UNION OF INDIA ETC. v. G.K. SANGAMESHWAR AND ORS. ETC.

The Judgment of the Court was delivered by -' S.C. AGRAWAL, J. There is some delay in filing of the special leave G petitions directed against the orders of the Central Administrative Tribunal (hereinafter referred to as 'the Tribunal') dated July 24, 1991 (in O.A. 636 of 1989) and October 31, 1991 (in R.A. 72 of 1991). The said delay is condoned. Leave is granted in all the special leave petitions.

The appeals relate to the frxation of seniority in the Indian Ad- H

8 SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A ministrative Service (hereinafter referred to as 'the Service' of three of- ficers, namely, S/Shri G.K. Sangameshwar, K.A. Belliappa and C. Chikkan- na, who were non-State Civil Service Officers in the State of Karnataka and were appointed in the Service by selection. The writ petition is by Raja Subramanian a non-State Service Officer in the State of Tamilnadu who also has been appointed to the Se1 vice by selection and has a grievance B about the fixation of his seniority in the Service.

The recruitment to the Service is governed by the Indian Administra- tive Service (Recruitment) Rules, 1954 (hereinafter referred to as 'the Recruitment Rules'). Rule 4 prescribes the following methods of recruit- ment to the Service : (1) by a competitive examination; (2) by selection of c persons from among the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union; (3) by promotion of substantive member of a State Civil Service; and (4) 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 D are not members of a State Civil Service.

Rule 8 of the Recruitment Rules deals with the recruitment by promotion or selection. In sub-Rule (1) provision is made for recruitment by promotion of a substantive member of a State Civil Service and in sub-r.(2), the following provision has been made with regard to the recruit- E ment by selection from amongst non- State Civil Service Officers :

"8(2) The Central Government may, in special circumstances and 9n the recommendation of the State Government concerned and in consultation with the Commission and in accordance with F such regulations as the Central Government may, after consult- ation with the State Governments and the Commission, from time to time, make, recruit to the Service any person of outstanding ability and merit serving in FOnnection with the affairs of the State who is not a member of the State Civil Service or that State but who holds a gazetted post in a substantive capacity." G The seniority of an officer appointed to the Service is governed by the Indian Administrative Service (Regulation of Seniority) Rules, 1954 (hereinafter referred to as 'the Seniority Rules'). Such seniority depends on the year of allotment and Rule 3 makes provisions for assignment- of year of allotment to the officer. Sub-Rule (3) of Rule 3 deals with assign-

U.0.1. v. G.K.SANGAMESHWAR[AGRAWAL,J.) 9

ment of year of allotment to an officer appointed to the Service after the commencement of the Seniority Rules. Under Clause (a) of sub-rule (3) .> the year of allotment of an officer who is appointed to the Service on the results of a competitive examination is the year following the year in which such examination was held. In respect of an officer who is appointed to the Service by promotion in accordance with sub-rule (1) of Rule 8 of the B Recruitment Rules, clause (b) of sub-rule (3) prescribes that the year of allotment of such officer shall be the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement. of such officiation by the former. With · C regard to an officer who is appointed to the Service by selection in accordance with sub-rule (2) of Rule 8 of the Recruitment Rules, the . following provision has been made in clause ( c) of sub-rule (3) of Rule 3:

"3(3)(c) - where the officer is appointed to the Service by selection in accordance with sub-rule (2) of Rule 8 of the Recruit- D ment Rules, such year as may be determined ad hoc by the Central Govermnent on the recommendation of the State Govermnent • concerned and in consultation with the Commission.

Provided that· he shall not be allotted a year earlier than the year of allotment of an officer appointed to the Service in accord- E ance with sub-rule (1) of Rule 8 of the Recruitment Rules, whose length of service in the State Civil Service is more than the length -of continuous service of the former in connection with the affairs of the State." F The Seniority Rule were replaced by the Indian Administrative Ser- vice (Regulation of Seniority) Rules, 1987. Rule 3(3)(iii) of the said rules till February 3, 1989 was substantially on the same lines as Rule 3(3)(c) of the Seniority Rules of 1954.

j The Government of India has issued a circular/letter dated June 6, G 1978, with regard to fixation of seniority under Rule 3(3)(c) of the Seniority Rules of non-State Civil Service Officers recruited to the Service by selec- tion. The said letter reads as under -

"I am directed to say that m this Department's letter H

10 SUPREME COURT REPORTS [1993) SUPP. 1 S.CR.

A No.14014/83/76-AlS(I) dated the 15th February, 1977 on the above mentioned subject it is laid down that the seniority of a non- State Civil Service officer appointed to !AS by selection shall be deter- mined in consultation with UPSC on the analogy of rule 3(3)(b) of the !AS (Regulation of Seniority) Rules, 1954 subject to the proviso to rule 3(3)(c) of the said rules. B

2Copy pinpoint2. The question whether there shpuld be a depression of year of allotment of a non-State Civil Service Officer on account of the fact that he had been rejected by the Selection Committee on an earlier occasion, has been examined in consultation with the UPSC. c It has been decided that a non-State Civil Service Officer who was considered unsuitable by the Selection Committee for appointment to the !AS on an earlier occasion should not get a year of allotment higher than the year of allotment assigned to the non-State Civil Service Officer who was also considered along with the former in earlier year but was found suitable by the Selection Committee and D was, therefore, appointed to the !AS earlier than him. Such an officer may, however, get the same year of allotment but he .should be placed below the non-State Civil Service Officer allotted the same year of allotment who was selected and appointed to the !AS in an earlier year in preference to the non-State Civil Service E Officer appointed to !AS later ..

3Copy pinpoint3. It has also been decided in consultation with the UPSC that as between two or more non-State Civil Service Officers selected at the same time, the officer who was placed high in order of merit

F would be senior to the Officers placed lower in order of merit." \ By circular dated February 15, 1985, paragraph 3 of circular dated June 6, 1978 was deleted.

We will first take up the appeals which relate to S/Shri G .K. San- G gameshwar, KA. Belliappa and C. Chikkanna.

Shri G.K. Sangameshwer was employed in the Department of Cooperatives of the Government of Karnataka-:-He was holding the post of Joint Registrar, Cooperative Societies from September 3, 1973 and the post of Additional Registrar from April 28, 1980. He was selected for recruit- H ment to the Service as a non-State (Civil) Service Gazetted officer in the

'' U.0.1. v. G.K.SANGAMESHWAR[AGRAWAL,J.] 11

year 1985 and was appointed to tho Service on April 8, 1986. It appears A that before the said selection, he was considered for appointment to the Service along with one Shri P.G. Naik and he was not selected while Shri Naik was selected. Shri Naik was assigned the year 1981 as the year of allotment. By letter dated March 25, 1988, Shri Sangameshwar was in- formed by the Government of India that since he was not selected at the B .time when Shri Naik was so selected, he could not be assigned an year of allotment earlier than that assigned to Shri P.G. Naik and he was also assigned the year 1981 as the year of allotment. The case of Shri San- garneshwar is that he had been working on the post of Joint Registrar, Cooperative Societies, (which post is equivalent to a senior scale post of the Service) since Septembed, 1973 and that since Shri S. Swathantra Rao c who has been directly recruited to the Service on July 3, 1969 was ap- pointed to the Senior scale on December 19, 1972, he should be assigned the year 1969 as the year of allotment. It is also his case that Shri K.A. Belliappa, another non-State Civil Service Officer, who was selected along with him in the year 1985 had been assigned the year 1977 as the year of D allotment and since Shri K.A. Belliappa was placed below him in the select list, he should not be assigned the year of allotment lower than that _of Shri Belliappa and as such in any event he should be assigned the year 1977 as the year of allotment. The representation submitted by Shri Sangarneshwar v in this regard was rejected by order contained.in the communication dated E October 25, 1988. Shri Sangarneshwar filed an application (Application no. 865 of 1989) before the Tribunal for quashing the said order dated October 25, 1988 which was allowed by the Tribunal by its order dated July 12, 1991. The Tribunal quashed the order contained in the letter dated October 25, 1988 of the Government of India assigning the year 1981 as the year of F allotment to Shri Sangarneshwar and the Union oflndia as well as the State of Karnataka were directed to fix the seniority of Shri Sangarneshwar in accordance with clause (c) of sub-rule (3) of the Seniority Rules. The Union of India as well as the State of Karnataka have filed appeals against the said order of the Tribunal. , G Shri K.A. Belliappa was employed in the Department of Industries and Commerce of the Government of Karnataka. He was promoted as Joint Director of Industries and Commerce in May 1978: He was selected for recruitment to the Service in the year .1985 and was appointed to the H

12 SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A Service on June 10, 1986. By order dated Mar.ch 25, 1988, he was assigned the year 1977 as the year of allotment on the ground that one Shri M.G. Kadali, a State Civil Service Officer of the State of Karnataka, who had a '- longer length of service was assigned the year 1977 as the year of allotment in the Service. The case of Shri Belliappa is that since he had been working on the post of Joint Director of Industries and Commerce since may 1978, which post was equivalent to a senior scale post in the Service, he was 1entitled to be assigned the year 1974 as the year of allotment. The repre- sentation submitted by Shri Belliappa was, however, rejected by the Government of India on September 30, 1988. Shri Belliappa filed an application (Application No. 636 of 1989) before the Tribunal which was allowed by the Tribunal by order dated July 24, 1991 and the orders dated March 25, 1988 and September 30, 1988 were quashed and the Union of India and the State of Karnataka were directed to take up the case of Shri Belliappa for refixation of his seniority with reference to the year 1974. A review application (Review Application No. 72 of 1991) was filed by the D Union of India against the said order of the Tribunal but the same was dismissed by the Tribunal by its order dated October 31, 1991. The Union of India has filed the appeal against both the orders of the Tribunal dated July 24, 1991 and October 31, 1991 whereas the State of Karnataka had filed the appeal against the order dated July 24, 1991. E Shri C. Chikkanna was employed in the Department of Industries and Commerce of the Government of Karnataka. He was promoted as Joint Director of Industries and Commerce by order dated May 12, 1978. He was considered for selection for recruitment to the Service along with F Shri G.K. Sangarneshwar and Shri K.A. Belliappa in the year 1985 but he was not selected. He was selected subsequently and was appointed to the Service on September 28, 1988 and by order dated March 2, 1990, he was assigned the year 1981 as the year of allotment. He, however, claims that he should have been assigned the year' 1977 as the year of allotment. The representation submitted by him was rejected by the Government of India G on September 4, 1990. He moved an application (Application no. 608 of 1991) before the Tribunal which was allowed by the Tribunal by its order dated August 14, 1992 whereby the Tribunal has quashed the orders dated March 2, 1990 and September 4, 1990 and has directed the Union of India as well as the State of Karnataka to reconsider his case regarding the year of allotment in accordance with law and in the light of the principles

U.0.I. V. G.K.SANGAMESHWAR[AGRAWAL,J.] 13

indicated by the Tribunal in Sangameshwar's case. The Union of India as well as the State of Karnataka have filed appeals against the said order of the Tribunal

At .the outset it may be stated that the case of Shri KA. Belliappa differs from that of Shri G.K. Sangameshwar and Shri C. Cbikkanna inasmuch as the year of allotment of Shri Belliappa has been assigned on the basis of proviso to clause (c) of sub-rule (3) of Rule 3 of the Seniority Rules while the year of allotment of Shri G.K. Sangameshwar and Shri C. Chikkanna have been assigned on the basis of the circular dated June 6,

1978. We will first take up the case of Shri Belliappa.

As noticed earlier, Shri Belliappa has been assigned the year 1981 as c the year of allotment for the reason that one Shri M.G. Kadali, a State Civil Service Officer, whose length of service in the State Civil Service was more than the length of continuous service of Shri Belliappa, had been assigned the year 1981 as the year of allotment and in view of the proviso to Rule 3(3)(c) of the Seniority Rules Shri Belliappa could not be assigned an year D of allotment earlier than the year of allotment assigned to Shri Kadali. The Tribunal has allowed the application of Shri Belliappa having regard to its earlier decisions including the decisions in KV. Nambiar v. Union of India & Ors., (1990) 2 SLJ 370 and Shripati Narain Dubey v. Union of India & Ors., O.A. No. 424 of 1988, wherein the Tribunal had struck down Rule E 3(3)(c) of the Seniority Rules. The said decisions of the Tribunal Striking down Rule 3(3)(c) were reversed by this Court in Union of India v. Shri K. V. Nambiar & Ors., and Shri S.N. Dubey, Civil Appeals Nos. 1755 and · 1784 and 1991 decided on the April 8, 1991 wherein this Court has observed - F 'We are inclined to take the view that the Central Administrative Tribunal should not have struck down Rule 3(3)(c) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, merely on the basis that the two instances which had come before it for consideration were not being adequately answered under the G Rules. These Rules have been in force for almost 36 years and the challenge that has now come for consideration was the rare in- stance where under the Rules, it became difficult to deal with the matter. Union of India has in its affidavit indicated that exceptional situations as arising in the case of the two respondents should be answered under the residual Rules and if not covered under the H

14 SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A Rules, under the administrative powers and for that purpose the Rules should not have been struck down. Counsel for Union of India has told us during the course of hearing of the appeals that the relief granted by the Central Administrative Tribunal so far as the two officers are concerned may be sustained in terms of the directions of the Tribunal but the further direction that the Rule B referred to above is struck down may be set aside. Counsel for the respondents have no objection to the submission of the appellant being accepted.

We are inclined to accept the submission and while vacating the decision of the Tribunal on the question of the vires of the Rules, c we sustain the reliefs granted by the Tribunal in terms. Both the appeals are partly allowed."

In the review petition that was filed by the Union of India against the order of the Tribunal dated July 24, 1991 reliance was placed on the D said decision of this Court. The said review petition was, however, dis- missed by the Tribunal on the view that tbe relief granted by the Tribunal so far as Shri K.V. Nambiar and Shri S.N. Dubey were concerned, was sustained by this Court in terms of the direction of the Tribunal. The Tribunal was further of the view lhat its decisions in K. V. Nambiar v. Union E of India and Shripati Narain Dubey v. Union of India & Ors., showed that there was a conflict between the main provision of Rule 3(3)(c) of the Seniority Rules and the proviso to Rule 3(3)(c) and that the proviso was to be ignored and that the validity of the proviso to Rule 3(3)(c) had not been upheld by this Court and that on the other hand the relief that was granted by the Tribunal ignoring the proviso to Rule 3(3)(c) had been p upheld by this Court.

We are unable to appreciate this approach of the Tribunal in holding that this Court has upheld the view of the Tribunal that the proviso to Rule 3(3)(c) of the Seniority Rules is in conflict with the main provision of Rule 3(3)(c) of the Seniority and must be ignored. The order passed by this G Court on April 8, 1991 in Union of India v. K. V. Nambiar & Others (supra) clearly upholds the validity of Rule 3(3)(c) in its entirety. Merely because the Court has sustained the relief that was granted by the Tribunal to the two officers on the basis of the statement made by the counsel for the Union of India does not mean that this Court has upheld the view of the H Tribunal with regard to the validity of the proviso to Rule 3(3)(c). Since

U.0.1. V. G.K.SANGAMESHWAR[AGRAWAL,J.) 15

this Court has upheld the validity of Rule 3(3)(c) of the Seniority Rules in A its entirety (including the proviso), the order passed by the Tribunal that the proviso to Rule 3(3)(c) is invalid and must be ignored for assigning the year of allotment cannot be upheld.

Shri P. Chidambaram, the learned Senior Counsel appearing for Shri B K.A. Belliappa, has, however, urged that the proviso should be so con- strued that it does not result in injustice in the matter of assignment of the year of allotment and that it must be read down to be applicable only when a State Civil Service Officer and a non-State Civil Service Officer are considered by the Selection Committee for appointment to the Service in the same year. In such a case, if the length of the service of the State Civil C Service Officer is more than the length of continuous service of the non-State Civil Service Officer, it would be just and proper to assign the year of allotment to the non-State Civil Service Officer in accordance with the proviso. But where the State Civil Service Officer is considered for appointment to the Service in an year different from the year in which the non-State Civil Service Officer is so considered, there is no justification for applying the proviso. In this context, Shri Chidamabararn has urged that if the proviso is not so construed, the year of allotment of a non-State Civil Service officer would be dependent on the year of allotment of a State Civil Service Officer having a longer length of service though appointed much after the appointment of the non-State Civil Service Officer. In support of this submission, Shri Chidarnbararn has placed reliance on the decision of the Gujarat High Court in KK Baxi v. Union of India, (1987) 5 Service Law Reporter 9. We find no substance in this contention. The proviso to Rule 3(3)(c) prescribes that an officer who is appointed to the Service by selection in accordance with sub-rule (2) of Rule 8 shall not be assigned an year earlier than the year of allotment of an officer appointed in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules whose length of service in the State Civil Service is more than the length of continuous service of the former in connection with the affairs of the State. The use of the word "appointed" indicates that the State Civil Service officer must have been appointed to the Service at the time when the non-State Civil Service officer is appointed to the Service. This would exciude a State Civil Service officer who is appointed to the Service after the appointment of the non-State Civil Services officer to the Service, but would include a State Civil Service officer who is appointed to the service in the same year in which the non-State Civil Service officer is appointed H

16 SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A or is appointed in an earlier year. The intent of the proviso is to make the inter se seniority of a State Civil Service officer and a non-State Civil Service officer who have been appointed to the Service dependent on their respec- tive length of service. A non-State Civil Service officer cannot claim seniority over the State Civil Service officer whose length of service in the State Civil Service is more than the length of continuous service of the B non-State Civil Service officer. We find nothing unjust or unreasonable in this provision whereby the seniority of two officers (one belonging to the State Civil Service and the other a non-State Civil Service officer) who have been found suitable for appointment to the Service is so fixed that a non- Sate Civil Service officer does not become senior to a State Civil Service C officer whose length of service in the State Civil Service is more than the length of continuous service in connection with the affa::' of the State of the non-State Civil Service officer.

The decision of the Gujarat High Court in K.K. Baxi v. Union of D India, (supra) has no application. In that case, the High Court has con- strued para 3 of the circular dated June 6, 1978 and has held that it only applies to cases where the officers are assigned the same year of allotment. The said decision has no bearing on the construction of the proviso to Rule 3(3)(c).

E For the reasons aforesaid, we are of the view that the year of allotment was rightly assigned to Shri K.A. Belliappa in accordance with the proviso to Rule 3(3)(c) of the Seniority-Rules. We are unable to uphold the orders passed by the Tribunal quashing the orders passed by the Government of India in this regard. F We would now deal with the cases of Shri G.K. Sangarneshwar and Shri C. Chikkanna. The years of allotment in these officers have been assigned in accordance with the circular dated June 6, 1978. Shri Chidam- baram, learned Senior Counsel appearing for Shri Chikkanna and Shri S.S. Javali, learned Senior Counsel appearing for Shri Sangarneshwar, have challenged the validity of circular dated June 6, 1978 on the ground that it runs counter to Rule 3(3)( c) of the Seniorfiy Rules which requires that the year of allotment of an officer who is appointed to the Service by Selection in accordance with sub-rule (2) of Rule 8 of the Recruitment Rules shall be determined ad hoc by the Central Government on the recommendation of the State Government on the and in consultation with the Commission.

U.0.1. v. G.K. SANGAMESHWAR [AGRAWAL,J.J 17

). The submission is that having regard to the fact that the non-State Civil A Service officers belong to different categories there can be no uniform rule for assigning the year of allotment to such officers and the case of each officer has to be considered on its own merit on the basis of the recom- mendation of the State Government concerned and in consultation with the Commission. It is urged that circular dated June 6, 1978 whereby a general formula has been laid down for determining the year of allotment B of non-State Civil Service Officer cuts down the discretion that is required to be exercised after taking into consideration the facts and circumstances in respect of each officer. In support of this submission, reliance has been placed on the observations of the Tribunal in, K Ramachandran v. Union of India, (Application no. 536 of 1986 decided on April 30, 1986) which c have been followed by the Tribunal in its subsequent decisions in T.M. Thomas v. Secretary, Department of personnel & Training, 1987, Labour & Industries Cases, 1541; S.N Choudhury v. Union of India, 1989 (6) SLR 519; S. Rajasubramian v. Government of India, 1990 (13) Administrative Tribunal Cases, 147 as well as the decisions of the Tribunal in the cases D under appeal.

We are unable to accept the said contention. It is no doubt true that • in Rule 3(3)(c) of the Seniority Rules, a discretion has been conferred on the Central Government to determine the year of allotment to be assigned to an officer who is appointed by selection in accordance with sub-rule (2) E of Rule 8 of the Recruitment Rules and while making the said determina- tion, the Central Government has to consider the recommendation of the State Government concerned and has also to consult the Union Public Service Commission. But this does not preclude the Central Government from laying down the principles to be followed in the matter of exercise of F the discretion in this regard. Such principles can be evolved keeping in view the fact that a number of officers are appointed to the Service by selection in accordance with sub-rule (2) of Rule 8 of the Recruitment Rufes and there.-are certain common features which may afford a rational basis for ~ determination of the year of allotment for the purpose of assigning seniority. Such principles would have the advantage of excluding arbitrari- G ness in the exercise of the discretion and would ensure fairness in such determination. We are unable to construe the provision contained in Rule 3(3)(c) of the Seniority Rules as excluding the laying down of such prin- ciples for the exercise of discretion and we are unable lo hold that the laying down of such principles is violative of the provisions of Rule 3(3)(c) H

18 SUPREME COURT REPORTS [1993) SUPP. 1 S.C.R.

A of the Seniority Rules. Reference, in this context, may be made to the decision of this Court in S. G. Jaisinghani v. Union of India, [1967) 2 SCR 703 wherein it has been laid down -

"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which B our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in goneral, such c decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle of without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law." (P.718)

We are, therefore, of the opinion that laying down of principles to D be followed in the matter of determination of the year of allotment, by itself, cannot be held to be violative by Rule 3(3)(c) of the Seniority Rules.

We may now examine whether the principles laid down in the cir- cular dated June 6, 1978, suffer from any legal infirmity. In the fust paragraph of the said circular, reference is made to an earlier letter of the E Government of India dated February 17, 1977 wherein it is stated that the seniority of non-State Civil Service officers appointed to the Service by selection shall be determined in consultation with the Union Public Service Commission on the analogy of Rule 3(3)(b) of the Seniority Rules subject to proviso to Rule 3(3)( c) of the said Rules. Paragraphs 2 and 3 of the F circulars provide a departure from the general principle laid down in paragraph 1 in certain circumstances.

In so far as paragraph 1 of the circular is concerned, it only applies the principle laid down in Rule 3(3)(b) of the Seniority Rules which requires that the year of allotment of an officer who is appointed to the G Service by selection in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules shall be the year of allotment of the junior-most among the officers recruited to the Service in accordance with Rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former. The said H provision is based on the principle that in the matter of seniority, the ·

U.0.1. v. G.K. SANGAMESHWAR [AGRAWAL,J.J 19

criterion to be applied is the date of continuous officiation on a senior post. A It stands to reason that the principle which has been applied for assigniµg the year of allotm.ent of a State Civil Service Officer vis-a-vis a directly recruited officer can also be applied for assigning the year of allotment to a non-State Civil Service Officer vis-a-vis a State Civil Sernce Officer and directly recruited officer. The anomalies arising on account of uniform B application of this principle have been dealt with in the proviso to Rule 3(3)(c) as well as in paragraphs 2 and 3 of the Circular dated June 6, 1978. Alth.ough the Tribunal, in K. Ramachandran's case (supra) has fournl, fault with paragraph 1 of the circular but the Tribunal has itself applieH the general principle contained in the said paragraph in a number of cases. In this regard we may refer to T.M. Thomas's case (supra) wherein the c Tribunal has proceeded on the basis that the post of Deputy Secretary to the Government held by the applicants in that case should be treated to be equivalent to the post in the senior time scale in the Indian Administra- tive Service and the year of allotment should be assigned by taking into account the service of the applicant on the said post and having regard to the year of allotment of the junior-most direct recruit of the Indian Ad- ministrative Service who started officiating in the senior scale of the service from an earlier date. Jn the instant case also both the officers, namely, S/Shri GK. Sangameshwar and C. Chikkanna are claiming the year of allotment on the basis of the principle contained in Rule 3(3)(b), i.e., with reference to the date of continuous officiation on the post equivalent to the senior post in the serVice. Their grievance is against the depression of the year of allotment thus arrived by application of the principle contained in paragraph 2 of Circular dated June 6, 1978. In the said paragraph, it is stated that the question whether there should be depression of the year of allotment of a non-State Civil Service Officer on account of the fact that he had been rejected by the Selection Committee on an earlier occasion had been examined in consultation with the Union Public Service Commis- sion and it had been decided that a non-State Civil Service Officer who was considered unsuitable by the Selection Committee for appointment to the Indian Administrative Service on an earlier occasion should not get a G year of allotment higher than the year of allotment assigned to the non- State Civil Service Officer who was also considered along with the former in earlier year but was found suitable by the Selection Committee and was, therefore, appointed to the Service earlier than him. In the said paragraph it is further stated that such an officer 11lilY get the same year of allotment H

20 SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A but he should be placed below the non-State Civil Service Officer allotted the same year of allotment who was selected and appointed to the Service in an earlier year in preference to the non-State Civil Service Officer appointed to the Service later. On behalf of the two officers referred lo above, it has been urged that the said provision providing for depression B of the year of allotment is arbitrary and unreasonable inasmuch as it results in ignoring the service of non-State Civil Service Officer only for the reason that he has no been selected on an earlier occasion. Jn this connection, it has been submitted that under the Indian Administrative Service (Appoint- ment by Selection) Regulations, 1956 the question of finding an officer suitable does not arise at all because all the non-Civil Service Officer whose c names are proposed by the State Government are officers of outstanding ability and merit and since the number of officers required to be proposed is five time the number of vacancies, selection of one does not mean that the other four are unsuitable. It is further contended that the non-Civil Service Officers come from different services and departments and that no case can be compared with any other case. We find it difficult to appreciate this contention. Paragraph 2 of the Circular dated June 6, 1978 contains a wholesome principle that if two officers have been considered by the Selection Committee and one of them has been found suitable and selected for appointment in preference to the other, the one who was not selected cannot claim seniority over the person who has been selected in the event of the person who was not selected being selectecl subsequently. It gives protection to an officer who was found more meritorious by the Selection Committee at the selection over the officer who was found less meritorious by the Selection Committee. It is not correct to say that the procedure for selection as prescribed in the Indian Administrative Service (Appointment by Selection) Regulations, 1956 does not postulate consideration of the comparative merits qf the non-State Civil Service Officers by the Selection Committee. Regulation 3 which deals with the mode of selection for appointment to the Service provides ~s under:

G "3. Eligibility, mode of selection and appointment to the Service. - (1) In accordance with the provisio.n contained in sub-rule (2) of rule 8 of the Recruitment Rules, the State Government may, from time to time, consider the cases of persons not belonging to the State Civil Service but serving in connection with the affairs of the H State or State in the case of Joint Cadres, who -

U.O.l. v. G.K.SANGAMESHWAR[AGRAWAL,J.] 21

(i) are of outstanding merit and ability; and A ', > (ii) have completed not less than (8 years' of continuous ser- vice) under the State Government or in the case of a Joint Cadre, under any one of the State Government constituting the Joint Cadre, in a gazetted pest involving duties comparable in impor- u( tance and responsibility to that of the State Civil Service, (and who B 1 is holding that post in a substantive capacity) and propose the names of officers suitable for appointment to the Service :

Provided that the State Government shall not ordinarily con- sider the cases of persons who have attained the age of 52 years : c Provided further that the number of officers proposed for the ' consideration of the Selection Committee under sub-Regulation -\' (2) shall not exceed five times the number of vacancies to be filled in during the following year. ~

D (2) The Selection Committee set up in accordance "1th regulation ,. 3 of the Indian Administrative Service (Appointment by Promo- tion) Regulations, 1955, shall consider the proposals of the State Government made in sub-regulation (1) and recommend the names of such of these officers, if any, as are in their opinion, suitable for appointment lo the Service. E

~ (2A) The suitability of a person for appointment to the Service shall be determined by a scrutiny of his confidential roll and by inten1ewing him.

(3) The recommendations of the Selection Committee made under F -j sub-regulation (2) shall be placed before the State Government ; concerned and the latter shall fonvard those recommendations to

1 j,. the Commission for approval along with -

(i) the confidential record of the officers concerned; and G (ii) the observations, if any, of the State Government on the recommendations of the Selection Committee.

(4) On their being finally approved by the Commission, appoint- \ ments of such officers to the Service shall be made by the Central H

22 SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A Government.

(5) Every person recommended by the Selection Committee as suitable for appointment to the Service who has not attained the age of 52 years on the date on which such recommendation is finally approved by the Commission shall undergo such training in B the Lal Bahadur Shastri National Academy of Administration, the State training institutions and other established training institutions in the country for such period as the Central Government may consider necessary. 11

c The aforesaid provisions show that the State Government proposes the names of non-State Civil Service Officers of outstanding merit and ability who have completed not less than eight years' continuous service under the State Government in a Gazetted post involving duties com- parable in importance and responsibility to that of the State Civil Service D for the purpose of selection for appointment to the Service and the selection is made by the Selection Committee set up in accordance with Regulation 3 of the Indian Administrative Service (Appointment by • Promotion) Regulations, 1955. The Selection Committee is required to adjudge the suitability of a person for appointment to the Service by scrutiny of his confidential roll and by interviewing him and the recommen- E dations of the Selection Committee have to be considered by the Union Public .>ervice Commission in the light of the confidential. record of the officers concerned and the observations, if any, of the State Government on the recommendations of the Selection Committee. The aforesaid provisions indicate that all the officers who are proposed by the State F Government are co.nsidered by the Selection Committee on the basis of a scrutiny of their confidential roll and by interviewing them and the fmal decision is taken by the Union Public Service Commission on the said recommendations of the Selection Committee keeping in view the con- fidential record of the officer concerned as well as the observations, if any, of the State Government on the recommendations of such Selection Com- G mittee. In other words, the suitability of the officers whose names have been proposed by the State Government is considered by the Selection Committee as well as by the Union Public Service Commission and, there- fore, it cannot be said that there is no assessment of comparative merit of the non-State Civil Service Officers who have been proposed by the State H Government in the process of selection for appointment to the Service. The

U.0.1. v. G.K.SANGAMESHWAR[AGRAWAL,J.] 23

fact that the non-State Civil Service Officers whose names are proposed by A the State Government come from different sources and departments does not, in our opinion, militate against assessment of their comparative merit by the Selection Committee and the Union Public Service Commission and, therefore, there is no reason why the principle underlying paragraph 2 should not apply to such officers. B It has been urged on behalf of Shri G.K. Sangameshwar that on account of the principle of depression of the year of _allotment contained in paragraph 2 of the Circular dated 6th June, 1978, the year of allotment of the said officer has been depressed by about 12 years inasmuch as the year of allotment that has been assigned to him is 1981 though he should C have been assigned the year 1969 in view of the fact that he had been holding the post of Joint Registrar, Co-operative Societies which is equated with the senior sale of the Service w.e.f. 1973 and the junior-most direct recruit of 1969 batch was holding the senior scale post in the Service at that time. It has also been urged that in the Selection held in 1985 Shri D Sangarneshwar was placed at Sl.No.1 in the merit list while Shri Belliappa, who was placed at Sl.No.3 in the merit list has been assigned the year 1977 as the year of allotment whereas Shri Sangarneshwar has been assigned the year 1981 as the year of allotment. We do not find any merit in this contention. The fact that Shri Sangarneshwar was holding the post of Joint Registrar, Cooperative Societies since September 3, 1973 loses all sig- E nificance because, in spite of his experience of holding that post, he was not selected for appointment to the Service in the earlier selection in which Shri Naik was selected for appointment. So also Shri Sangarneshwar cannot claim parity with Shri Belliappa because Shri Belliappa was not considered for selection for appointment to the Service prior to 1985 while Shri F Sangameshwar was so considered and was not selected. Shri Sangamesh- war availed the chance to be se:ected for appointment to the Service in an earlier selection but he was not successful. Having failed U... that attempt he must face the consequences of such failure. He cannot be permitted tu say that the said consequences as provided in paragraph 2 of the Circular G dated June 6, 1978, be ignored on the ground that they are arbitrary and unreasonable since they operate harshly against him. The reasonableness of the provision contained in paragraph 2 of the Circular cannot be considered in isolation by confining oneself to its effect on a non-State Civil Service Officer (like Shri Sangarneshwar), who was not selected in the earlier selection but was selected subsequently. The matter has to be H

24 SUPREME COURT REPORTS [1993] SUPP. l S.C.R.

A examined in the broader perspective keeping in view the interests of the non-State Civil Service Officer (like Shri Naik) who was selected in the earlier selection. It would be unreasonable to place the non-State Civil Service Officer wh6 was not selected above the non-State Civil Servici: Officer who was not selected at the same selection. The principle under- lying paragraph 2 of the Circular dated June 6, 1978 cannot, therefore, be B held to be arbitrary or unreasonable merely because of its effect on a particular officer viz. Shri Samgameshwar.

No fault can, in our opinion, be found with the orders passed by the . Government of India assigning the year of allotment to Shri Sangameshwar , C in accordance with the provisions contained in paragraph 2 of the Circular dated June 6, 1978 and the Tribunal was not justified in interfering with the said dete!_mination and the orders passed by the Tribunal in that regard cannot, therefore, be upheld.

D The year of allotment of Shri Chikkanna was also assigned on the basis of paragraph 2 of Circular dated June 6, 1978 inasmuch as he was considered by the Selection Committee in the year 1985 but he was not selected. He was selected subsequently in the year 1987 and was appointed to the Service on September 28, 1988. He was assigned the year 1981 as the year of allotment for the reason that Shri Sangameshwar who had been selected in the year 1985 had been assigned 1981 as the year•of allotment. Shri Chikkanna claims that he is entitled to assignment of an earlier year of allotment on the ground that he had been holding the post of Joint Director of Industries and Commerce, which post is equivalent to a senior scale post of the Service, since May 12, 1978. Shri Chidambaram, the learned Senior Counsel appearing for Shri Chikkanna, has submitted the at the time when Shri Chikkanna was appointed to the Service, the Seniority Rules of 1954 has been replaced by the Indian Administrative Service (Regulation of Seniority) Rules, 1987 and that Circular dated 6th June, 1978 which had been issued in the context of the Seniority Rules of G 1954 had ceased to have any application after the repeal of the 1954 Rules and, therefore, the year of allotment of Shri Chikkanna should have been determined without reference to Circular dated 6th June, 1978. We do not find substance in this contention. The repeal of the Seniority Rules of 1954 by the Seniority Rules of 1987 did not bring about any materi;tl change in the provisions with regard to assignment of year of allotment to a non-State H Civil Service Officer. The provisions corresponding to Rule 3(3)(c) of the

U.0.1. v. G.K.SANGAMESHWAR [AGRAWAL.I.) 25

Seniority Rules of 1954 was Rule 3{3)(iii) of the Seniority Rules 0f 1987 A and till it was substituted by Notification dated February 3, 1989, Rule 3(3)(iii) provided that the year of allotment of an officer appointed by selection may be determined ad hoc by the Central Government on the recommendation of the State Government concerned and in consultation with the Commission. The proviso to. the said clause was in the same terms as the proviso to Rule 3(3)(c) of the Seniority Rules of 1954. There is, therefore, no reason why Circular dated 6th June, 1978 should not apply in the matter of determination of the year of allotment of officers appointed by selection till February 3, 1989. The said circular is not statutory in nature and is, therefore, not affected by the repeal of the Seniority Rules of 1954. The circular contains adn1inistrative instructions for exercise of discretion in the matter of determination of the year of allotment and since the provisions contained in Rule 3(3)(iii) of the Seniority Rules of 1\187 were similar to those contained in Rule 3{3)(c) of the Seniority Rules .of 1954, the said instructions contained in Circular dated 6th June, 1978 continued to apply for determination of the year of allotment under Rule 3(3)(iii) of the Seniority Rules of 1987. J

W:P. (C) NO. 971 OF 1992

Shri Raja Subramanian, the petitioner in this writ petition under Article 32 of the Constitution, was appointed on the gazetted post of E Labour Officer in the State of Tamil Nadu on 3rd June, 1962. He was promoted to the posts of Assistant Labour Commissioner, Deputy Labour Commissioner and Labour Commissioner. He was sponsored by the Government of Tamil Nadu for selection to the Service as a non-State CiviJ Service officer in the years 1975, 1977, 1980 1982, 1983 and 1984 but he was not selected. The petitioner was again sponsored by the State Govern- ment in the year 1985 and he was selected and he was appointed to the Service by order dated April 6, 1985. By order of the Goverrnnent of India dated December 20, 1985, he was assigned· the year 1979 as the year of allotment under the Seniority Rules of 1954. He submitted a representation that he should have been assigned the year 1966 as the year of allotment in view of the various posts held by him since the year 1972. The said representation of the petitioner was rejected and thereupon he moved the Tribunal. The said application (OA. No.650 of 1988) of the petitioner was allowed by the Tribunal by its order dated 19th October, 1989, whereby the Tribunal directed The Union of India and the State of Tamil Nadu to H

26 SUPREMECOURTREPORTS [1993] SUPP.1 S.C.R.

A fix the seniority of the petitioner in accordance with Rule 3(3)(c) of the Seniority Rules of 1954 and in the light of the observations made in the said order. The Union of India filed an appeal against the said order of the Tribunal which was allowed by this Court by order dated 24th Septem- ber, 1991. This Court observed :

B "We have heard counsel for the parties at length Both sides have placed their views on the construction of Rule 3(3)(c) of the !AS (Regulation of Seniority) Rules, 1954. Counsel for the Union of India submits that the question deserves to be reconsidered by the Union of India with reference to the rule without regard to the c observations made by the Tribunal.

We are of the view that the Government should be given a chance lo apply their mind to the import and significance of the relevant rules and express their views on the merits of the case without regard lo what the Tribunal has stated. D In the 'Circumstances, we set aside the impunged judgment of the Tribunal, without expressing any view of the merits, so that the Central Government may express their views independent of what has been stated by the Tribunal. E The appeal is allowed in the above terms."

After the said decision of this Court, the matter was considered by the Central Government and by letter dated 22nd January, 1992 the Chief Secretary to the State of Tamil Nadu informed the petitioner that the F Government of India, after considering the matter, had found that the provision regarding depression of seniority in the Indian Administrative Service as contained in the letter of the Government of India dated 6th June, 1978 is reasonable and after considering the observations of this Court, the Government of India had come to the conclusion that the petitioner's year of allotment had been correctly fixed as 1979 under Rule 3(3)(c) of the Seniority Rules of 1954. Feeling aggrieved by the said order, the petitioner filed a writ petition under Article 32 of the Constitution of India.

Shri P. Chidambaram, learned Senior Counsel for the petitioner, has assailed the impugned order on the ground that it is based on paragraph'

U.0.1. v. G.K. SANGAMESHWAR [AGRAWAL, J.] 27

2 of the Circular dated June 6, 1978 which is invalid and has urged that A I same contentions as he had urged in the appeal relating to Shri C. Chik- kanna. The said contentions have been considered by us and rejecting the same we have upheld the validity of the said provision in the Circular. Since the year of allotment of the petitioner has been determined in accordance with the said provision in the circular dated June 6, 1978, we do not find any ground for interference in this writ petition.

In the result, the appeals are allowed, the orders passed by the Tribunal in relation to the three officers, namely, Shri G.K. Sangameshwar, Shri K.A. Belliappa and Shri C. Chlkkanna are set aside and the orders passed by the Union Government with regard to assignment of the year of allotment to these officers in the Indian Administrative Service are upheld. W.P. (C) No. 971 of 1992 is, however, dismissed. There will be no order as to costs.

V.P.R. Appeals allowed. Petition dismissed.