream before he can claim seniority vis-a-vis others. Those appointed irregularly belong to a different stream and they cannot claim seniority vis-a-vis those who may have been regularly and properly appointed.

20. …But we are also of the view that having regard to the period of 12 years that have elapsed, we do not propose to strike down their appointments.

21. Now the question arises as to when seniority should be assigned to the unplaced candidates. Their claim for assigning them seniority on the basis of the competitive examination of 1970 is not sustainable in law as discussed above. They were appointed to service after five years of the examination and before their appointment, competitive examination of 1972 had taken place and candidates selected under that examination had been appointed to service prior to their appointment. The directions issued by the High Court for rearranging the merit list of 1970 examination seriously affect the seniority of those who were regularly selected in accordance with the norms prescribed by the Commission. Having regard to these facts and circumstances of the case we are of the opinion that the view taken on by the High Court on its administrative side and the State Government that the unplaced candidates of 1970 examination should be assigned seniority below the last candidate of 1972 examination appointed to the service is just and reasonable. In our opinion it would be just and proper to assign seniority to the unplaced candidates of 1970 examination at the bottom of the line of 1972 candidates. There were 37 unplaced candidates of 1970 examination who were included in the third list, of them 16 candidates appeared in the 1972 examination and they were successful and their names were approved by the Commission in the list prepared under Rule 19. The State Government appointed them in service. Under Rule 22 they are entitled to seniority of 1972 examination but in view of the judgment of the High Court in Rafiquddin’s case their seniority has been determined on the basis of their recruitment to service under the 1970 examination. We have already recorded findings that unplaced candidates of 1970 examination (as included in the third list) have not been recruited in service according to the Rules and their recruitment to service cannot be treated under 1970 examination for purposes of determining their seniority under Rule 22. We have further directed that 21 unplaced candidates of 1970 examination should be placed below the candidates of 1972 examination. But so far as 16 remaining candidates are concerned, they were appointed to the service on the result of 1972 examination and their appointment does not suffer from any legal infirmity. They are therefore entitled to seniority of 1972 examination on the basis of their position in the merit list of that examination. They are however not entitled to the seniority of 1970 on the basis of the examination of that year as held by the High Court.”

161. In the case at hand also, the Government had not agreed to the proposal put forwarded by the Home Department, yet the Home Department, with the help of the authority like APSC, went ahead with its proposal for making selection. Thus, in essence, the facts of the present case are akin to the case of Rafiquddin (supra), wherein the unplaced candidates were also selected by a consultative process in the meeting of the Chief Minister, Chief Justice and the Chairman of the Public Service Commission of the State concerned. Though all the three organs, which were required for the purpose of selection, were involved in the process of selection, the Apex Court still did not consider it fit to put its seal of approval to the selection made following a procedure, which was contrary to the relevant Rules.

162. From the case of Rafiquddin (supra), it is clear that even when the High Level Committee consisted of persons, who had occupied highest of offices in the State, the action taken by such a High Level Committee was, being in breach of the rules, not upheld by the Apex Court reminding all of us of the principle, “however high you may be, the law is above you”.

163. In short, in the present case, the body, which decided the entire process of recruitment in breach of the rules, consisted of the then Chairman, APSC, and the DGP, Assam. Merely because the APSC was involved in the selection process, it can be no reason for giving a clean chit to a process of selection, particularly, if the same is found to suffer from illegality, arbitrariness, mala fide and colourable exercise of powers.

164. The second underlying principle of the decision in Rafiquddin (supra) is that even when, on account of lapse of a long period, appointment made to a service in breach of the relevant recruitment rules is not set aside and quashed, such irregular appointee shall not be allowed to steal a march over the regular appointees, for, as reiterated in Rafiquddin (supra), “an employee must belong to the same stream before he can claim seniority vis-a-vis others. Those appointed irregularly belong to a different stream and they cannot claim seniority vis-a-vis those, who may have been regularly and properly appointed”.

165. Following the principle of law as indicated hereinabove, it is possible that without setting aside and quashing the appointment of an irregular appointee, the Court or Tribunal may direct the appointing authority to treat a regular appointee in service, though appointed later in point of time than the irregular appointee, as senior to the irregular appointee. In other words, an irregular appointee, particularly, if his appointment suffers from arbitrariness, mala fide and colourable exercise of powers, cannot be allowed to gain seniority over the regular appointee, for, they cannot be said to belong to the same stream even if the appointment of the irregular appointee is prior in point of time and is not disturbed on account of long period of service, which the irregular appointee might have put in.

166. It further logically follows from the above discussion that the members of the Special batch, having been recruited de hors the APS Rules, 1966, cannot be treated to have become members of the Assam Police Service and, hence, the question of their having become members of the cadre of the Deputy Superintendent of Police in the said service does not arise at all unless their recruitment is treated to have been made in relaxation of the Rules and/or in deemed relaxation of the service. In the face of what have been pointed hereinabove, it is crystal clear that their recruitment was neither in express relaxation of the recruitment Rules or implied relaxation thereof, for, relaxation of the Rules cannot be stretched to the extent of suspending the operation of the Rules or treating the Rules as non est.

167. What clearly follows from the above discussion is that even if the very appointment of the members of the Special batch were not interfered with and set aside by the learned Tribunal, it was still within the power of the learned Tribunal to direct that the members of the Direct Batch be treated as senior to the members of the Special batch.

168. The case of Ashok Kumar Sharma v. Chander Shekher, reported in (1993) Supp. (2) SCC 611, has also been relied upon by Mr. KN Choudhury to show that since the appointment of the Special batch were not interfered with by the learned Tribunal, the Tribunal ought to have allowed the members of the Special batch to enjoy seniority with effect from the date of their appointment instead of directing them to be treated as junior to the members of the Direct Batch, for, as quotes Mr. Choudhury, “equity does not know the half way”.

169. While considering the case of Ashok Kumar Sharma (supra), it is pertinent to note that in the said case, the candidates, whose appointments came to be challenged, were not eligible at the time, when they had applied for selection and appointment pursuant to the advertisement, in question. However, before the date of selection, they became eligible and they were allowed to participate in the selection process. On holding the selection, they were found to be more meritorious than the persons, who had challenged the ultimate selection of the persons, who were not eligible for making application in pursuance of the advertisement, in question. It was in such circumstances that the Court held, “Nevertheless, the principle adopted by the Public Service Commission Business Rules makes a selection broad based, as found by the learned Single Judge, and the best talents available for recruitment are not rejected merely by reason of the fact that the results of the examination were, for no fault of theirs, delayed until after the last date prescribed for submission of applications, but were announced before the date of interview.”

The fact is that the appellants did pass the examination and were fully qualified for being selected prior to the date of interview. By allowing the appellants to sit for the interview and by their selection on the basis of their comparative merits, the recruiting authority was able to get the best talents available. It was certainly in the public interest that the interview was made as broad based as was possible on the basis of qualification. The reasoning of the learned Single Judge was thus based on sound principle with reference to comparatively superior merits. It was in the public interest that better candidates who were fully qualified on the date of selection were not rejected, notwithstanding that the results of the examination in which they had appeared had been delayed for no fault of theirs. The appellants were fully qualified on the dates of the interview and taking into account the generally followed principle of Rule 37 in the State of Jammu & Kashmir, we are of opinion that the technical view adopted by the learned Judges of the Division Bench was incorrect and the view expressed by the learned Single Judge was, on the facts of this case, the correct view. Accordingly, we set aside the impugned judgment of the Division Bench and restore that of the learned Single Judge. In the result, we uphold the results announced by the recruiting authority. The appeal is allowed in the above terms. However, we make no order as to costs.

170. Turning to the expression, “equity does not know the half way”, as quoted by Mr. Choudhury, it is important to bear in mind that this expression was used, in Ashok Kumar Sharma (supra), in the partially dissenting judgment of RM Sahai, J, who observed, inter alia, as follows : –

“Efficacy of the rule or the objective of its enactment to throw open the competition by making it more broad is based and attract best talents cannot be disputed. But the issue involved is if it could be extended by analogy to any selection or competition held by any other body. Unfairness of construing the notification, in the manner suggested, has already been dealt with. Rules are framed under the Statute to carry out the objective of the enactment. If the rule making authority goes beyond the power conferred on it, the rule is rendered invalid. A Rule framed under one Statute, therefore, cannot be invoked for carrying out the objective of another enactment. I have, therefore, grave doubt if rules framed by the Public Service Commission could be utilised for purpose of construing the notification issued by the department of Government, which has separate set of rules”.

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23. What has persuaded me, however, to allow the appeals, is not that there was no illegality in calling the appellants for interview or that the Board was justified in taking the decision to follow the practice of Commission, but similar claim of the respondents had been rejected earlier by the High Court and by the time, it was allowed more than ten years had elapsed since the examination was held and selection was made. The High Court for this very reason did not enter into the question of eligibility and tried to adjust the equities between the parties by directing that all those candidates, namely, the appellants who were not qualified on the date of application should be placed as junior to respondents who had applied earlier were qualified. The order of the High Court, in my opinion, manifestly unjust. Once the eligibility bar was lifted by the High Court, for whatever reason may be as said by it due to passage of time or because of erroneous application of Rule 37 of the Public Service Commission Rules, the appellants who were subjected to same interview as the respondents and were found better qualified and secured higher marks, could not be placed junior to others. The equity does not know the halfway. Once the appellants were held to be eligible may be not strictly under law but on equitable considerations then, it was wholly unjust to place them junior and under those who in the same examination secured lesser marks.”

171. From the above observations made in Ashok Kumar Sharma (supra), it is abundantly clear that as the persons, whose appointments were challenged, had become eligible under the Rules for selection, they had faired better, they had been selected on merit, writ petitions challenging their appointments had already been rejected by the High Court and long after 10 years, their appointments had come to be challenged in the Supreme Court, the Apex Court did not interfere with their selection on the ground that equity cannot be applied the half way by allowing, on the one hand, illegal appointments to continue because of long passage of time, but enjoying, on the other hand, benefit of seniority to the appointees. Once illegal appointments are allowed to continue, full benefit of seniority for such appointments must be permitted, for, both the set of appointees had participated in the same selection process and the one, whose appointments had been challenged, were found to be more meritorious than those, who had challenged the said selection and appointments and that too after lapse of about ten years.

172. In the case at hand, however, unlike what happened in Ashok Kumar Sharma (supra), the Special batch and the Direct Batch had come out of two different sets of selection processes, some members of the Special batch had participated in the earlier selection meant for the Direct Batch and had failed and, instead of being selected through proper recruitment process, they came to be selected and appointed arbitrarily, mala fide and in colourable exercise of powers by rendering the relevant provisions of the recruitment rules non est.

173. It may be pointed out that the principles governing seniority between a regular appointee and an irregular appointee, as enunciated in Rafiquddin (supra), have also been followed in Ashok Kumar Sharma v. Chander Shekher, reported in (1993) Supp. (2) SCC 611. In Sukanti Mahapatra (supra), the Tribunal, on review of its earlier order, reversed its earlier finding and directed that the appointees, whose entry into the service was irregular being de hors the Rules, would rank junior to the regular appointees. In Sukanti Mahapatra (supra) too, if I may emphasise, the Tribunal did not set aside the appointment of the irregular appointees having regard to the long period of service put in by the irregular appointees. While not setting aside the appointment of irregular appointees, the Tribunal, however, moulded the relief as regards seniority between the irregular appointees vis-a-vis the regular appointees by directing that the irregular appointees shall rank junior to the regular appointees.

174. Aggrieved by the Tribunal’s direction as regards their seniority, the irregular appointees, as appellants, came before the Supreme Court in Sukanti Mahapatra (supra). Dealing with the case, the Special batch, while upholding the Tribunal’s order, observed and held as follows : –

“10. Now even though the Tribunal came to the conclusion that Rule 14 did not permit regularisation made under the impugned orders of January 3, 1985 and February 14, 1985, it, having regard to the long service put in by the employees named in the same two orders and on compassionate considerations, has supported the regularisation under Article 162 of the Constitution. It has moulded the relief on such considerations. Since that part of the order has not been assailed and since the appellants cannot be worse off by appealing, we cannot interfere with that part of the order. It will, therefore, be worked out as directed by the Tribunal but we may clarify that it will not have the effect of disturbing the seniority of regular appointees who will rank senior to the irregular appointees”.

175. From the principles of law as discussed hereinabove and reflected from the case of Rafiquddin (supra) and Sukanti Mahapatra (supra), it clearly follows that in a given facts and circumstances, when the appointment of a Government employee is found to be irregular and the Court, having regard to the long period of service, which the irregular appointee might have put in, may not set aside the appointment, yet it shall, ordinarily, make him rank junior to the regular appointee, particularly, when the regular and irregular appointees had not come to be selected through the same selection process, the selection process, in the case of the regular appointees, had been commenced and concluded earlier than that of the irregular appointees, but even then the regular appointees’ appointment was withheld and the irregular selectees were appointed in mala fide and colourable exercise of powers.

176. While considering the question as to whether the learned Tribunal, in the present case, could have interfered with the position of inter se seniority between the parties concerned, it is imperative to note that Rule 18 of the APS Rules, 1966, which govern the seniority of the members of the Assam Police Service, clearly states that the seniority of the members of the service shall be determined on the basis of their respective dates of appointment to the service. Relying on Rule 18, it has been submitted, on behalf of the Special batch, particularly, by Mr. Bhattacharjee that since the Special batch was appointed prior in point of time than the Direct Batch, the Direct Batch could not have been granted seniority over the Special batch, for, on the date on which the Special batch was appointed, the Direct Batch had not even born in the cadre.

177. While dealing with the above aspect of the matter, it is of utmost importance to note that Rule 18 comes into play, when the appointee is a regular appointee, for, an irregular appointee cannot be said to have become a member of the service and he cannot, therefore, be placed at par with the regular appointee. In such a situation, the regular and the irregular appointees cannot be treated equal, particularly, when the irregular appointee has surfaced from a selection process, which was separate from the one through which the regular appointee came to be selected and appointed.

178. In support of his contention that since Rule 18 has made the date of appointment as the date for the purpose of reckoning the seniority of the appointee concerned, it is the date of appointment of the Special batch, which may be allowed to prevail over the date of appointment of the Direct Batch, though Mr. Bhattacharjee has referred to, and relied upon, the decisions in State of Bihar and Ors. v. Akahouri Sachindra Nath and Ors., reported in (1991) Supp. (1) SCC 334, Ajit Kumar Rath v. State of Orissa and Ors., reported in AIR 2000 SC 85, Union of India and Ors. v. Lalita S Rao and Ors., , Kaliash Chand Joshi v. Rajasthan High Court and Ors., , Union of India v. S.S. Uppal and Anr., , and Jagdish Chandra Patnaik and Anr. v. State of Orissa and Ors., reported in (1998) SC 1926, it is of great significance to note that in none of these cases, the very entry into the service of the appointee was under challenge. When the validity of recruitment of the appointee was not questioned, it was, undoubtedly, the relevant recruitment Rules, which would have determined the date of seniority of the member of the service concerned.

179. In the light of what Rule 18 of the APS Rules, 1966, states, it is clear that if the appointments of two members of the service are regular, the person, who is appointed earlier in point of time, will rank senior. This position cannot, in fact, be disputed. However, in the case of present nature, where the appointment has already been held to be de hors the Rules, the appointees concerned cannot be said to have become member of the service on the date of their appointment. In such a situation, merely on the basis of the date of the appointment, the members of the Special batch cannot be given their seniority, for, their services, until regularised by a judicial order or otherwise, do not really exist in law.

180. If the Direct Batch is accorded seniority over the Special batch, it would not mean that the Direct Batch is treated to have been borne before the date of appointment of the Special batch. What it will mean is that when the Direct Batch was born, the Special batch did not even legally exist and it is in this background and with this limitation that the case of the Special batch has to be considered and the reliefs, if any, has to be given to the parties concerned.

181. In view of the fact that the members of the Special batch are found to have been appointed de hors the Rule and also for the reasons, which I have already assigned hereinabove, which lead one to the lone and only conclusion that the appointment of the members of the Special batch is not really sustainable in law, question of giving any of the members of the Special batch seniority by taking into account the past services, if any, rendered by him to the Government, State or Central, before he came to be appointed as a member of the Special batch does not arise at all. Considered thus, the prayer made, in WP(C) Nos. 4028/2003, 4129/2003 and 1031/2003, for reckoning the period of services rendered by the petitioners in the past and before they were recruited as members of the Special batch cannot be accepted.

Point No. (IV) Reliefs, if any.

182. Let me, lastly, turn to Point No. IV, namely, what reliefs, if any, the parties are entitled.

183. One glaringly noticeable feature of the case of GS Lamba (supra), Bachan Singh (supra), Narender Chadda (supra), JC Yadav (supra) and Ashok Kumar Sharma (supra), as already indicated hereinabove, is that in none of these cases, the Court, while taking note of the breach of the relevant recruitment Rules, noticed that the departure from the Rules was on account of any mala fide, arbitrariness or in coulourable exercise of powers. This feature of the authorities referred to hereinbefore, namely, GS Lamba (supra), Bachan Singh (supra), Narender Chadda (supra), JC Yadav (supra) and Ashok Kumar Sharma (supra) is one of the principal distinctions between the said three authorities and the present case. In the present case, the specific finding of this Court is that the Rules were twisted, turned and thrown overboard, while making recruitment of the Special batch and that the recruitments of the Special batch have been made arbitrarily, mala fide, designedly and in colourable exercise of powers.

184. In a situation, such as the present one, even if this Court, on account of lapse of a long period of time, chooses not to interfere with the appointments of the Special batch, the Special batch cannot be allowed to reap benefit of the arbitrary, mala fide and designedly adopted way of appointment. Viewed from this angle, the members of the Direct Batch must be given, at least, seniority over the members of the Special batch.

185. Such brazen faced flouting of laws, as the present case reveals, and such exhibition of the unbridled might by a chosen few, contrary to the provisions of law, as the case at hand demonstrates, cannot be ignored and allowed to stand good on record, for reluctance, on the part of the Court, to interfere with such a process of selection will shake the confidence of the people in the ability of the Courts to check and ensure that neither the APSC nor the State Government be allowed to flout the law with impunity and confer thereby legitimacy on such unconscionable made appointees, such as, the members of the Special batch. If the members of the Special batch are allowed to continue as senior to the members of the Direct Batch, it will be tantamount to putting a seal of approval on the wholly arbitrary conduct of the Government. Casualty of such inaction, on the part of the Court, would be the rule of law and public interest.

186. Because of what have discussed and pointed out above, as a whole, this Court is firmly of the view that the appointments of the Special batch deserve to be set aside and quashed. However, I refrain from doing so out of consideration for the period of service, which they have rendered. Thus, while not interfering with the appointment of the members of the Special batch, the members of the Special batch must, at least, be made to rank junior to the members of the Direct Batch and this is the relief, which the learned Tribunal has, in fact, granted. The order passed by the learned Tribunal, while giving necessary relief to the Direct Batch, also gave more than adequate relief to the Special batch, which, legalistically and strictly speaking, the members of the Special batch do not deserve.

187. In the result and for the reasons discussed above, the impugned order, dated 11-10-2002, passed by the learned Tribunal is hereby maintained and not interfered with. The WP(C) 298/2003, 7843/2003, 4028/2003, 7564/2002, 4129/2003, 1031/2003, 7428/2002 and 8081/2002 shall accordingly stand dismissed. Though WP(C) No. 69/2003 aforementioned deserves to be allowed, the same is closed for the reasons assigned hereinabove.

188. With the above observations and directions this batch of writ petitions shall stand disposed of.

189. No order as to costs.

190. Send back the records.