Ex-Capt. Ashok Kumar Sawhney v. Union of India & Others

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 1337 of 1979. (Under article 32 of the Constitution of India). ' 3 V.M. Tarkunde, P.H. Parekh and Hemani Sharma for the • D Petitioner. Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents. The Order of the Court was delivered by KosHAL, J. The short question which falls for determination in this petition under Art. 32 of the Constitution of India praying for the issuance of appropriate writs quashing the letter dated 16th of March, 1979, by which the representation made by the petitioner against the seniority assigned to him in the cadre of Income-tax Officers, Class-I was rejected and he was informed that the seniority list forming an appendix to Annexure 'l' had been correctly framed in accordance with the rules then in force. 2.

The answer to the question posed by the petition· has to be answered with reference to Rules 4, 6 and 8 of the Released ,Emergency Commissioned Officers & Short Service Commissioned Officers (Reser vat.ion of Vacancies) Rules, 19 71 (hereinafter called the Rules). The relevant part of Rule 4(1) reads thus : 4(1) Twenty percent of the 'vacancies in the Indian Foreign . Service, and 25 percent of the vacancies in all the Central Civil Services and posts, Class I, to which these rules apply ................ .. 40 1198~1 j s.c.lt. shall be reserved.for being fill~d by the Btnergency Commissioned. Officers and. the Short ,Service .. Commissioned Officeri; .of the Armed. ForceH>fthe Union.who wcrc~omUJissioned.,after.the 1st November, 1962 'but before the 10th January, 1968', and who- (i) ,,,,, ......................................... ..

(ii) in the case·of.Sllort Service Commissioned Officers ue . released ·on·the expiry•of•tlre·tenure of'th'eir service; or (iii) .... : ............................................. . Rule '6 in so far as·it is relevant for our purpose provides : ~I) ................................................. . (2) Seniority inter se of candidates who are appointed against the· vacancies. rflllt'ved' uadc!l' sub-l'ule (I) of rule 4 and allotted to a particular year shall be determined accordillg to the· merit list· prepared by tl:le Commission on the basis of the results of their perfor• mance at the examination or test or interview. (3)

All candidates who have been appointed . against: tho· vacancies reserved under sub-rule (I) of rule 4 shall rank below tho<1:andidates who Wire· appointed1again1t unreserved vacancies in the services of posts through the competitive examination· or test or interview conducted by the CommiSsh>n corresponding to the year to which the former candidates are-allotted. It is not disputed thaMhe·petitioner·i~·an· officer· who is· entitl•. ed to the benefit of' reservation under·the11bove abstracted portion of Rule 4(1) ·and to have his seniority· accordance with sub-rule (3) of Rule 6. As we read the sub·role last mentioned we-do not· find it to be ambiguous in any manner whatsoever. It lays down in clear terms that the officers appointed against vacancies reserved under sub-rule (I) of Rule 4 shall rank.below candidates who were appointed against unreserved vacancies in the services concerned. through a competitive examination,.etc. Respondents Nos. 2 to 14 who have been placed in the impugned seniority list above the petitioner were appointed to the .cadre of Income-tax Officers,.

Class I through a competitive .e;tamination or test aunvisaged. by sub-rule(3) of Rule 6. Now if they were. appointed,ag~inst unreserved. vacaD:: ci~s, they are eniitled to rank above the petitioner but not otherwise. A.K. SAWHNEY v. UNION (Koshal, J.) 41 It is conceded before us that respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Scheduled Tribes. Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies. Mr. Abdul Khader appearing for the Union of India has contested the interpretation just above placed by us on sub-rule (3) of Rule 6. According to him that interpretation makes the sub-rule retrospective in operation, which it is not. We agree that the sub·rule is intended to be prospective only and that the above interpretation would be operative only after the date on which the sub-rule was promulgated and not before that.

But then that means that every seniority list prepared after the date of the promulgation of the sub-rule would be governed by it. Similarly, every promotion made and every question relating to seniority cropping up after the date of the promulgation of the sub-rule (which is 28th August, 1971) shall be determined according to that sub-rule. No question of retrospectivity of the sub-rule is thus involved. Of course, the interse seniority of officers of the cadre prevailing upto 28th August, 1971 bad to be determined under the rules as they existed before that date and any promotions made earlier to that date would continue to be good if made in accordance with those rules. However, the position changed with the promulgation of the Rules and any promotion made thereafter has to conform to them. 4. Faced with the above situation Mr. Abdul Khader argued that the word, 'unreserved' in sub.rule (3) of Rule 6 would embrace the vacancies reserved· for candidates belonging to the Scheduled Castes and Scheduled Tribes who bad joined the cadre through open competition, etc., because the sub-rule meant to take within its ambit all such persons who had been recruited in that manner.

The logic of the argument is not clear to us because it makes the whole subrule meaningless. If the argument were to be accepted, the use of the word 'unreserved' would be wholli uncalled for and· we just cannot bold that the word is redundant, forms part as it does of subordinate legislation. The word 'unreserved' can obviously not be .equated with its antonym, that is, 'reserved', and has to be applied only to vacancies which do not fall within the reserved categories. 5. Mr. Abdul Kbader took another point and that was to the effect that the rules of the servic~ ill ~uestion haq been am~nd~q ( 1982] 3 S.C.R. · earlier to 1971 so as to place candidates covered by Rule 4(1) below those who had been appointed to reserved vacancies through a competitive examination. That may well have been so but then that makes no difference to the interpretation which is given above to sub-rule (3) of Rule 6.

Rule 8 of the Rules declares in no uncertain terms that all rules regulating the recruitment of persons to Central Civil Services and Posts, Class I, to which the Rules apply, shall be deemed to have been amended io the extent provided for in the Rules. If the rules regulating the seniority of the petitioner and respondents Nos. 2 to 14 were so amended earlier to 1971 as' to assign to the petitioner seniority below respondents Nos. 2 to 14, the situation would be wholly irrelevant to the present dispute because after the amendment brought about Rule 8 of the Rules, the members of the service to which the contested parties belong, have to be governed by the amendment of which sub-rule (3) of Rule 6 forms a part. This is the inescapable consequence flowing :rrom Rule 8 of · the Rules. 6. We may take note here of the only other argument raised by Mr. Abdul Khader and that is that Rule 8 regulates only the recruitment of persons to Central Civil Services and Posts, Class I, and not to their conditions of service.

We do not find any substance in this argument either.. The word 'recruitment' is comprehensive enough to embrace the content of all the mies preceding Rule 8 including the fitment of candidates recruited to the service vis-a.vis each other. 7. In the result, we accept the petition, quash the seniority list abovementioned as well as the letter by which the representation there against made by the petitioner was rejected and direct respondent No. l to re-frame the seniority list assigning the petitioner seniority in accordance with law as explained above. There will be no order as to costs. N. K. A. .Petition allowed. i