Md. Raisul Islam & Ors vs Gokul Mohan Hazarika & Ors

and ACS Class-II, the Assam Public Service 2

Commission, hereinafter referred to as `the ASPC',

published an advertisement on 22nd May, 1984, for

the aforesaid purpose in terms of Rule 4 of the

Assam Civil Services (Class-I) Rules, 1960.

Subsequently, the Government of Assam informed the

APSC on 24th November, 1984, that a decision had

been taken to relax the upper age limit by two

years. Accordingly, a revised advertisement was

published by APSC on 28th November, 1984,

incorporating the decision to relax the upper age

limit by two years. Pursuant to the said

advertisement, a written test was conducted by the

APSC, as required under the aforesaid Rules,

hereinafter referred to as `the 1960 Rules',

between 5th June, 1984, to 1st August, 1985, and the

results of the said written examination were

declared on 22nd February, 1986. Vive voce test was

thereafter conducted by the APSC from 25th April,

1986, to 30th May, 1986, in respect of those 3

candidates who had qualified in the written

examination. Thereafter, the APSC sent its list of

recommended candidates to the Government on 27th

June, 1986, for appointment to ACS Class-I and ACS

Class-II category officers.

2. On 21st July, 1986, vide Notification of even

date, the Government of Assam amended the proviso

to Rule 4(1) and Rule 4(1)(b) of the 1960 Rules

whereby the number of persons to be promoted from

ACS Class-II to ACS Class I was left to be

determined by the Governor and the earlier quota of

50 per cent for promotion was discontinued.

3. At this stage, reference may be made to Rule 4

of the 1960 Rules, as it stood prior to the

amendment of 21st July, 1986, namely,

"Rule 4(1). Recruitment to the service after the commencement of these Rules, shall be by the following methods, namely: 4

(a) by competitive examination conducted by Commission;

(b) by promotion of confirmed members of the ACS (Class-II) who have passed the prescribed departmental examination and successfully completed the prescribed training under Sub-

Rule(3)of Rule 14 of ACS (Class-II) Rules, 1962; and

(c) by selection, in special cases from among persons, other than members of the Assam Civil Service (Class-II) service in connection with the affairs of the Government;

Provided that the number of persons recruited under Clause (b) shall be 50 per cent of the total number of vacancies to be filled in a year and the persons recruited under Clause (c) shall not in any year exceed two; provided further that the persons recruited under Clause (c) shall not at any time exceed 5 per cent of the total strength of the cadre".

4. As will be apparent from the above, under the

unamended Rules, the number of persons to be

recruited by way of promotion would be 50 per cent

of the total number of vacancies to be filled in a

year and the number of persons to be selected under 5

clause (c) in said cases was not to exceed 5 per

cent of the total strength of the cadre at any

time.

5. While the aforesaid process of filling up the

vacancies was being undertaken, the State

Government as indicated hereinabove, amended some

of the provisions of the 1960 Rules by the Assam

Civil Service (Class-I) (Amendment) Rules, 1986,

hereinafter referred to as `the 1986 Amendment

Rules', which were directed to come into force at

once and were, therefore, given prospective

operation. The amendment with which we are directly

concerned in this case is Rule 2 of the Amendment

Rules, which reads as follows :-

"2. In the Principal Rules, in Rule 4 -

(a) for clause (b) of sub-rule (1), the following shall be substituted, namely:-

"(b) by promotion from amongst the ACS (Class-II) officers who have 6

completed 5 years of continuous service in ACS (Class-II) on the first day of January of the year in which recruitment is made"

(b) for the proviso to sub-rule (1), the following shall be substituted, namely:-

"provided that the number of persons recruited under Clause (b) in any calendar year shall be such as may be determined by the Governor. Provided further that the persons recruited under Clause (c) shall not in any year exceed two and shall not, at any time exceed 5 per cent of the total strength of the cadre."

6. The amended provisions of Rule 4, do away with

the quota of 50 per cent reservation for promotees

and the number of persons to be recruited in such

manner in any calendar year would after the

amendment be such as might be determined by the

Governor. In other words, the fixed quota of fifty

per cent for appointment by way of promotion was

replaced by a discretion given to the Governor to 7

indicate the number of persons to be recruited by

way of promotion.

7. Pursuant to the aforesaid selection process,

129 ACS Class-II Officers, including the

petitioners, were regularly promoted as ACS Class-I

Officers on 11th September, 1986. Thereafter, on

22nd October, 1986, 45 ACS Class-I Officers,

including the Respondents, were appointed by way of

direct recruitment on the basis of the

recommendation made by the APSC. On 16th December,

1989, as a matter of policy, the State Government

merged the ACS Class-II Officers with ACS Class-I

Officers in order to eliminate the ACS Class-II

category. Pursuant thereto, on 1st January, 1993,

a draft gradation list of ACS Class-I Officers was

published by the State Government inviting

objections thereto. In the said list, all 129

Officers promoted on 11th September, 1986, were

shown as senior to the 45 ACS Class-I Officers, who 8

had been appointed by way of direct recruitment on

various dates in the month of October, 1986.

8. Aggrieved by the above, the Respondent Nos.1 to

8 herein filed a Writ Petition challenging the

draft seniority list dated 1st January, 1993, and

the amendments effected to Rule 4 of the 1960 Rules

on 21st July, 1986. It may not be out of place to

take note at this stage of the fact that the

appointments of the petitioners and other similarly

situated promotees made vide notification dated 11th

September, 1986, were not challenged in the Writ

Petition, nor was the notice of the Writ Petition

served on them, although, they were made parties to

the proceedings. During the pendency of the Writ

Petition, the State Government published the final

seniority list of ACS Class-I Officers in which all

the 129 promotees were shown to be senior to the 45

direct recruits. It is the petitioners' case that 9

the said seniority list was never challenged and

had attained finality long ago.

9. On 26th June, 2003, the learned Single Judge

of the High Court dismissed the Writ Petition

holding that although the process of selection had

been initiated long before the amendment of 1986,

the Government had decided not to make any

appointments till the Rules were amended. The

Respondent Nos.1 to 8 thereupon filed a Writ Appeal

before the Division Bench of the High Court which

was allowed on 26th August, 2006, upon the finding

that the seniority of direct recruits and promotees

would be governed by the unamended Rules as the

selection process was initiated prior to the 1986

amendments. The State Government was, accordingly,

directed to fix the seniority of the promotees and

direct recruits by applying the quota rule and to

fix the seniority of all 45 direct recruits of 1986

just below the 45 promotees, who had been promoted 10

to ACS Class-I service. It is the petitioners'

case that they had no knowledge about the Writ

Appeal as they were not served with notice thereof.

Review Petitions Nos.92 and 93 of 2006 were filed

on 9th November, 2006, by 12 of the

promotees/petitioners herein on the ground that

they had not been served with notice of the Writ

Appeal. Thereupon, the Division Bench on 13th

September, 2006, issued notice on the Review

Petitions and stayed the operation of the judgment

and order passed on 26th August, 2006. Subsequently,

on 25th September, 2006, the Division Bench modified

its earlier order dated 13th September, 2006 and

directed that posting of officers, if any, pursuant

to the interim order, would be only with the leave

of the Court.

10. On 13th November, 2006, the State Government

filed its counter affidavit in the matter and on

being satisfied that notice of the Writ Appeal had 11

not been served on the Review Petitioners, the

Division Bench permitted them to file their

affidavit in the Writ Appeal and the same was re-

heard along with the Review Petitions on merit.

It is on a re-hearing of the Writ Appeal and the

Review Petitions that the order impugned in Special

Leave Petition (Civil) No.19188 of 2007 came to be

passed on 23rd May, 2007.

11. In its counter affidavit filed in the Writ

Appeal, the State Government opposed the Writ

Appeal contending that seniority, upon merger of

the ACS Class-I and ACS Class-II Officers, had been

rightly fixed by the State. After considering the

submissions made on behalf of the parties, the

Division Bench, while allowing the Writ Appeal,

directed the authorities to ascertain the vacancies

available in the year 1986 for recruitment from

each source in terms of the quota fixed by Rule 4

of the 1960 Rules and to recast their seniority by 12

rotating the vacancies following the quota and rota

rules. The said order of the Division Bench being

impugned in this Petition, this Court issued notice

to the parties on 12th November, 2007, and directed

status-quo to be maintained.

12. Appearing in support of the Special Leave

Petition, Mr. Vijay Hansaria, learned Senior

counsel, firstly referred to Rule 19 of the 1960

Rules dealing with seniority, which reads as

follows :

"Seniority: (1) The seniority of members of the service shall be determined according to the order of merit in the lists prepared under sub-rule (5) of Rule 5 or approved under Rule 8, if the members join their appointments within 15 days of the receipt of the order of appointment.

Provided that in case a member is prevented from joining within the said period of 15 days by circumstances of a public nature or for reasons beyond his control, the Governor may extend it for a further period of 15 days. If the period is not so extended and the member of the service joins within the period extended 13

under sub-rule (2) of Rule 15, his seniority shall be determined in accordance with the date of joining.

Provided further that the members of the service recruited in a year under clause

(b) and (c) of Rule 4 shall be senior to members recruited in the same year and in the same batch under clause (a) of Rule

4."

13. What is important for our purpose is the

second proviso which indicates that the number of

promotees in a year under Clauses (b) and (c) of

Rule 4 would be senior to members recruited by

direct recruitment in the same year and in the same

batch under Clause (a) of Rule 4. The language of

the second proviso to Rule 19 is clear and

unambiguous that in a year candidates promoted to

the higher post under Rule 4 would be senior to

candidates recruited in the same year and in the

same batch under Clause (a) of Rule 4 of the 1960

Rules.

14

14. Mr. Hansaria then drew our attention to Rule

26, which provides that "the seniority of members

of the service promoted to the senior grade time

scale, shall be in the order in which their names

are arranged by the Selection Board under Sub-Rule

(2) of Rule 25 for the purpose of promotion to that

grade." Learned counsel also referred to Rule 27,

wherein the Governor of the State was also

empowered to dispense with or relax any Rule on

being satisfied that the operation of any of the

Rules caused undue hardship in any particular case.

Mr. Hansaria submitted that after the Amendment Act

was enacted on 21st July, 1986, whereby Rule 4 was

also amended, the Governor was given the power to

determine the number of ACS Class-II officers to be

promoted as a result whereof, the quota system in

relation to recruitment of ACS Class-I Officers was

discontinued. According to Mr. Hansaria, the quota 15

system had broken down, necessitating the

amendment.

15. Mr. Hansaria contended that the direct recruits

had been appointed long after the appointment by

promotion of the Petitioners under the Rules and

could not, therefore, be given seniority over the

promotees. Mr. Hansaria submitted that in this

petition what was of utmost importance was not the

question of recruitment, but how seniority was to

be determined inter se with those who had been

promoted earlier. The question posed is: Would the

rules relating to seniority which were applicable

at the time of recruitment also determine seniority

even if the Rules were subsequently altered?

16. Mr. Hansaria submitted that since the quota

and rota rule had not been followed over the years,

the same was discontinued by virtue of the

amendments to the 1960 Rules which became effective 16

from 21st July, 1986. Although, the said amendments

were challenged by the respondents, such challenge

was later given up. Despite the above, the High

Court quite erroneously relied on the unamended

Rules in arriving at a final decision in the

appeal. Mr. Hansaria urged that when the Rules

relating to quota had been discontinued by the 1986

Amendment, the High Court erred in not following

the Amended Rules which came into effect on 21st

July, 1986, after the recruitment of both the

petitioners as well as the respondents herein. Mr.

Hansaria contended that even if the quota Rule is

held to be applicable, the same had broken down on

account of not having been followed for a long

period of time, seniority had to be fixed by

applying the amended Rules.

17. Mr. Hansaria then urged that it was a well-

settled principle that direct recruits cannot claim

appointment from the date on which the vacancy in 17

the quota for direct recruitment occurred before

their selection, which principle had been

incorporated in the proviso to Rule 4(b) of the

1960 Rules, as amended.

18. In this regard, Mr. Hansaria referred to the

decision of this Court in Suraj Parkash Gupta &

Ors. vs. State of J & K and Ors. [(2000) 7 SCC

561], wherein the very same question fell for

consideration and this Court observed that in

service jurisprudence, a direct recruit can claim

seniority only from the date of his regular

appointment and not from the date when he was not

even born in the service. Reference was also made

to the decision of this Court in State of

Uttaranchal & Anr. vs. Dinesh Kumar Sharma [(2007)

1 SCC 683], where the earlier decision in Suraj

Parkash Gupta's case (supra) was reiterated and it

was re-emphasized that a person appointed on

promotion cannot get seniority of any earlier year 18

but shall get the seniority of the year in which

his/her appointment is made. Several decisions

were also cited by Mr. Hansaria on the same lines,

to which reference will be made, if necessary.

19. Mr. Hansaria contended that the High Court had

committed an error in relying upon the unamended

provisions of Rule 4 of the 1960 Rules, instead of

relying upon the amended Rules which were relevant

to the case of the respondents since the quota

Rules had broken down when the process of recording

seniority had been commenced.

20. Mr. Parthiv Goswami, learned Advocate,

representing the Respondent Nos.1 to 8 pointed out

that Rule 4(1) provided the method of recruitment

to the service and the proviso to the said Rule

provided that 50% of the total vacancies in a given

year was to be filled up by promotion of confirmed

members of the Assam Civil Service (Class-II). 19

Furthermore, Rule 19(1) provided that the promotees

would be senior to direct recruits in case of

appointment in the same year and in the same batch.

Mr. Goswami contended that the State Government on

21st July, 1986, amended Rule 4 and the Governor was

authorized thereunder to determine the number of

promotees to be accommodated, but as rightly

pointed out by the Division Bench, the amended

Rules would not apply to the direct recruits whose

selection process had commenced under the unamended

Rules.

21. Mr. Goswami submitted that promotees appointed

in excess of the quota reserved for them could only

be described as ad hoc and seniority could not be

given to such promotees on the basis of such ad hoc

promotions. In support of his submissions Mr.

Goswami referred to the decision of this Court in

Uttaranchal Forest Rangers' Assn. (Direct Recruit)

vs. State of U.P. [(2006) 10 SCC 346], wherein the 20

said proposition was approved and it was further

held that promotees who were appointed in 1991

could not claim seniority over direct recruits who

were substantively appointed at a prior point of

time in 1990.

22. Reference was also made to the decision of

this Court in N.T. Devin Katti vs. Karnataka Public

Service Commission [(1990) 3 SCC 157], wherein it

was held that appointment made in terms of an

advertisement published prior to amendments

effected to the Rule or Order would normally not be

affected by the amendment. In other words, where

the selection process is initiated by issuing an

advertisement inviting applications, selection

normally should be regulated by the Rule or Order

then prevailing. Several other decisions were also

referred to where the same principles have been

explained. Mr. Goswami submitted that the process

of selection in the instant case had commenced 21

before the amendments came into force and since it

was held that only prospective operation could be

given to the amended Rules, the process of

selection started under the unamended Rules would

have to be continued and completed thereunder.

Mr. Goswami submitted that the submissions made on

behalf of the petitioners that the selection would

be in accordance with the amended Rules was

contrary to the law as established and was,

therefore, liable to be rejected.

23. We have carefully considered the submissions

made on behalf of the respective parties and the

decisions cited by them. The point at issue in

this SLP is confined to the question as to whether

the 1960 Rules as amended would govern the

seniority of the persons recruited in the process

of selection commenced earlier to the amendment. It

is not disputed that an advertisement was published

on 22nd May, 1984, for filling up 30 posts in each 22

category of ACS Class-I and ACS Class-II Officers

in terms of unamended Rule 4 of the 1960 Rules and

that a written test was conducted by the APSC under

the said Rules between 5th June, 1984 and 1st August,

1985 and the result of the said written examination

was declared on 22nd February, 1986. Viva-voce test

was conducted by the APSC from 25th April, 1986, to

30th May, 1986, in respect of those candidates who

had qualified in the written examination. A list of

recommended candidates was thereafter submitted by

the APSC to the Government on 22nd June, 1986. It

is also not disputed that soon thereafter on 21st

July, 1986, the proviso to Rule 4(1) and Rule

4(1)(b) of the 1960 Rules were amended whereby the

quota system was sought to be discarded and

discretion was given to the Governor to determine

the number of appointments to be made by way of

promotion in a given case.

23

24. It is evident from the chronological list of

events that the process of selection for filling up

the 30 posts in each category of ACS Class-I and

ACS Class-II Officers commenced with the

publication of the advertisement inviting

applications which was published on 22nd May, 1984.

Pursuant thereto, written examinations were also

held and the result of the written examinations was

declared on 22nd February, 1986, and after

completion of the viva-voce test, a list of

recommended candidates was submitted by the APSC to

the Government on 22nd June, 1986. The amendment to

Rule 4 came subsequently on 21st July, 1986. The

submission advanced on behalf of the Respondent

Nos.1 to 8 herein is that once the process had

commenced under the unamended Rules, appointments

would have also to be completed under the said

Rules, even though the Rules were amended in the

meantime. The Division Bench of the High Court, 24

while re-hearing the Writ Appeal and the Review

Petitions, reiterated the views expressed earlier

on 26th August, 2006, holding that the seniority of

direct recruits and promotees would be governed by

the unamended Rules as the selection process was

initiated prior to the 1986 amendments.

Consequently, the Division Bench also held that the

seniority between the promotees and direct recruits

was to be determined on the basis of the quota

fixed for recruitment from each source under Rule 4

of the 1960 Rules on the basis of the vacancies

available in the calendar year, by applying quota

and rota selectees to the extent of the vacancies

in their quota as envisaged in the proviso to Rule

4(1) of the Rules as they stood prior to the 1986

amendments. The Division Bench, accordingly,

amended its earlier judgment dated 24th August, 2006

and set aside the provisional seniority list of ACS

Class-I Officers with the aforesaid modification 25

and directed the authorities to recast the

seniority in accordance with the said directions.

While arriving at the aforesaid decision, the

Division Bench had occasion to refer to the

decision of this Court in Dr. K. Ramulu & Anr. vs.

Dr. S. Suryaprakash Rao & Ors. [(1997) 3 SCC 59],

wherein the question which fell for consideration

was whether the Government was entitled to take a

decision not to fill up existing vacancies on the

relevant date unless the process of amendment was

completed. This Court, after taking into

consideration Rule 4 of the A.P. Subordinate

Service Rules, held that the object of the said

Rule was that all eligible candidates should be

considered in accordance with the Rules. This

Court held that the Government was entitled to take

a conscious decision not to fill up any of the

vacancies before the proposed amendment to the

Rules was effected.

26

25. While at first glance the decision in K.

Ramulu's case (supra) may appear to be at par with

the facts of the instant case, there is yet a

distinction which cannot be ignored. While in the

present case a process of selection had been set in

motion under the existing Rules and a list of

selected candidates had also been recommended by

the APSC, in K. Ramulu's case (supra) the

Government had merely taken a decision not to fill

up the vacancies until the amended Rules came into

force. In K. Ramulu's case (supra) no process had

been initiated for the purpose of filling up any of

the vacancies. In such circumstances, where no

candidate had either been invited or interviewed or

selected for appointment, as has been done in the

instant case, this Court rightly held that the

Government was competent to take a decision not to

fill up the vacancies.

27

26. There can be no dispute that as a matter of

policy the Government may take a conscious decision

not to fill up vacancies for justifiable reasons,

but at the same time, having started a process of

selection under the unamended Rules, it cannot take

the stand that it still was entitled not to make

appointments of persons from amongst the candidates

selected in terms of the process initiated under

the old Rules. In fact, in the instant case, the

recommendation made by the APSC was submitted to

the Government on 22nd June, 1986, before the

amended Rules came into operation on 21st July, 1986

whereby the quota system was discarded. In such a

situation, in our view, the decision in K. Ramulu's

case (supra) cannot be applied to the facts of this

case.

27. We are unable to agree with Mr. Hansaria that

the High Court had committed an error in relying on

the unamended Rules since the law has been well 28

settled that the process of selection commenced on

the basis of the Rules then in existence would

continue under the said Rules, even though the

Rules may have been amended in the meantime.

Accordingly, the seniority of members of the

service would, no doubt, be governed under Rule 19,

but the selection process has to be completed under

Rule 4 in order to attract the provisions of Rule

19. The vacancies for which the advertisement had

been published in 1984 were directed to be filled

up by the High Court on the basis of the unamended

Rule 4 which provided for quota between promotees

and direct recruits and, accordingly, placed 45 of

the direct recruits immediately below the first 45

promotees out of the list of 129 promotees in

keeping with the said quota system for the year

1986.

28. We agree with the view taken by the High Court

which has been reiterated by Mr. Goswami in keeping 29

with the well-established principle that once a

process of selection is started on the basis of the

existing Rules of recruitment, the said Rules will

continue to govern the selection process,

notwithstanding any amendment which may have been

effected to the said Rules in the meantime.

29. The decision of the High Court does not,

therefore, warrant any interference and the Special

Leave Petition is, accordingly, dismissed, but,

without any order as to costs.

________________J.

(ALTAMAS KABIR)

________________J.

(CYRIAC JOSEPH) New Delhi, Dated: July 06, 2010.

30

ITEM No.1-A Court No.2 SECTION II-A (for judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

SLP(C) NO. 19188/2007

MD. RAISUL ISLAM & ORS. PETITIONER (s)

VERSUS

GOKUL MOHAN HAZARIKA & ORS. Respondent (s)

Date : 06/07/2010 This Petition was called on for judgment today.

For Appellant (s) Mr. Shankar Divate,Adv.

For Respondent(s) Mr. Rajiv Mehta,Adv. For M/s Corporate Law Group,Advs.

Hon'ble Mr. Justice Altamas Kabir

pronounced the Judgment of the Bench

comprising His Lordship, and Hon'ble Mr.

Justice Cyriac Joseph.

The Special Leave Petition is

dismissed in terms of the signed judgment

placed on the file.

(Ganga Thakur) (Juginder Kaur) P.S. to Registrar Court Master

(Signed Reportable judgment is placed on the file.) 31