{"id":219979,"date":"1967-12-14T00:00:00","date_gmt":"1967-12-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anand-parkash-saksena-vs-union-of-india-ors-on-14-december-1967"},"modified":"2015-07-08T18:30:40","modified_gmt":"2015-07-08T13:00:40","slug":"anand-parkash-saksena-vs-union-of-india-ors-on-14-december-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anand-parkash-saksena-vs-union-of-india-ors-on-14-december-1967","title":{"rendered":"Anand Parkash Saksena vs Union Of India & Ors on 14 December, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Anand Parkash Saksena vs Union Of India & Ors on 14 December, 1967<\/div>\n
Equivalent citations: 1968 AIR 754, \t\t 1968 SCR (2) 311<\/div>\n
Author: R Bachawat<\/div>\n
Bench: Wanchoo, K.N. (Cj), Bachawat, R.S., Shelat, J.M., Mitter, G.K., Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nANAND PARKASH SAKSENA\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\n14\/12\/1967\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nWANCHOO, K.N. (CJ)\nSHELAT, J.M.\nMITTER, G.K.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1968 AIR  754\t\t  1968 SCR  (2) 311\n CITATOR INFO :\n R\t    1976 SC2345\t (16)\n RF\t    1980 SC1275\t (24)\n\n\nACT:\nIndian\tAdministrative\tService-I.A.S. Extension  to  States\nScheme-Officer in the junior scale of pay if has a right  to\na  post in the senior scale-All India  Services\t (Discipline\nand  Appeal) Rules 1955, r. 3-Filling of posts by  non-Cadre\nofficers,  if  penalty-I.A.S. Recruitment  Rules,  1954,  r.\n4(3),\tif  bad\t for  excessive\t  delegation-Regulation\t  of\nSeniority  Rules,  1954, r. 3(3)(b),  Seniority\t of  Special\nRecruits Regulation, 1960, regulation 3(3), if violative  of\nConstitution of India, Arts. 14, 16.\n\n\n\nHEADNOTE:\nThe Madhya Bharat Cadre of the Indian Administrative Service\nwas constituted in 1951 under the I.A.S. Extension to States\nScheme.\t  The Cadre included all senior posts.\tA number  of\njunior\tand  training  posts were provided  to\tbe  held  by\nofficers  recruited  to the cadre before they  acquired\t the\nexperience  and\t seniority necessary to hold  senior  posts.\nThe primary source for the initial constitution of the Cadre\nwas the existing incumbents of the State Service.  They were\nselected  and included in three Lists.\tOfficers in List  I,\nwere  immediately appointed to the service Officers in\tList\n11 were to be taken in the service only when found  suitable\nand  those  in\tList  III were not to  be  absorbed  in\t the\nservice.   List\t 11 and III officers were  counted  against'\nsenior posts but these posts held by them were excluded from\nthe  Cadre for the period they were held by those  officers.\nThe  Cadre  was\t to be maintained on a\tpermanent  basis  by\ndirect recruitment by competitive examination and  promotion\nof State Civil Service Officers and twenty-five per cent  of\nthe  senior posts were reserved for the latter.\t  The  Cadre\ncontinued  Co be governed by the Scheme until 1954 when\t the\nI.A.S. Recruitment, Seniority Cadre and Pay Rules were made.\nRule  9(1)  of the Cadre Rules provides for  appointment  of\nnon-cadre  officers  to cadre posts, i.e. senior  posts,  if\nsuitable cadre officers are not available and the proviso to\nthe  rule preserved the arrangement under the  Extension  to\nStates\tScheme for the holding of cadre posts  by  non-Cadre\nofficers.  Under Rule 9(1) of the Recruitment Rules  twenty-\nfive  per cent of the senior posts are reserved for  persons\nrecruited  under  rule 8, i.e. by promotion  of\t substantive\nmembers of the State Civil Service and by selection of those\nwho hold gazetted posts in connection, with the affairs of a\nState.\t The  Special Recruitment  Regulations,\t 1956,\tmade\nunder  rule  4\tof the Recruitment of  Rules,  provides\t for\nrecruitment  by\t promotion to the Service  by  selection  of\npersons\t serving in connection with the affairs of a  State.\nIn  the\t matter of seniority, the  Regulation  of  seniority\nRules, gives a promote from State Civil Service the year  of\nallotment  of  the junior-most\tdirect\trecruit\t officiating\ncontinuously  in  a  senior post earlier than  the  date  of\ncommencement  of  such\tofficiation by\tthe  promotee.\t The\nseniority of Special Recruits Regulation,, 1960, adopts\t the\nformula applicable to promotees for fixing the seniority  of\nthose  recruited by promotion under the Special\t Recruitment\nRegulations.\nThe   petitioner,   a\tdirect\t recruit   by\t competitive\nexamination,, was appointed to a junior post in the  Service\non April 2, 1952.  He was originally allotted to the  Madhya\nBharat\tCadre, which along with the former  Vindhya  Pradesh\nand Madhya Pradesh Cadres merged in the present L2 Sup\nCI\/68-9\n612\nMadhya\tPradesh Cadre constituted on November 1,  1956.\t  He\nwas  not found suitable to hold a senior post till  November\n17,  1956, when. he was appointed to officiate in  a  senior\npost.  At the time his appointment to the service there were\nno vacancies in the senior posts.  Vacancies arose before he\nwas  appointed\tto officiate in the senior post\t and  after.\nSome  of  the respondents who were officers  of\t the  Madhya\nBharat\tand the former Madhya Pradesh State  Civil  Services\nwere  promoted\tbefore\tthe integration\t of  the  cadres  on\nNovember  1, 1956 to fill the vacancies against the  twenty-\nfive  per  cent quota and several  non-Cadre  officers\twere\nappointed under r. 9(1) of the Cadre Rules.  Vacancies\twere\nalso  filled in by promotion under the\tSpecial\t Recruitment\nRegulations.  In the gradation List published on January  1,\n1966  all  the\trespondents  were shown\t as  senior  to\t the\npetitioner.\nIn  a writ petition, under Art. 32 the petitioner  contended\nthat  (i) he had a right to hold a post in the senior  scale\nof  pay from April 2. 1952 to November 17, 1956,  under\t the\nRules  and in tile light of this Court's decision in  P.  C.\nWadhwa v. Union of India and the<\/a> filling of the vacancies by\nnon-Cadre officers amounted to withholding of promotion\t and\npenalty within the meaning of r. 3 of the All India  Service\n(Discipline  and Appeal) Rules. 1955; (ii) under  the  rules\nseventy-five  per cent of the total number of  senior  posts\nwas  exclusively  reserved for direct recruits and  that  in\ncomputing  the twenty-five per cent quota officers in  Lists\n11 and III and special recruits had to be included; (iii) r.\n4(3)  of the Recruitment Rules which authorised the  Central\nGovernment  to make regulation for special  recruitment\t was\nbad on the ground of excessive deletation; (iv) r. 3 (3) (b)\nof  the\t Regulation of Seniority Rules,\t 1954,\tmade  unjust\ndiscrimination\tbetween a promotee and a direct\t recruit  in\nthe  matter  of seniority by arbitrarily allotting  a  lower\nyear of allotment to a promotee and therefore violated Arts.\n14  and 16 of the Constitution; and (v) regulation  3(3)  of\nthe Seniority of Special Recruits, Regulation 1960, offended\nArts.  14  and\t16  inasmuch  as  the  relevant\t rules\t and\nregulations  set  up  an arbitrary  double  standard  for  a\nspecial recruit enlisted by promotion.\nHELD : Dismissing the petition.\n(i)  The  filling of a vacancy by a non-Cadre officer  under\nr.  9 of the Cadre Rules does not infringe any right of\t the\nCadre officer nor does it amount to withholding of Promotion\nor a Penalty within the meaning of r. 3 of All India Service\n(Discipline and Appeal) Rules, 1955.  A Cadre Officer in the\njunior scale of pay cannot claim 'a right to fill a  vacancy\nin  the\t senior scale if he is not 'suitable  and  no  Cadre\nofficer junior to him is Promoted to fill the vacancy.\t The\ndecision  in  Wadhwa's case is distinguishable.\t  That\tcase\nonly  decided that the reversion of a Cadre,  office,  while\nCadre  officers junior to him continued in the senior  scale\namounted  not  only  to\t reduction  in\trank  but  also\t  to\nwithholding  of promotion.  Rule 6 A(2) of  the\t Recruitment\nRules introduced in 1965 after the decision in Wadhwa's case\nnow  makes explicit what was always implicit in r.  9(i)  of\nthe Cadre Rules.\nIn  the\t instant  case\tno  Cadre  Officer  junior  to\t the\nPetitioner  was\t promoted  to the  Cadre  post\tbe-fore\t his\nPromotion  on November 17, 1956 and after Promotion  he\t was\nneither\t reverted nor reduced in rank nor was his  promotion\nwithheld. [619 F-H: 620 E-F]\nP.   C.\t Wadhwa\t v.  Union of India,<\/a> [1964]  4\tS.C.R.\t598.\ndistinguished.\n613\n(ii) Seventy-five per cent of the senior posts may be filled\nby  recruits  other  than those recruited  by  promotion  or\nselection  under  r. 8 of the  Recruitment  Rules.   Special\nrecruits  are  appointed against the seventy-five  per\tcent\nquota and rule 9(3)(b)(iv) added in 1965 makes explicit what\nwas  always  implicit in r. 9(1) of the\t Recruitment  Rules.\nUnder  the Extension. to State Scheme officers in  Lists  II\nand  III were not counted against the twenty-five  per\tcent\nquota.\t Rule 9(3)(b)(iii) of the Recruitment Rules make  it\nclear  that in computing the twenty-five per cent quota\t the\nappointments  of officers in List 11 will be excluded.\t[620\nG, H]\n(iii)\t  Assuming that the doctrine of excessive delegation\nof  Legislative\t power applies to rules, r.  4(3)  does\t not\nsuffer from the vice of excessive delegation. in making .'he\nregulations  under the rule the Central Government is to  be\nguided\tby the exigencies of the service and the  advice  of\nthe  State  Governments\t 'and  (,he  Union  Public   Service\nCommission.   There authorities are the best judges  of\t the\nappropriate regulations to be made in the matter [622 A-C]\n(iv) Rule  3(3)(b) of the Regulation of Seniority  Rules  is\nnot  violative of Arts. 14 or 16 of the\t Constitution.\t The\nobject of the rule is to fix the seniority of the  promotees\nwho obtained promotion after long service in the State Civil\nService, in relation to direct recruits.  The 'rule attempts\nto strike a just balance between the- conflicting claims  of\nthe promotees and direct recruits. [622 F-G]\n(v)  Regulation\t 3(3)  of  the\tSpecial\t Recruits  Seniority\nRegulations  is not violative of Arts. 14 and  16.   Special\nrecruits  'are neither direct recruits nor promotees.\tThey\nform a distinct class.\tThe regulation, properly adopts\t the\nformula applicable to promotees for fixing the seniority  of\nspecial recruits enlisted by promotion so that in the matter\nof  seniority  all officers recruited from the\tState  Civil\nServices 'are placed on the same footing. [623 A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 58 of 1967.
\nPetition  under Article 32 of the Constitution of India\t for
\nthe enforcement of the Fundamental Rights.
\nN.   C. Chatterjee, A. N. Sinha, S. Balakrishnan and K.\t B..
\nRohtage, for the petitioner.\n<\/p>\n
Niren De, Solicitor-General, V. A. Seyid Muhammad and
\nR.   H. Dhebar for R. N. Sachthey, for respondent No. 1.
\nB. Sen and I. N. Shroff, for respondents Nos. 2 to 18,,
\nThe Judgment of the Court was delivered by
\nBachawat, J. The petitioner is a member of the Indian  Admi-
\nnistrative  Service having been appointed to a\tjunior\tpost
\ntherein\t on  April  2, 1952 on the basis  of  a\t competitive
\nexamination  held by the Union Public Service Commission  in
\nthe  year  1951.  He completed his probation on\t October  2,
\n1953.  He was originally allotted to the Madhya Bharat Cadre
\nof  the Indian Administrative Service which along  with\t the
\nformer Vindhya Pradesh and Madhya Pradesh cadres, merged  in
\nthe  present Madhya Pradesh cadre of  Indian  Administrative
\nService constituted on November 1, 1956.\n<\/p>\n
614<\/span><\/p>\n
He  was appointed to officiate in a senior post on  November
\n17,  1956.   In the gradation list published on\t January  1,
\n1966,  hi,; number is 70.  In this writ petition under\tArt.
\n32  of the Constitution he claims that (a) he had the  right
\nto hold a post in the senior scale of pay from April 2, 1952
\nup to November 17, 1956 under the relevant rules read in the
\nlight  of the decision in P. C Wadhwa v. Union\tof  India<\/a>(1)
\nand  that  (b)\the is entitled to  a  higher  place  in\t the
\ngradation list.\t He asks for the issue of appropriate  writs
\ndeclaring his rights and giving him consequential reliefs.
\nThe  Madhya  Bharat  cadre  of\tthe  Indian   Administrative
\nService:  was constituted on June 1, 1951 under\t the  Indian
\nAdministrative\tService\t Extension to  States  Scheme.\t The
\ncadre  included\t all senior posts.  A number of\t junior\t and
\ntraining  posts\t were  provided,  to  be  held\tby  officers
\nrecruited  to the cadre before the) acquired the  experience
\nand  seniority\tnecessary  for holding\tsenior\tposts.\t The
\ninitial\t constitution  of the cadre was made  from  (1)\t the
\nexisting   incumbents  and  (2)\t emergency  recruits.\t The
\nexisting  incumbents  were considered to be  the  first\t and
\nprimary\t source\t of recruitment.  They were  selected  by  a
\nSpecial\t Recruitment  Board  and  divided  in  three  lists.
\nOfficers  in  List  I  were  considered\t fit  for  immediate
\nappointment  to\t the Service.  Officers in List II  were  to
\ncontinue  to hold their present posts, their work was to  be
\nwatched\t for 5 years and were to be absorbed in the  Service
\nas and when they were found fit.  Officers in List III\twere
\nto  hold  their present posts or posts\tof  equivalent\trank
\nuntil  they retired but they were not to be absorbed in\t the
\nService.   The\tposts held by officers in Lists 11  and\t III
\nwere  excluded\tfrom the cadre for the period  during  which
\nthey  were  held  by those officers.  The cadre\t was  to  be
\nmaintained on a permanent basis by (a) direct recruitment on
\nthe result of the competitive examination and (b)  promotion
\nfrom amongst officers of the State Civil Service.  As in the
\ncase  of  the Provincial cadres, 25 per cent of\t the  senior
\nposts were earmarked for promotion of officers of the  State
\nCivil Service.\n<\/p>\n
On  June 1, 195 1, the number of senior posts in the  Madhya
\nBharat\t cadre\twas  25.   On  selection  by   the   Special
\nRecruitment Board, 6 officers were placed in List I and were
\nappointed  to  the  Service  from  January  1,\t1951.\tFour
\nofficers were placed in List II and 11 officers were  placed
\nin List III and they continued to hold their posts under the
\nExtension  to States Scheme.. The remaining 4  senior  posts
\nwere held by 4 emergency recruits.  On April 2, 1952,  there
\nwas  thus  no available vacancy for the\t petitioner  in\t the
\nsenior posts.  As a matter of fact, 2 direct recruits senior
\nto the petitioner were in the junior scale of pay.
\n(1)  [1964] 4 S.C.R. 598.\n<\/p>\n
\t\t\t    615<\/span><\/p>\n
In September 1954, the Central Government framed the  I.A.S.
\nCadre  Rules, 1954, I.A.S. Recruitment Rules,  1954,  I.A.S.
\nPay  Rules, 1954 and I.A.S. Regulation of  Seniority  Rules,
\n1954  in  exercise of its powers under s. 3(1)\tof  the\t All
\nIndia  Services\t Act, 1951.  These rules were  amended\tfrom
\ntime  to time.\tUnder r. 2 (a) of the Cadre Rules,  a  cadre
\nofficer means a member of the Indian Administrative Service.
\nUnder r. 2(b), a cadre post means a senior cadre post  under
\nthe  State  Government.\t  Under r. 3,  an  I.A.S.  cadre  is
\nconstituted for each State or group of States.\tUnder r.  4,
\nthe strength and composition of each cadre is determined  by
\nregulations made by the Central Government.  Rule 8 provides
\nthat “Save as otherwise provided in these rules, every cadre
\npost  shall  ‘be  filled  by a\tcadre  officer.”  Rule\t9(1)
\nprovides  that “A cadre post in a State may be filled  by  a
\nperson who is not a cadre officer if the State Government is
\nsatisfied  (a)\tthat the vacancy is not likely to  last\t for
\nmore  than  three months; or (b) that there is\tno  suitable
\ncadre  officer\tavailable  for filling the  vacancy.”  If  a
\nperson\tother than a cadre officer is appointed to  a  cadre
\npost for a period exceeding three months, the fact shall  be
\nreported  to the Central Government who may, on\t receipt  of
\nthe  report,  direct the State Government to  terminate\t his
\nappointment  and if he is likely to fill a cadre post for  a
\nperiod\texceeding  six months, the Central  Government\tmust
\nseek  the advice of the Union Public Service Commission\t and
\nin the light of its advice, give suitable directions to\t the
\nState  Government.   It\t was provided that r.  9  would\t not
\naffect\tthe  existing  arrangements  made  by  the   Central
\nGovernment  in\tconnection with the Governments\t of  Part  B
\nStates\tand the State of Vindhya Pradesh at the time of\t the
\ninitial constitution of the cadre for certain cadre posts to
\nbe filled by non-cadre officers.\n<\/p>\n
Rule 3 of the I.A.S. Recruitment Rules, 1954 gives the cons-
\ntitution  of the service.  Rule 4 specifies the\t methods  of
\nrecruitment.   Sub-rule\t (1) of r. 4, as  amended,  provides
\nthat “Recruitment to the Service, after the commencement  of
\nthese rules, shall be by the following methods, namely:\t (a)
\nby  a competitive examination; (aa) by selection of  persons
\nfrom  among  released Emergency\t Commissioned  Officers\t and
\nShort  Service\tCommissioned Officers, commissioned  in\t the
\nArmed Forces of the Union after the 1st November, 1962;\t (b)
\nby  promotion  of  substantive\tmembers\t of  a\tState  Civil
\nService;  (c)  by  selection, in special  cases\t from  among
\npersons,  who hold in a substantive capacity gazetted  posts
\nin  connection with the affairs of a State and who  are\t not
\nmembers\t of  a State Civil Service.” Sub-rule (3)  of  r.  4
\nprovides  that “Notwithstanding anything contained  in\tsub-
\nrule  (1), if in the opinion of the Central  Government\t the
\nexigencies of the service so require, the Central Government
\nmay,  after consultation with the State Governments and\t the
\nCommission, adopt
\n616<\/span>
\nsuch methods of recruitment to the Service other than  those
\nspecified  in  the said sub-rules as it may  by\t regulations
\nmade  in  this behalf prescribe.” Rule 6  provides  that  no
\nappointment  to\t the  Service shall  be\t made  except  after
\nrecruitment  by one of the methods specified by r.  4  Rules
\n6A(2)  introduced with effect from September 24, 1966  after
\nthe  decision  in P. C. Wadhwa’s case(1)  provides  that  “A
\ndirect\trecruit\t in the junior time-scale of  pay  shall  be
\nappointed  to  a post in the senior time-scale\tof  pay\t if,
\nhaving\tregard\tto his length of  service,  experience,\t and
\nperformance  in\t the  junior time-scale of  pay,  the  State
\nGovernment is satisfied that he is suitable for\t appointment
\nto  a  post in the senior time-scale of pay.” Rules  7.\t 7A,
\n8(1)  and  8(2) deal with the four  methods  of\t recruitment
\nspecified  in  r. 4 and empowers the Central  Government  to
\nmake   appropriate  regulations.   Rule\t 8(1)\tdeals\twith
\nrecruitment by promotion of substantive members of the State
\nCivil\tService.   Rule\t 8(2)  deals  with  recruitment\t  by
\nselection in special cases from amongst persons who hold, in
\na  substantive capacity, gazetted posts in  connection\twith
\nthe  affairs  of the State and who are not  members  of\t the
\nState Civil Service.  Rule 9(1), as amended, provides  inter
\nalia  that “the number of persons recruited under rule 8  in
\nany State or group of States shall not, at any time,  exceed
\n25  per cent of the number of” senior posts in\trelation  to
\nthat  State or group of States.\t Rule 9(3)(b) provides\tthat
\n“for the purpose of determining the percentage specified  in
\nsub-rule (1)(b) the following category of officers shall ‘be
\nexcluded  namely  :- (i) officers of a State  Civil  Service
\nappointed  to  the Service under the  Emergency\t Recruitment
\nScheme otherwise than against the 25 per -cent quota;  (iii)
\nofficers  of a State Civil Service appointed to the  Service
\nfrom  List  II, prepared by the\t Special  Recruitment  Board
\nunder  the  Indian  Administrative  Service  (Extension\t  to
\nStates)\t Schemes;  (iv) officers of a  State  Civil  Service
\nappointed  to  the Service under the  Indian  Administrative
\nService (Special Recruitment) Regulations, 1956.” Rule 9 (3)\n<\/p>\n
(b) (iv) was added oil October 15, 1965.\n<\/p>\n
The I.A.S. (Special Recruitment) Regulations, 1956 were made
\nunder  r. 4(3) of the Recruitment Rules.  Regulation 3\tpro-
\nvides  that special recruitment will be made (a)  by  direct
\nrecruitment by selection and (b) by promotion to the Service
\nby  selection  of  persons serving in  connection  with\t the
\naffairs\t of  the State.\t Regulations 8 and 9 adopt  for\t the
\npurposes   of  special\trecruitment  the   regulations\t for
\nappointment   by  competitive  examination,  promotion\t and
\nselection  made\t under\trules  7,  8(1)\t and  8(2)  of\t the
\nRecruitment Rules with appropriate modifications.
\n Rule 3 of I.A.S. (Pay) Rules, 1954 prescribes the scales of
\npay  admissible to the members of the Service.\tThe  _junior
\nscale is
\n(1)[1964] 4 S.C.R. 598.\n<\/p>\n
617<\/span><\/p>\n
scale is Rs. 900 (6th year or under)-50-1000-60-1600-50-1800
\n(22 years).  The selection grade is Rs. 1800-100-2000.\tRule
\n4(1) provides that the initial pay of a direct recruit shall
\nbe fixed at the minimum of the junior time-scale.  Rule 4(2)
\nprovides  that\tthe pay of a member of the  Service  in\t the
\njunior\ttime-scale  shall on appointment to a  post  on\t the
\nsenior\ttime-scale, be fixed at the corresponding  stage  of
\nthe senior time-scale as shown in Sch. 1. The two scales  of
\npay  are  given in Sch. 1 in parallel  columns\tagainst\t the
\nyears of service.  The increments, withholding of increments
\nand grant of advance increments are regulated by rules 5,  6
\nand 7.\n<\/p>\n
Rule  3(1) of I.A.S. (Regulation of Seniority)\tRules,\t1954
\nprovides  that\tevery officer shall be assigned\t a  year  of
\nallotment.  Rule 3 (3) (a) provides inter alia that the year
\nof  allotment of an officer appointed to the  Service  after
\nthe commencement of these rules, shall be-where the  officer
\nis appointed to the Service on the results of a\t competitive
\nexamination,  the  year\t following the year  in\t which\tsuch
\nexamination was held.” Rule 3 (3) (b) provides that the year
\nof  allotment of an officer shall be “where the\t officer  is
\nappointed  to  the Service by promotion in  accordance\twith
\nsubrule (1) of rule 8 of the Recruitment Rules, the year  of
\nallotment of the junior-most among the officers recruited to
\nthe  Service  in accordance with rule 7 of those  rules\t who
\nofficiated continuously in a senior post from a date earlier
\nthan  the  date of commencement of such officiation  by\t the
\nformer.”  The  proviso to r. 3 (3) (b) lays down  that\t“the
\nyear of allotment of an officer appointed to the Service  in
\naccordance  with sub-rule (1) of rule 8 of  the\t Recruitment
\nRules who started officiating continuously in a senior\tpost
\nfrom  a\t date  earlier than ‘the date on which\tany  of\t the
\nofficer\t recruited to the Service in accordance with rule  7
\nof those Rules so started officiating shall be determined ad
\nhoc by the Central Government in consultation with the State
\nGovernment  concerned.”\t Rule 5A authorises  the  making  of
\nregulations  for fixing the seniority of  special  recruits.
\nRule  6 provides for preparation of a gradation list of\t all
\nofficers borne on the cadre arranged in order of seniority.
\nRegulation  3 of the I.A.S. (Seniority of Special  Recruits)
\nRegulation,  1960  made\t under r. 5A of\t the  Regulation  of
\nSeniority  Rules  fixes the seniority of  special  recruits.
\nRule  3(3) provides that “In the case of officers  recruited
\nby  promotion from the State Civil Service under clause\t (b)
\nof  regulation\t3  read\t with regulation  9  of\t the  Indian
\nAdministrative\tService (Special  Recruitment)\tRegulations,
\n1956,  the  year of allotment shall be fixed  in  accordance
\nwith the provisions of clause (b) of sub-rule (3) of rule  3
\nof   the  Indian  Administrative  Service   (Regulation\t  of
\nSeniority) Rules, 1954.”\n<\/p>\n
618<\/span><\/p>\n
The relevant provisions of the parallel Cadre,\tRecruitment,
\nPay  and Regulation of Seniority Rules of the Indian  Police
\nService\t were considered by this Court in P. C.\t  Wadhwa  v.
\nUnion of India<\/a>(1).  There, the appellant was a member of the
\nIndian\tPolice Service.\t He joined the Service in  1952\t and
\nwas confirmed in 1953.\tIn 1958 he was promoted to officiate
\nin  the\t senior time-scale as Additional  Superintendent  of
\nPolice at Ferozepore in place of the permanent incumbent who
\nwas  on leave.\tIn July 1964, he was served with  a  charge-
\nsheet and he submitted a reply.\t Before the enquiry  started
\nhe  was\t reverted  to  his  substantive\t rank  of  Assistant
\nSuperintendent of Police.  The reversion was not due to\t the
\nreturn\tof the permanent incumbent from leave or  deputation
\nor for any administrative reason.  Other officers junior  to
\nhim continued to officiate in the senior scale while he\t was
\nreverted.   His personal file revealed a note by the  Senior
\nSuperintendent\tof Police to the effect that a\tregular\t en-
\nquiry  into  his conduct would take a long time and  it\t was
\nadvisable  to revert him.  He was not given any\t opportunity
\nof  showing cause against the action taken against him.\t  He
\nfiled a writ petition in the High Court asking for the issue
\nof  a writ quashing the order of reversion.  The High  Court
\ndismissed the petition.\t On appeal, this Court set aside the
\norder  of  the High Court and allowed  the  petition.\tThis
\nCourt  held that the reversion was made in contravention  of
\nArt.  311 of the Constitution.\tThe majority held  that\t the
\nreversion was by way of punishment and amounted to reduction
\nin rank and withholding of promotion on grounds which may be
\nsummarised  thus  : There is only one cadre  in\t the  Indian
\nPolice\tService.  A person in the junior time-scale  of\t the
\nService is as much a cadre officer as one holding a post  in
\nthe  senior time-scale or a post above the time-scale.\t The
\ntransition  of\ta member of the Service from  one  scale  to
\nanother does not depend upon selection or the  consideration
\nof  the\t comparative merits of the officers  in\t the  junior
\nscale  inter  se  but  only  upon  a  consideration  of\t his
\nseniority.  Mudholkar, J. said that “the whole scheme of the
\nrules  indicates that a person borne on the junior scale  of
\npay  has a right to hold a post on the senior scale  of\t pay
\ndepending upon the availability of a post and his  seniority
\nin  the\t junior\t scale of pay.” The learned  Judge  added  :
\n“Despite  the  fact  that he holds a  certain  rank  in\t the
\ngradation list persons who also belong to the Indian  Police
\nService and who were recruited to it subsequent to him\thave
\ncontinued  to  hold  or have been appointed  to\t hold  posts
\ncarrying  salary  in the senior scale.\t This  would  itself
\nindicate  that\tthe action taken against him was by  way  of
\npenalty or punishment.\tFor, he has not only been reduced in
\nrank  but  his promotion to the senior scale has  also\tbeen
\nwithheld.”\n<\/p>\n
(1)  [1964] 4 S.C.R. 598.\n<\/p>\n
\t\t\t    619<\/span><\/p>\n
In this background, the petitioner says that he was deprived
\nof  his right to hold a senior post during the\tperiod\tfrom
\nApril  2,  1952\t up to November 17,  1956.   We\t have  found
\nalready that on April 2, 1952 there was no available vacancy
\nin  the\t senior post to which he should be  appointed.\t The
\nMadhya\tBharat\tCadre  continued  to  be  governed  by\t the
\nExtension  to  States Scheme until September 1954  when\t the
\nCadre,\tRecruitment, Pay and Regulation of  Seniority  Rules
\nwere made.  The proviso to r. 9 of the Cadre Rules preserved
\nthe  existing  arrangements under the  I.A.S.  Extension  to
\nStates Scheme for the holding of certain cadre posts by non-
\ncadre,\tofficers.   On June 24, 1955, the  strength  of\t the
\nMadhya\tBharat\tcadre  was  revised  and  increased  to\t 46.
\nRespondents Nos. 14, 15 and 16 belonged to the Madhya Bharat
\nState Service.\tRespondent No. 14 was appointed on June\t 24,
\n1955 and respondents Nos. 15 and 16 were appointed on  April
\n25,  1956  to senior posts against vacancies in the  25\t per
\ncent  quota.  Several non-cadre officers were  appointed  to
\nfill  vacancies in the senior posts under r. 9 of the  Cadre
\nRules.\t The  petitioner was not found suitable\t to  fill  a
\nvacancy in a senior post until November 17, 1956.
\nThe  petitioner contends that (1) he had the absolute  right
\nto  be\tappointed to a vacancy in the senior  posts  on\t and
\nafter  April  2, 1952, (2) the filling of the  vacancies  by
\nnon-cadre  officers on the ground that he was  not  suitable
\nwas an infringement of his right and amounted to withholding
\nof promotion and a penalty within the meaning of r. 3 of the
\nAll India Services (Discipline and Appeal) Rules, 1955,\t (3)
\n75 per cent of the total number of senior posts was reserved
\nexclusively for direct recruits and (4) in computing the  25
\nper  cent  quota  under r. 9(1)\t of  the  Recruitment  Rules
\nofficers in Lists 11 and III and special recruits should  be
\nincluded.  These contentions must be rejected.
\nVis  a\tvis  another cadre officer junior to  him,  a  cadre
\nofficer\t in  the  junior  scale of  pay\t has  the  right  of
\npromotion  to  a post in the senior scale on the  ground  of
\nseniority.   This  right is infringed if  the  junior  cadre
\nofficer\t is promoted to fill a vacancy in the senior  scale,
\nwhile  he  continues to hold a post in the junior  scale  of
\npay.  But he cannot claim the right to fill the, vacancy  if
\nhe  is\tnot suitable and no cadre officer junior to  him  is
\npromoted  to  fill the vacancy.\t An officer  in\t the  junior
\nscale  of  pay has no right to a senior post as soon  as  he
\njoins  the  Service.  He may be appointed to a\tsenior\tpost
\nonly  when he is found suitable having regard to his  length
\nof  service, experience and performance in the junior  scale
\nof  pay.   Rule\t 6A(2) of the Recruitment  Rules  now  makes
\nexplicit  what\twas  always implicit in r. 9  of  the  Cadre
\nRules.\n<\/p>\n
Under r. 9(1) of the Cadre Rules, a senior cadre post may be
\nfilled\tby  a  non-cadre officer if  there  is\tno  suitable
\nofficer
\n620<\/span>
\navailable for filling the vacancy.  Similar provision is  to
\nbe  found  in  paragraph  3  of\t the  memorandum   regarding
\nconstitution  of  the  Indian  Administrative  Service\t and
\nparagraph 5 of the Indian Civil Administrative Cadre  Rules,
\n1950.\tThe  appointment of a non-cadre officer to  a  cadre
\npost  under  r.\t 9(1)  of the Cadre  Rules  is\ta  temporary
\narrangement  which  may be terminated at any time  when\t the
\nGovernment  finds a cadre officer suitable for\tfilling\t the
\nvacancy.  Until the cadre officer is found suitable, a\tnon-
\ncadre  officer\tmay be appointed to fill the vacancy  in  a”
\npost  in the senior scale of pay.  The cadre officer has  no
\nright  to  fill\t the vacancy if he  is\tnot  suitable.\t The
\nfilling\t of the vacancy by a non-cadre ,officer under  r.  9
\ndoes  not infringe any right of the cadre officer nor  does-
\nit amount to a withholding of promotion or a penalty  within
\nthe  meaning of r. 3 of the All India  Services\t (Discipline
\nand Appeal) Rules, 1955.\n<\/p>\n
The  decision in P. C. Wadhwa’s case(1) is  distinguishable.
\nThere,\ta  cadre  officer in the junior\t scale\tof  pay\t was
\npromoted  to officiate in a post in the senior scale of\t pay
\nand  was thereafter reverted to his substantive\t post  while
\nother cadre officers junior to him continued to officiate in
\nposts in the senior scale of pay.  As against cadre officers
\njunior\tto  him,,he had the right to hold :the post  in\t the
\nsenior\tscale  of pay.\tThe reversion while  cadre  officers
\njunior to him continued in the senior scale amounted to\t not
\nonly  reduction in rank but also withholding  of  promotion.
\nThis  is all that P. C. Wadhwa’s case(1) decided.  The\tfact
\nin the present case are entirely different.  The  petitioner
\nwas  not suitable to fill the vacancies in the senior  posts
\nand non-cadre officers were appointed to fill the  vacancies
\nunder  r. 9 of the Cadre Rules.\t No cadre officer junior  to
\nthe  petitioner\t was promoted to the cadre post\t before\t his
\npromotion  on November 17, 1956.  Nor was he reverted  after
\nhis  promotion,\t while officers junior to him  continued  to
\nhold  senior posts.  The petitioner was not reduced in\trank
\nnor  was his promotion withheld.  He had no right to fill  a
\nvacancy in the senior posts or to draw salary in the  senior
\nscale between April 2, 1952 and November 17, 1956.
\nThere is no merit in the contention that 75 per cent of\t the
\ntotal  number  of senior posts is reserved  exclusively\t for
\ndirect\trecruits.  Under r. 9(1) of the\t Recruitment  Rules,
\nthe  number of persons recruited to senior posts under r.  8
\nof the Recruitment Rules by promotion or by selection cannot
\nexceed 25 per cent of the total number of senior posts.\t The
\nremaining  75 per cent of the senior posts may be filled  by
\nother  recruits.   Special  recruits  under  r.\t 4  of\t the
\nRecruitment  Rules  are appointed against the  75  per\tcent
\nquota.\t Their appointments are not counted against  the  25
\nper cent quota reserved for persons recruitment under r.8.
\n(1)  [1964] 4 S.C.R. 598.\n<\/p>\n
621<\/span><\/p>\n
Rule  9(3)(b)(iv)  now expressly provides what\twas  already
\nimplicit in r. 9(1).\n<\/p>\n
Paragraph  4(iv) of the I.A.S. !Extension to  States  Scheme
\nprovided  that the posts held by officers included in  Lists
\n11  and III would be excluded from the cadre for the  period
\nthey  were  held by those officers and would revert  to\t the
\ncadre  as  and\twhen they ceased to  be\t required  for\tthat
\npurpose.   The posts held by the officers in List  III\twere
\nexcluded  from\tthe cadre until they retired  and  were\t not
\ncounted\t against the 25 per cent quota.\t The posts  held  by
\nthe  officers in List 11 pending absorption in\tthe  service
\nwere  excluded\tfrom the cadre.\t They were absorbed  in\t the
\nservice\t as  and when they were found fit.  Rule 9  (3)\t (b)\n<\/p>\n
(iii)  provides that in computing the 25 per cent quota\t the
\nappointments of officers from List 11 will be excluded.
\nThere  were  vacancies in the 25 per cent quota\t which\twere
\nfilled\tup  by promotion of respondents Nos. 14, 15  and  16
\nfrom  the Madhya Bharat State Service.\tRespondents Nos.  4,
\n6, 11, 12, 13, 17 and 18 were from the former Madhya Pradesh
\nState  Service.\t  Some of them were promoted to\t the  Indian
\nAdministrative Service against the 25 per cent quota in\t the
\nState  cadres  before  the  integration\t of  the  cadres  on
\nNovember  1,  1956.   No  appointments\twere  made   between
\nNovember  1, 1956 and November 17, 1956 when the  petitioner
\nwas   appointed\t to  officiate\tin  a  senior\tpost   Other
\nrespondents were appointed after November 17, 1956.  None of
\nthe appointments is open to any challenge. It is  surprising
\nthat  the  petitioner seeks to\tchallenge  the\tappointments
\nafter  a long lapse of time.  He has not given any  adequate
\nexplanation as to the delay in filing the writ petition.
\nThe petitioner next challenges the seniority assigned to the
\nrespondents.  In the gradation list, all the respondents are
\nshown  as senior to him Respondents Nos. 10, 11, 12  and  13
\nare  special  recruits and their seniority  has\t been  fixed
\nunder  Regulation 3(3) of the I.A.S. (Seniority\t of  Special
\nRecruits)  Regulation, 1960 read with r. 3 ( 3 ) (b) of\t the
\nRegulation   of\t Seniority  Rules,  1  9  5  4.\t The   other
\nrespondents are promotees and their seniority has been fixed
\nunder r. 3 (3) (b) of the Regulation of Seniority Rules\t and
\nthe proviso thereto.\n<\/p>\n
The  petitioner\t challenges  the vires of  r.  4(3)  of\t the
\nRecruitment Rules under which the Central Government  framed
\nthe Special Recruitment Regulations.  The Recruitment  Rules
\nwere  made under s. 3 of the All India Services\t Act,  1951.
\nIn D. S. Garewal v. The State of Punjab and Another<\/a>(1), this
\nCourt held that s. 3 was not bad on the ground of  excessive
\ndelegation  of\tlegislative power.  The\t petitioner  submits
\nthat r. 4(3) of the
\n(1)  [1959] Sup, 1 S.C.R. 72
\n622<\/span>
\nRecruitment  Rules  is\tbad  on\t the  ground  of   excessive
\ndelegation,   of  legislative  power.\tAssuming  that\t the
\ndoctrine  of  excessive\t delegation  of\t legislative   power
\napplies to rules, we think that r. 4(3) does not suffer from
\nthe  vice of excessive delegation.  Rule  4(3)\t.authorities
\nthe  Central  Government  to make  regulations\tfor  special
\nrecruitment.\tIn  making  the\t regulations,  the   Central
\nGovernment is to be guided by the exigencies of the  service
\nand the advice of the State Governments and the Union Public
\nService\t Commission.  These authorities are the best  judges
\nof the appropriate regulations to be made in the matter.  In
\nthe light of their expert knowledge they can adapt for\tthis
\npurpose\t the  existing\tregulations  for  other\t methods  of
\nrecruitment  with  suitable  modifications  or\tmake   other
\nappropriate  regulations having regard to the exigencies  of
\nthe service.  As a matter, of fact, the Special\t Recruitment
\nRegulations  1960 framed under r. 4(3) have adapted for\t the
\npurposes   of  special\trecriutment  the   regulations\t for
\nrecruitment   by  competitive  examination,  promotion\t and
\nselection with appropriate modifications,
\nThe  petitioner\t next  contends that r. 3  (3)\t(b)  of\t the
\nRegulation  of Seniority Rules makes  unjust  discrimination
\nbetween\t a  promotee and a direct recruit in the  matter  of
\nseniority by arbitrarily assigning a lower year of allotment
\nto  a  promotee and is violative of Arts. 14 and 16  of\t the
\nconstitution.\tThis  contention is devoid  of\tmerit.\t The
\nseniority of direct recruits inter se and promotees inter se
\nis  fixed by r. 4. The object of r. 3 (3) (b) is to fix\t the
\nseniority of the promotees in relation to direct  -recruits.
\nThe  promotees\tobtain promotion after long service  in\t the
\nState  Civil  Services.\t  From\tthe point  of  view  of\t the
\npromotee,  his seniority should be counted from the date  of
\nhis joining the State Civil Service.  From the point of view
\nof  the direct recruit the seniority of the promotee  should
\nbe  counted from the date of his appointment to\t the  Indian
\nAdministrative Service.\t Rule, 3 (3) (b) attempts to  strike
\na just balance between the conflicting claims.\tIt gives the
\npromotee  the  year of allotment of the\t junior-most  direct
\nrecruit\t officiating continuously in a senior  post  earlier
\nthan  the  date of commencement of such officiation  by\t the
\npromotee.  If no direct recruit was officiating continuously
\nin  a senior post on an earlier date. the seniority  of\t the
\npromotee is determined ad hoc.\tIn our opinion, the rule  is
\nnot  arbitrary\tor discriminatory and is  not  violative  of
\nArts. 14 and 16 of the Constitution.\n<\/p>\n
The  petitioner next challenges the validity of\t ]Regulation
\n3(3) of the Special Recruitment Seniority Regulations,\t1960
\non  the\t ground\t that  it offends Arts. 14  and\t 16  of\t the
\nConstitution.\tAccording  to the petitioner,  the  relevant
\nrules  and  regulations\t have set  up  an  arbitrary  double
\nstandard for a special recruit enlisted by promotion because
\nRegulation 3(3) of the Special Recruit-\n<\/p>\n
623<\/span><\/p>\n
ment  Seniority\t Regulations read with r. 3 (3) (b)  of\t the
\nRegulation  of Seniority Rules treats him as a promotee\t for
\nthe  purpose  of seniority while r. 9 (3) (b)  (iv)  of\t the
\nRecruitment  Rules  treats him as a direct recruit  for\t the
\npurpose\t of  recruitment.   There is no\t substance  in\tthis
\ncontention.   Special recruits form a distinct class.\tThey
\nare  neither direct recruits nor promotees.  Rule 9  of\t the
\nRecruitment  Rules does not treat them as  direct  recruits.
\nRegulation   3\t(3)  of\t the  Special\tRecruits   Seniority
\nRegulations  properly  adopts  the  formula  applicable\t  to
\npromotees  for\tfixing\tthe seniority  of  special  recruits
\nenlisted  by promotion. so that in the matter  of  seniority
\nall  officers  recruited from the State\t Civil\tService\t are
\nplaced on the same footing.  The regulation is not arbitrary
\nnor violative of Arts. 14 and 16 of the Constitution.
\nThe  seniority\tof the respondents was fixed  in  accordance
\nwith  Regulation 3 (3) of the Special Recruitment  Seniority
\nRegulations,  r.  3 (3) (b) of the Regulation  of  Seniority
\nRules  and  the\t proviso thereto, and is  not  open  to\t any
\nchallenge.\n<\/p>\n
The  writ petition is dismissed.  There will be no order  as
\nto costs.\n<\/p>\n
Y.P.\t\t\t\t\t\t    Petition\ndismissed.\n624<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Anand Parkash Saksena vs Union Of India & Ors on 14 December, 1967 Equivalent citations: 1968 AIR 754, 1968 SCR (2) 311 Author: R Bachawat Bench: Wanchoo, K.N. (Cj), Bachawat, R.S., Shelat, J.M., Mitter, G.K., Vaidyialingam, C.A. PETITIONER: ANAND PARKASH SAKSENA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-219979","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAnand Parkash Saksena vs Union Of India & Ors on 14 December, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anand-parkash-saksena-vs-union-of-india-ors-on-14-december-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anand Parkash Saksena vs Union Of India & Ors on 14 December, 1967 - 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