Holding

The 1963 and 1967/68 seniority lists are valid and the 1974 revised seniority list is illegal and must be quashed.

Summary

The appellant, a promotee in the Military Engineer Services (MES) Class I, challenged a 1974 seniority list that, applying a 9:1 quota between direct recruits and promotees, rendered him surplus and denied him a berth. The Court examined the validity of the earlier seniority lists of 1963 and 1967/68, the statutory character of the 1949 MES Rules, the power of the Government to relax recruitment quotas during emergencies, and the constitutional test of equality under Articles 14 and 16. It held that the 1949 Rules became statutory only in 1969; therefore the seniority lists drawn before that date were valid and could not be retrospectively altered. The 1974 list, based on a misinterpretation of the Bachan Singh decision and an illegal quota rule, was declared invalid and set aside, along with the promotion panel based on it. The appeal was allowed, restoring the earlier seniority lists and quashing the impugned promotion panel.

Issues considered

The legality of the 1974 revised seniority list based on a 9:1 quota between direct recruits and promotees.
Whether the seniority lists of 1963 and 1967/68, drawn before the 1949 Rules acquired statutory status, remain valid.
The extent of the Government's power to relax recruitment and quota rules during emergencies and its constitutional limits under Articles 14 and 16.
Whether promotees appointed during the period of relaxed rules are members of the service entitled to seniority.
The validity of the promotion panel drawn on the basis of the impugned seniority list.

Legislation cited

Army Instruction No.241 of 1950
Constitution of Indias. Art.14, s. Art.16, s. Art.309
Military Engineer Services (Recruitment, Promotion and Seniority) Rules, 1949s. Appendix V para 3(iii), s. Rule 23, s. Rule 3, s. Rule 4

Subjects

seniorityquotaMilitary Engineer Servicesservice jurisprudenceArticle 16promotioninter-se seniorityconstitutional lawpublic serviceemergency recruitment

Judgment

A. JANARDHANA
A
v.

UNION OF INDIA AND OTHERS
• April 26, 1983
It
[D.A. DESAI AND V. BALAKRJSHNA ERAD1, JJ.)

Service Jurisprudence-Anomal!' in recruitnient Rules-Inter-se-seniority of
Direct Recruits and promotees in the Military Engineer Services Class 1-
c Seniority Lists drawn up in 1963 and 1967/68, on the principle of length of
service-Continuous officiation, altered lo one b:ised on quota between direct
recruits and promotees leading to rota for confirn1ation, tretaing many earlier
promotees as surplus and out of the list-Validity of the revised 1974 inter-se
Seniority List and the panal of p,.01notion prepared and published on January 13,
1975, based thereon-Military Engineer Services, Class I, (Recruitn1ent Promotion
and Seniority) Rules, 1949, which hecan1e statutory with effect from 1.2.69-Rules 3
D and 4 read with Rule 23 of Pait 111,para 3 of Appendix V and Army Instruction
241of1950, scope of-Constitution of India, Article 14. •

Appellant joined service as supervisor in the year 1953 in what is styled
as Military Engineering Service. He can1e to be promoted as Assistant Execu~
tive Engineer in 1962. In the seniority list of AEE drawn up in the year 1963,
E he was shown at serial no. 357. In the seniority list of 1967, the appellant's
name was found at serial no. 234. But as a result of- the decision in Bachan
Singh's case, the Union GoverD.inent set aside the seniority lists of 1963 and
1967/68 and drew up a fresh list on the criteria drawn fron1 the decision in
Bachan Singh's case. In the seniority list so drawn, the appellant's name did
·not find a place at all because he was pushed down, treating still as surplus,
after applying the quota fron1 the date of the constitution of the service itself
F in 1951, applying the ratio of 9:1 between the direct recruits and the promotees.
If he were to be treated as surplus in this manner the appellant cannot be
adjusted and treated as a member till 1989 by which he may retire, of the ,-
service within the definition of that expression found in the Military Engineers \---._.
Services Rules (Recruitment, Promotion and Seniority) Rules 1949 as amended
from time to time. The Union of India understood the decision in Bachan
G Singh's case to mean that there was a quota for recruitment in the cadre of
AEE in MES Class I of9 direct recruits to one promotee (9:1) since 1951 and
that the quota must lead to rota for confirmation and thus redrew the seniority
list with the startling result of the appellant and several others similarly situ-
ated unable to get a berth at all.

H The appellant therefore, filed a writ petition no. 4293/79 questioning
the validity and legality of the revised seniority list Ex. 'D' circulated with
letter dated June 14, 1974 and to cancel the panel of promotion prepared and
i;ommunicated in E,E.C's proceedings no. 65020/EE/74/EIR/dt January 13, 1975
A. lANAkDllAN V. tJNmN

drawn up on the basis ofthe impugiled revised seniority list. The writ petition
having been dismissed, the appellant has come up in· appeal' by special leave. A
Allowing the appeal, the Court

HELD : !. The seniority lists of 1963 and 1967/68 were quite legal and
valid and hold the field till 1969 having been drawn up on the basis of the
principle which satisfies the test of Article 16. Their revision can be made in
respect of members who joined service after 1969 and the period subsequent B
to 1969. [963 E-FJ

2:1 The seniority list "Ex. D" circulated with the letter dated June 4,
1974 and the panel for promotion included in E-E-C's proceedings no. 65020/
-.-l EE/74/EIR dated January 13, 1975 drawn up on the basis of that list are in-
correct and sten1 from a misunderstanding and misinterpretation or the
Supreme Court's decision in Bachan Singh and Anr. v. Union oj· lnilia and Urs.
c
(1972} 3 SCR 898. [905 H, 966 A-CJ
•
2:2 There was no justification for redrawing the seniority iist In 1974
affected persOns recruited or pro1noted prior to 1969 when the rules acquired
statutory character. No doubt, it is open to the Government to prescribe
princi_ples for determining inter-se seniority of Persons belonging to the same D
service or cadre except that any such principle must n1eet the test of Article 16.
It is equally open to the Government to retrospectively revise s..:rvice rules, if
the same does not adversely affect vesled rights. But if the rule for determining
inter se seniority is revised or a fresh rule is framed, it must be constitutionally
valid. The criterion adopted is iHegal and invalid. It overlooks the character
of the appointments made during the period 1959 to 1969. It treats valid
appointments as of doubtful validity. It pushes down persons validly appointed
E
below those who were never in service and for reasons unknown with retros-
pective effect i.e. from 1951. [965 G-H, 966 B-C]

3. In Bachan Singh's case, the Supreme Court, after reviewing the
history of the MES rules from 1949 to 1969 held as follows :
F
(i) The •!949 Rules' and the subsequent amendments acquired statutory
character in 1969 because as a result or 1969 amendment, the entire body of
rules Of Class I became statutory rules by incorporation and till then they we:e
mere administrative instructions. (952 A]

(ii) Under rules~ and 4 of the 1949 Rules, .the recruitment to MES G
Class I could be made from two sources only, namely, by competitive ex.ami-
nation,held in India in accordance with Part II of the Rules, which.makes
extensive provisions for holding examination including the eligibility for
admission to the same, and by promotion in accordance with Part II of the
Rules. [9S2 BJ
~~· H
(iii) During the years 1962, 196J and 1964 particularly and until the
year 1969, the Class I Service Rules were not statutory in character. The
Union Government relaxed the Rules both in regard to recruitment by interview
938 SUPREME cotiRT iUliloRTS lt983) 2 s.c.R.
and in regard to the quotas fixed by the Rules for direct recruitment and
A recruitment by promotion to Class I Serv~ce, the quota rule being 9:1 as per
Rule 4. [953 A B, DJ

(iv) In 1962, there was a state of emergency. Engineers were immediately
required to fill the temporary posts in Class I service. To meet the emergency
the Union Governn1ent in consultation with the Union Public Service Com~
mission d~cided to directly recruit candidates by advertisement and selection
B by interview only by the Union Public Service Commission. The Government
with the aid of selection and interview by the UPSC directly recruited some
respondents to Class I service in the years 1962, 1963 and 1964. [953 D-EJ

(v) In respect of the vacancies that occurred between 1951 and 1971,
because of the emergency, the quota rule for tilling them was ignored both for
c departmental promotees and direct recruitment; and [953 E-GJ

(vi) Therefore, the appointment of those direct recruits who were
• appoirited after interview by the Union Public Service Commission, that is by
a method not permitted by the rules was valid and legal in as much as that
Was done in relaxation of the rules both as to competitive examination and
the pron1otions were given after relaxing the quota rule. The direct recruits
D who were appointed by interview did fall within the class of direct recnlits.
[954 B-C]

(vii) Rule 24 which was introduced in 1967 conferred power on the
Union Government for the reasons to b~ recorded in writing and after con•
sultation with the Union Public Service Commission to relax all or any of
the rules with respect to class or category of persons/posts. As the 1949 rules
E were non·statutory in character till 1969, the Government did make the
recruitinents from both sources after exercising the said power to relax
the rules. [954 G, 955 A, BJ +

4.1 If Rule 3 of M.E.S. (R.P.S.) Rules provided methods of recruit•
ment indicating the sources from which recruitment could. be made and if
F rule confers discretion on Government to make recruitment from either source
because Rule: 4 opens with a limitation, namely, that it is subject to Rule 3~
now, if as held in Bachan Singh's case~ "1949 Rule's", while prescribing the
quota conferred power on the Union Government _to make recruitment in
relaxation of the rules, it is implicit in this power to make recruitment in
relax,ation of the quota rule and it is adn1itted that because of the emergency
and because of the exigencies of service, recruitment was made in relaxation
-
. ';:-t

G of the rules, in this case. It is this emergency and the dire need of urgently
recruiting engineers which led the Government to make recruitment in relaxa-
tion of quota rule by foregoing the competitive examination and promoting
subordinate ranks to class I service. Petitioners and similarly situated
persons were thous promoted to meet the dire need of service in relaxation of
the quota rule. [955 F-G]
H
4.2 It is true that where the rule provides for recruitment from two
sources and simultaneously prescribes quota, unless there is power to relax
the rule any recruitment in eKcoss of the qµota from either of the sour<ea CQuill
A. iANARDHANA V. UNION 939
be illegal and the excess recruits unless they find their place by adjustment in
subsequent years in the quota, would not be members of the service. A
[955 G, H, 956 A]

S. G. Jaisinghani v. Union of India, [1967] 2 SCR 703 at p. 718; B." S.
Gupta v. Union of India (Ist Gupta's case), [1975] Suppl. SCR 491; B. S. Gupta v.
Union of India (2nd Gupta's case) [1975] l SCR 104; referred to.

4.3 But, when recruitment is from two independent sources, subject to B
prescribed quota, but the power is conferred on the Government to make
recruitment in relaxation of the rules, any recruitment made contrary to the
quota rules would not be invalid, unless it is shown that the power of relaxa~
tion was exercised, ma/a.fide, that is not the contention in this case nor voiced
in Bachan Singh's case. [957 C·EJ

N.K. Chauhan & Others v. State of Gujarat and Others, [1977] l SCR c
1037; referred to.

4:4. Now, if recruitment contrary to Rule 3, namely, by interview by
the Union Public Service Commission, which is not the recognised mode of
recruitment, is held valid in Bachan Singh's case on the ground that it was
done in relaxation of the rules, it must follow as a cotollary that the san1e D
emergency compelled the Government to recruit by promotion engineers-to the
post of AEE class I in exeess of the quota by exercising the power of relaxation
and such recruitment ipso facto would be valid. The promotees being validly
promoted as the quota rule was relaxed would become the members of the
service. [957 G-H, 958 A]

4:5 The '1949 Rules' do not throw any light on the composition of the E
service, except the fact that the expression "servk:e" has been defined to mean
Military Engineering Service, Class I. If the recruitment is made from either
of the sources and is otherwise legal and valid, persons recruited to temporary
posts would nonethele"s be members of the service. Keeping in view the
exigencies of service and the requirements of the State, temporary posts would
be a temporary addition to the strength of the cadre, unless it is made clear to
the contrary that the temporary posts are for a certain duration or the appoint~
F
ments to temporary posts are of an ad hoc nature till such time as recruitment
according to rules is made. In the absence of any such provision, persons
holding permanent and temporary posts would become the members of the
service provided the recruitment to the temporary posts is legal and valid.
Once the recruitment is legal and valid, there is no difference between the
holders of permanent posts and temporary posts in so far as it relates to all G
tho members of the service. [958 B-DJ

In the instant case, the question whether the vacancies Wfil'e in the perma"'
ncnt strengh or in the temporary cadre is irrelevant because none of the
appellants and others similarly situated is reverted on the ground that no more
vacancy is available. [958 A] ff
S. B. Patward/ran & Ors v. State of Maharashtra & Or1, [1977] 3 SCR
775 @ 795 followed.
SUPREME COUR'I' REPORTS 1!9MI 2 S.C.lt
5:1 It is well recognised principle of service jurisprudence that any rule
A of seniority has to satisfy the test of equality of opportunity in public service
a'i enshrined in Article 16. Equally yet well recognised canon is that in the
absence of any other valid rule for determining inter se seniority of member.~
belonging to the same ser~·ice, the rule of contihuous uninterrupted service since
the entry would .be valid and would satisfy the test of Article 16. Apart from
this general principle for determining inter se seniority in the instant case, there
is a specific rule nan1ely para 3(iii) of Appendix V of 1949 Rules, governing
B inter se seniority between direct recruits and promotees in MES, Class I Service
and it was in force till 1974 when the impugned list was drawn up. [960 F-H]

5:2 In para 3(iii) of Appendix V of 1949 Rules, it was proviaed that a
roster shall b~ maintained indicating the order in which appointments are to be
made by direct recruitment and promotion in accordance with the percentages
c fixed for each method of i'ecrllitment in the recruitment rules. The relative
seniority of prornotees and direct recruits shall be determined by the dates on
which the vacancies reserv.ed for the directs and the promotees occur. This
rule was related to the quota of 9: 1 between direct recruits and promotees
prescribed in Rule 4. [%1 A-CJ

D 5:3 A combin_ed re,1ding of Rule 4 and para 3(iii) of Appendix V would
clearly show that a roster ha~ to be maintained ·consistent with the quota sO
that the relative inter se seniority of promotees and direct recruits to be deter-
mined by the date on which va..::ancy occurred and the vacancy is for the direct
recruit or for the promotee. If quota prescribed by rule 4 was adhered to or
was inviol::1.ble, the r...ile of seniority enunciated in para 3(iii) of Appendix V
E will have to be given full play and the seniority list has to be drawn in accor-
dance with it. But as quota rule was directly inti.:rrelated with the seniority
rule and one~ the quota rule gave way, the seniority rule enunciated in para
3(iii) of Appendix V became wholly otiose and ineffective. [961 C-E]

It is well recognised that Where the quota rule is linked with the beniority
F rule, if the first breaks down or is illegally not adhered to giving effect to
the second would be unjust, inequitous and improper. In the instant case,
therefore, once the quota rule was wholly relaxed between 1959 and 1969 to
suit the requirement of service and the recruitment made in relaxa\ion of the
quota rule and the minimum qualification rule for direct recruits is held tO be
valid, no effect can be given to the seniority rule enunciated in para 3(iii),
which was who11y inter-linked with the quota rule and cannot exist apart from
G it on its own strength. Further, this position is impliedly accepted by the
Union Government and is implicit in the seniority lists prepared in 1963 and
1967-68 in respect of AEES, because both these seniority lists were drawn up in
accordance with the rule of seniority enunciated in Annexure 'A' to Army
Instruction no. 241 of 1950 dated September 1, 1949 and not in compliance
with para 3(iii) of Appendix V. [961E-H,962 A-BJ
H
B. S. Gupta v. Union of India (1st Gupta's case) [1975] Suppl. SCR 491.
referred to.

•
•

A, JANARDHANA v. UNION 941

5:4 The principle of seniority enunciated in Army Instruction 241 of

r 1950 is that· the rule for determining inter se seniority in the cadre of Assistants
should generally be taken as the model in framing the rules of seniority for
other services and in respect of persons employed in any particular grade
A

seniority should as a general rule be determined on the basis of the length of
service in that grade as well as service in an equivalent grade irrespective of
whether the latter was under the Central or provincial government in India or
Pakistan. This was the rule of seniority which would be applicable in the
absence of any other wle specifically enacted for MES class I service. Even a B
plausible contention that the seniority rule enunciated in para 3{iii) of Appen-
dix V of 1949 Rules was the one specifically enacted for . MES· class I service
and this special rule would prevail over the general rule issued in Ariny
Instruction 241 would be of no avail in as much as (1) the rule in para 3 (iii)
gave way when the quota rule was relaxed and (ii) in all the subsequent rules
of 1953, 1961 and 19.62, it was clearly stated that the "principles for deter' c
mining seniority are under consideration". [962 C-A J

6:1 The two fundamental basic assumptions on which the impugned
seniority list was drawn up are wholly untenable and contrary to the relevant
rules. The first assumption that there was a rigid quota rule and that the
recruitn1ent in excess of the ql:lota would be invalid and the. excess recruits D
from either source will have to be.adjusted and regularised in succeeding years,
was probably due to the authorities having been influenced by the observations
in Jai Singhani's case and the two successive B. S. Gupta's cases, all of which
r ha,,e no application to tlie facts of the present case. The second assumption
that there was an inviolable quota rule which could not be relaxed Was due to
overlooking the position that once the quota rule was relaxed, the rota for
confirmation disappeared. In the absence of any other rule coupled with the E
Army Instructions, upto 1968 continuous officiation would be the only available
rule for deter1nining the inter se seniority. Further as far as the n1inimum
educational qualification is concerned promotees and direct recruits are on par
and the promotees cannot be looked upon as persons belonging to an inferior
breed. [963 D-H, 964 A]
F
7. The contention that the individuals likely to be affected by the
decision not being impleaded, the writ petition should. fail cannot be accepted.
' Factually it is incorrect because by order of the High Court, names of respon-
dents 3 to 419 were deleted and in the Supreme Couit submissions were made
by a counsel for them. In the petition as well as in the appeal the relief is
claimed against the Union of India and the concerned Ministry and not againsf
any individual nor any seniority is claimed by anyone individual against G
another particular individual. The contention is that the criteria adopted by
the Union Government in drawing up the impugned seniority list are illegal
and invalid. Therefore, even if technically the dirett recruits were not before
the Court, the petition is not likely to fail on that ground. [966 G-H, 967 A-BJ

Vade Mecum H
It is unfortunate that a very unjust, unfair and inequitable situation
having a demoralising effect on public services probably ensuing from certain
942 SUPREME COURT REPORTS [1983) 2 s.c.R.

rules framed by the Government and the decisions of this Court has emerged.
A Even where the recruitment to a service is from more than one source and a
quota is fixed for each source yet more often the appointing authority to meet
its exigencies of service exceeds the quota from the easily available source of
promotees because the procedure for making recruitment from the market by
direct recruitment is long prolix and time consuming. The Government for
exigencies of service, for needs of public services and for efficient administra-
tion, promotee person easily available because in a hierarchical service one
B
hopes to move upward. After the promotee is promoteS, continuously renders
service and is neither found wanting nor inefftcient and is discharging his duty
to the· satisfaction of all, a fresh recruit from the market years after promotee
was inducted the service comes and challenges all the past recruitments made
before he was born in service and some decisions especially the ratio in
Jai Singhani's case as interpretted in two B. S. Gupta's cases gives him an
c advantage to the extent of the promotee being preceded in seniority by direct
recruit who enters ~ervice long after the promotee was promoted. When the
promotee was proni.oted and was rendt!ring service, the direct recruit may be a
schoolian or college going boy. He emerges from t1ie educational institution,
appears at a competitive examination and starts challenging everthing that had
happened during the period when he has had nothing to do with service. A
m~ndamus issued in Jaisingha11i's case led to a situation where promotees of
D the year 1962 has to yield place to direct recruits of ·1966 and the position
worsened thereafter. In the case in hand, appellant a promotee of September
27, 1962 is put below N. K. Prinza who appeared at competitive examination
in April 1976 i.e. one who came 14 years after the appellant, and it does not
require an intelligent exercise to reach a conclusion that 14 years prior to 1976
Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12
E years and must have been studying in a primary school. Shorn of all se~ice
jurisprudence jargon one can bluntly notice the situ?tion that a primary ,school
student when the promotee was a member of the service, barged in and claimed
+
and got seniority over the promotee. If this has not a demoralising effect on
service one fails to see what other ineq_uitous approach would be more dama-
ging. It is therefore, time to clearly initiate a proposition that a direct recruit
who comes into service after the promotee was already unconditionally and
F without reservation promoted and whose promotion is not shown to be invalid
or illegal according to relevant statutory or non~statutory rules shoq,ld not be
' permitted by an principle of seniority to score a march over a promotee because
that itself being arbitrary would be violative of Arts. 14 and 16.
[968 D-H, 959 A-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 360 of 1980.
G
From the Judgment and Order dated the 15th and 17th May,
1979;of the High Court of Karnataka at Bangalore in Civil Writ
Petition No. 4293 of 1975.
H G. L. Sanghi and A. K. Sanghifor the Appellant.

Abdul Khader, N. C. Talukdar and Mis• A. Subhashini for
Respondent Nos. 1 and 2.
A. JANARDHANA v. UNION (Desai, J.)

j ., P. R. Mridul and H. K., Puri for Respondent Nos. 3 to 11.
A
M. K. Ramamurthi and Jatindra Sharma for Respondent No.
12.

Dr. Y. S. Chita/e and A.K Sanghi for intervener.
B
.
The Judgment of the Court was delivered by
/
DESAI, J. Appellant A. Janardhana filed Writ Petition No.
-- l 4293 of 1979 questioning the validity and legality of the revised
seniority list Ex. 'D' circulated with the letter dated June 14, 1974
to which the revised seniority list Ex. 'C' was annexed and as a
consequence to cancel the panel of promotion dated January 13,
c
1975, drawn-up in respect of 102 officers. A mandamus was sought
directing the respondents to give effect to the 1963 Seniority List
drawn-up on the principle of length of service-continuous officiation
as set out in the notification memorandum dated March 11, 196.5.
A cognate Writ Petition No. 4273 of 1979 by one Manjunatha was D
also heard and disposed of by the Court along with the writ petition
filed by the appellant.
r
The factual matrix in juxtaposition with the relevant rules may
be set out in details because the very narration of chronology of
events would illumine the contours of controversy. E

Appellant joined service_ as Supervisor in the year 1953 in what
is styled as Military Engineering Services (MES' for short). He
came to tbe promoted as Assistant Executive Engineer (Ai:E)1 in
1962. In the seniority list of 'AEE' drawn up in the year 1963 the F
appellant was shown at Serial No. 357. In the revised seniority list
dated June 14, 1974 impugned in the petition, the appellant did not
find a place because consistent with the quota rule on the basis of
which the impugned revised seniority list of 1974 was prepared, the
appellant was surplus and could not find his berth in the seniority
G
list. It is necessary to note an intervening event. One Bachan
Singh and Anr., the two promotees to the post of 'AEE' in the years
1958 and 1959 respectively, filed a writ petition in the High Court
·">-k- of Delhi challenging the appointment of several direct recruits to
\
'Ml!S' on the ground that their appointment was contrary to and in
violation of the rules of recruitment and they were not validly
H
appointed and, therefore, could not become members of the service.
The writ petition was dismissed by the High Conrt of Delhi and the
944 SUPREME COURT REPORTS (1983) t S.C.R.

matter was carried in appeal in this Court. The decision rendered
A by a Constitution Bench of this Court in Bachan Singh & Anr. v.
Union of India & Ors.(') was interpreted by the first respondent to
mean that the direct recruitment, not by competitive examination
but by interview and viva voce test, was valid and such appointments
being in consonance with the rules, the confirination of said direct
B recruits was within the quota of direct recruits in permanent vacan-
cies and was hence valid. The first respondent understood the
decision to mean that there was a quota for recruitment in the
cadre of 'AEE' in 'MES' Class I of 9 direct recruits to 1 promotee
(9:1) since 1951 and the quota must lead to rota for confirmation
and proceeded to redraw the seniority list in 1974 with the startling
c result in respect of the appellant and several persons similarly
situated as hereinabove set out. The appellant in his writ petition
questioned the criteria adopted for preparing revised seniority list
of June 1974 on diverse grounds based on the ratio of the decision
in Bachan Singh's case. Criteria may be extracted from the memo-
D randa covering the seniority list dated June 14, 1974 :

"(a) The inter se seniority of direct recruits and depart-
mental promotees is to be fixed in accordance with
the quota laid down in ME (RPS) Rules 1951 from
time to time. The same quota is to apply both in the
E inatter of confirmation and fixation of seniority.
t

(b) Seniority List of Assistant Executive Engineers is to ·
be prepared upto 1968 and excess departmental pro-
motees who cannot be brought into the cadre have
F to be shown separately and brought in the cadre on
the basis of quota as and when vacancies become
available.

(c) From 1.2.1969, the date on which the rules.became
statutory, the seniority of excess departmental pro-
G motees (Approx 'B') of the !!st is to be regulated ~s
under : •

(i)
..
The seniority of departmental promotees who
H are brought into cadre from 1969 onwards will
count along with direct recruits of the year in

(!) [1972] 3 SCR 898.
A. iANARDHANA v. UNION (Desai, J.) 945

which the promotees are brought, into the cadre
and any service for further promotion to higher
posts. For example a departmental promotee
of 1966, if brought on the incadred list in 1970
will count only the service in the grade of AEE
after 1970 for seniority in that grade for further
promotion as EE.

(ii) All excess prmllotees who are holding higher
appointment will be eligible for consideration
for further promotion on completion of the
requisite service after their adjustment in the
cadre. c
(d) The revised seniority list based on the above decisions
will be subject to the out-come of the writ petition
pending in the Andhra Pradesh High Court and any
other legal pronouncement that may be made in this D
behalf. All promotions based on this seniority list
will also be subject to revision on the availability of
r the judgment in the writ petition. While making
promotions therefore, it may be made clear that these
promotions will be subject to any further decision
of the Court."
E

It would be advantageous to mention th.at the criteria had the
flavour. emanating from tlie reading and understanding of the decision
in Bachan Singh's case. If the understanding or interpretation of
the ratio Bachan Singh's decision is incorrect or contrary to , what F
is. laid down, the unavoidable consequence would be that the senio-
rity list drawn up on such incorrect or misinterpreted ratio would
not only fall but it would have to be quashed. Let us therefore
first refer to the various stages through which relevant rules have
moved leading to the decision in Bachan Singh' s case. There is a 6·'
glut and mass of rules bearing on the snbject and we may briefly
weave through them. '

By notification dated September I 7, 1949, the Ministry of
Defence published Rules styled as Military Engineer Services, Class
I (Recruitment, Promotion and Seniority) Rules (1949 Rules for
short). 'Service' was \!efined to mea11 Military Engineer $ervi~s,
946 SUPREME COURT REPORTS (1983) 2 s.c.R

Class I. Rules 3 and 4 have provided the cornerstone for all coh·
tentions canvassed in this appeal and· may be extracted :

"3. The service (other than the Architect's Service
and the Barrack and Stores_ Service) shall be recruited by
the following methods ;
B
(i) By competitive examination held in India in accor·
dance with part II of these Rules,

(ii) By promotion in accordance with Part Ill of these
c Rules.
\
4. Subject_ to the provisions of Rule 3, Government
shall 4etermine the method or .methods to be employed
for the P!1rpose of filling any particular vacancies or such
vacancies as may require to be filled during any particular
D period, and the number of candidates to be recruited by
each method provided that not more than 10 per cent,
of the vacancies in the service (not being vacancies filled
'I
by prom.otion from · one grade to another within the
service) shall be filled by the method specified in clause
E (ii) of Rule 3 above.

The recruitment was to be from two sources: (i) direct recruit·
ment by competitive examination; and (ii) by promotion in accor·
dance with Part III of the Rules. Rule 4 'confers discretion on the
Government circumscribed by the provision of Rule 3 enabling the
F- Government to determine the method or methods to be employed
for the purpose of filling in particular vacancies or such vacancies
as may be required to be filled during any particular period, and the
number of candidates to be recruited by each method. There is a
proviso to. Rule 4 and it is the subject matter of acrimonious debate
G in the Court. One submission of Mr. P. R. Mridul, learned counsel
for direct recruits was that the proviso is the proviso to sub-rule (ii)
of Rule 3, and it fixes the (juota of 9· to I between direc_t recruits and
promotees. At the other end of the spectrum, the submission was
that it merely provides a ceiling and not an inviolable quota rule.
B We would·examine both the submissions a little while after. Part
II of the Rules makes detailed provision for the competitive exami·
nation to be held in India for selecting direct recruits. Rule 21 to
7? ip. Part I!! oft~e 1949 Rules, pres9ribe qnalijicatjon !lllcl method
"· J/\N/\RDHANA v. UNION (Desai, J.) 947

for recruitment by promotion. One worth noticing is Rule 23 which
prescribes that no individual shall be eligible for promotion to the A
service unless, he would, but for age, be qualified for admission to
the competitive examination under Part II. This would mean that
.except for age all other qualifications incl.uding educational quali·
fication for direct recruits and promotees are the same. There are
5 Appendices to 1949 Rules. Pata 3 in Appendix V provides for
inter se seniority between direct recruits and promotees. Sub para.
B
(iii) of para 3 is relevant and may be extr.acted :

L "(iii) · A roster shall be maintained indicating the order in
which appointments are to be made by recruitment
and promotion in accordl\nce with the percentages
c
fixed for each method of recruitment in the recruit·
ment rules. The relative seniodty of promotees and
direct recruits shall be determined by the dates on
which the vaca.ncies reserved for the direct recruits
and the promotees occur......" D

Though the 1949 Rules were published on September 17, 1949, they
y
were brought into operation by a notification of the Ministry of
Defence dated July 29, f950 with effect from April !st, 1951. 1949
Rules when enacted were admittedly non-statutory in character. E

By the notification dated July 18, 1953 of the Ministry of
Defence, the Rules styled as Military Engineer Service Class I
Recruitment Rules were promulgated. Rules 3 and 4 are in pari
materia with Rules 3 and 4 of the 1949 Rules. Part II of the Rules F
makes detailed provision for the competitive examination and the
Rules in Part'llI deal with appointment by promotion. It was not
made clear ;hether tlie 1953 Rules superseded the 1949 Rules. They
are almost identical save and except for a provision in Appendix V.
Para 3 in Appendix V of 1949 Rules provided for inter se seniority
of direct recruits and promotees, while para 3 in Appendix V of
G
1953 Rules recited_ that 'the principles for determining seniority are
under consideration.' It is, therefore, ·suggested that para 3 in
Appendix V of 1949 Rules was abrogated and fresh principles for
determining seniority were yet to be devised. The contention arising
H
from these two . sets of Rules occupying the same field would in
course of ti~e become worst confounde\l. hr what has l?tien <lone in
1969 but that would come later on, .
948 SUPREJdE COURT REPORTS [1983) 2 S.C.R.

Moving to the next stage, the Ministry of Defence by its noti•
A fication dated January 7, 1961 promulgated statutory Rules enacted
in exercise of the power conferred by the proviso to Article 309:
These Rules were to regulate the recruitment to the Military Engineer
Services, Class I, (1961 Rules for short). These Rules largely relate
to the method to be adopted for direct recruitment, the manner of
holding examination and the persons eligible for entrance to the
B examination. In a way 1961 Rules left rules 3 and 4 of 1949. Rules
and rules 3 and 4 of 1953 untouched, except to the extent provided
in para 8 of appendix IV wherein it is stated that promotions to
the Superior and Administrative posts are dependent on. occurrence
of vacancies in the sanctioned establishment and are made wholly
c by selection in consultation With the Departmental Promotion
Committee and Commission as laid down in the Home Department
office memorandum No. 33/46-Ests(R) dated June 17th, 1946; mere
seniority is considered to confer no claim to promotion. Though
these Rules are styled as Rules for recruitment to Military Engineer
Services, Class I, omits any reference to recruitment by promotion
D is wholly absent yet Rule 3 in Appendix IV restated the position
that the principles for determining seniority are under consideration.
1961 Rules do not even refer tO 1949 Rules, but it may be mentioned
that 1961 Rules were superseded by 1962 rules.

E In 1962, the Ministry of Defence by its notification dated April
27, 1962 in exercise of the power conferred by the proviso to Article
309 framed Rules regulating the recruitment to the Military Engineer
Services Class I in super£ession of 1961 Rules. Both the 1961 and
1962 Rules neither refer to Rule 3 and Rule 4 of 1949 Rules per-
mitting recruitment by promotion and the permissible limit of recruit-
F ment by pron:iotion. 1962 Rules restated in Rule 3 in Appendix IV
lhat the principles for determining seniority are under consideration.
>
i'urther para 8 in Appendix IV was repeated at the .same place as in
1961 Rules.

G· 'By the notification of Ministry of Defence dated April 17,
1965 Rule 7 of 1962 Rules was amended. But it has no relevance
to the point under consideration. Then comes a noteworthy pro-
vision. Rule 3 in Appendix IV of 1962 Rules which provided that
'the principles for determining seniority were under. consideration'
H was •ubstituted as under :

"3. Relative seniority of officers appointed· to. service on
t)le basis of the combined Engineering Services
A. JANAllDIW{A r. UNION (besai, ).)

Examination or otherwise will be determined in
accordance with the orders issued by Government
from time to time."

By the notification of the Ministry of Defence dated February
18, 1967, a further amendment was introduced in 1962 Rules with
with regard to the eligibility of persons who can offer themselves as ·B
·candidates for the competitive examination.

By the Ministry of Defence notification dated February. 25,
1967, non•statutory in character sub-rule (h) was added to Rufe 20
in Part III of 1949 Rules providing reservation of 50% of the perma·
nent vacancies to be filled through direct recruitment after 17th May, c
1963 of graduate engineers who are commissioned in the Armed
Forces on a temporary basis during the· Emergency and are later
released subject to certain conditions therein prescribed.

Then comes the land·mark change of 1969. On February I, D
1969, the President in exercise of the power conferred by the pro-
viso to Article 309 framed and promulgated amendmenis to 1949
Rules styled as Military Engineer Service Class I (Recruitment,
Promotion and Seniority) Amendment Rules, 1969 which came into
force on February I, 1969. Rule 4 was amended by substituting
·'25% of the vacancies' in place of' 10% of the vacancies.' In other ·E
words, the quota between direct recruits and promotees was modi-
fied from 9:1 to 3:1.

We may at this stage notice Army Instruction 241 of 1950.
It provided for seniority of civilian employees in lower cadre. . The F
instruction refers to the order contained in para 2 of the Ministry
of Defence Office Memorandum No. 0240/6362/0· 12 dated !st
September 1949 which was published as an annexure to the instruc-
tion; The instruction is that the rule for determining seniority
amongst Assistants recently devised must be followed as a model.
The mod~! was that in any particular grade seniority as a general G
rule, be. determined on the basis of the length of service in that grade
as well as service in an equivalent grade irrespective of whether the
letter was under the Central or Provincial Government in India or
- 'r
Pakistan.
' H
Having journeyed thto;ugh the maze of Rules, we may turn to
the primary contention raised in this appeal. Before we do so, let

•
!HO SUPIUlidll COURT tlBPoRTS 1198~12 s.c.R..

it be remembered that the appellant is a promotee to AEE in MES cl.
A I of the year 1962 and by the impugned seniority list of June 14, ,-
1974, he does not find his place in the seniority list and is still in
-the surplus list to be accommodated at a future date and Mr. Sanghi
learned counsel for the appellant asserted with some vehemence
that he cannot come into the service till 1989 when it may be time
B for him to retire from the service. In other words after having
rendered service in a post included in the class I, he is hangilJ$ out-
side the service, without finding a berth in service, whereas direct
recruits of 1976 have found their place and berth in the service. j
Thls is the situation that stares into one's face while interpreting ~
the quota-rota rule and its impact on the· service of an individual.
c But avoiding any humanitarian approach to the problem, we shall
strictly go by the relevant rules and precedents and the impact of
the Rules on the members of the service and determine whether the
impugned seniority list is valid or not. But, having _done that we
do propose to examine and expose an extremely undesirable, unjust
and inequitable situation emerging in service jurisprudence from the '>-
D precedents namely, that a person already rendering service as a __
promotee has to go down below a person who comes into service
decades after the· promotee enters the service and who. may be a ~
schoolian, if not in embryo, when the promotee on being promoted
on account of the exigencies of service as required by the Govern-
E ment started rendering service. A time has come to recast service
jurisprudence on more just and equitable foundation by examining
all precedents on the subject to retrieve this situation.

The contentions canvassed before the High Court at the time
F of hearing this group of peiitions are (i) what is the character of
'1949 Rules' when they were enacted and whether and when they
acquh'.ed statutory character ?; (ii) In making recruitment in the
manner it was done till '1949 Rules' acquired statutory character,
was there a violation of quota rule assuming that there was quota
prescribed in Rule 4 of '1949 rules' ?; (iii) If Rule 4 of' 1949 Rules'
G
prescribed a quota of 9: 1 between direct recruits and promotees,
had the Government the power to relax the quota rule when necess•
ary or under certain circumstances ?; (iv) What if any, is the effect
on the status of tjie promotees promoted to the service in relaxation
H of the quota rule?; (v) whether such promotees became the members
of the service so as to be assigned a place in the seniority list ?;
(vi) If prior to '1949 Rules' acquiring statutory character in 1969
_promotions were made in excess of the quota, which principle .
•
. A. iANARDHANA v. UNION (besal, ).) 951
governed determination of inter se seniority of later direct recruits
with earlier promotees ?; (vii) If 1963 Seniority List when drawn• A
up was according to the Rules then in force, could it_ be rendered
ineffective by a revised .rule for determining inter se seniority devised
in 1974 and given retrospective effect. These and the connected
questions call for answer in this appeal.

We were often reminded in the course of hearing that the
Court is not scribbling on a clean slate and that some of the con-
tentions canvassed in this appeal are concluded by a decision of the
Constitution Bench of this Court in Bachan Singh & Anr. v. Union· of
India & Ors.(1) It must be confessed that in Bachan Singh's case
(supra), various rules to which we have drawn attention in the earlier c
part of the judgment came in for consideration by the Constitution
Bench. Therefore, both the sides extensively referred to the various
observations and conclusions recorded in -the decision and it is
- incontrovertible that this decision is binding on us and therefore,
the contentions canvassed before us will have to be answer¥d within
, .
. the,parameters of the decision of the Constitution Bench. To steer
D
clear of a possible unintended transgression of this binding decision,
it is necessary to set out in some details the ratio of the decision of
y - the Constitution Bench in that case 7 ·

Bachan Singh and Anr. were prC!moted in the years 1958 and E
1959 respectively to ABE in MES Class I Some of the respondents
in that case were appointed by direct reeruitment after they had
appeared in the competitive examination, but all the respondents
were appointed to the service in the years 1962, 1963 and 1964. The
first contention raised on behalf of the promotee-appellants was that
the recruitment of some respondents as direct recruits not as the
re§ult of competitive examination as provided in the Rules but by
mere interview by the Union Public Service Commission was con-
trary to and_ in violation of the relevant Rules and thus the recruit·
ment being invalid they did not become members of the service. ii:
was said tMt if they are not members of the service, they cannot
claim seniority over promotees the petitioners in that case. .The -
second contention was that such of the respondents who were
recruited by interview and as a result of the competitive examination
.after the ·appellants_ had 'been promoted· to the service, are not
entitled to be confirmed in permanent posts before the appellants. II

(I) (1972) 3 SCR 898,
. stit'REMB COURT REPoRTS it983) 2s.c.R.
These contentions necessitated focussing attention on the character
A ·of '1949 Rules'. After briefly reviewing the history of the rules from
1949 to 1969, the first important conclusion of the Court is that the
'1949 Rules' acquired statutory character in 1969 because as a result
_ of 1969 amendment,· the· entire body of rules of Class I became
statutory rules by Incorporation. The Court then referred to rules
.j 3 and 4 of' 1949 Rules' when they came into force in 1951 and
noticed that the recruitment to MES Class I could be made from
two sources only, namely, by competitive examination held in India
in accordance with Part II of the Rules and by promotion in accor·
ddnce. with Part HI of the Rules. As set out in earlier portion of
the-Judgment, Part II makes extensive provisions ·for holding exami·
c nation including the eligibility for admission to . the same. It was
conceded in Bachan Singh' s case that some of the respondents were
directly recruitetl by interview by ·tbe Union Public Service Com·
mission. In other words, some of the respondents in that case had
not appeared at competitive examination ar required by Rule 3.
The rul~ did not permit direct recruitment by mere interview by
D the Union Public Service Commission. The question arose : What
was the status of such direct recruits recruited in utter violation of
· Rule 3 ? Promotee-petitioners contended that such direct recruits
had not become members ·of the service. Repelling this contention,
the Constitution Bench held as under :

"The appointments to Class I Service by interview
· Were made by the Government in consultatipn with the
Union Public Service Commission. The selection . was
made by the Union Public Service Commission. The
F appointments by competitive examination proved fruit• ··~
less. The country was in a state of emergency. Appoint·
ment and selection by. interview was the only course
possible. It could not be said that all appointments
should have been made by promotion. That would be
not in the interest of the service. The service Rules
were administrative in character. The Government re·
'taxed the Rules. The amendments of the rules in l967
recognised the reality of the situation of appointment by
interview. That is why the 1967 amendment recognised
that 50 per cent of "the direct recruits by competitive/
H
ad hoc appointment were to be reserved for graduate
engineers who were commissioned in the Armed Forces
ou. a temporar~ basis."
A. tANARl>HANA '· PNION (besai, J.)

At an earlier stage, the Court held that during the years 1962, 1963
and 1964 particularly and until the year 1969, the Class I Service A
Rules were. not statutory in character. The Union Government
relaxed the Rules both in regard to recruitment by interview and
in regard to the quotas fixed . by the Rules for direct recruitment
and recruitment by promotion to Class I Ser\.ice. Keeping in view
the contention .raised on behalf of the appellants before us that
Rule 4 does not. presq~ibe a quota to be invariably followed, b~ B
merely a ceiling and the· contention of Mr. P. R. Mridul for some
of the direct recruits that rule 4 prescribes an invariable quota any
violation of which would render the appointees in excess of quota
invalid, we would proceed as held in Bachan Singh's case that rule
4 prescribes the quota. If the contention was open to consideration
c
by us, we have our own reservations about the same. However, as
it has been held iu-ll binding. de_cision that Rule 4 did prescribe a
quota rule of 9: I between direct recruits and promotees, we would
proceed on that basis .. The Court then noticed that in 1962, there
was a state of emergency. Engineers were immediate!y· required to D
fill tl\e temporary posts in Class I Service. To meet the emergency
the Union . Government in consultation with the Union Public
Service Commission decided to recruit candidates by advertisement
f and selection by fr1terview·only by the Union Public Service Com·
mission. The Government with the aid of selection and interview
by the Union Public Service Commission directly recruited some E
respondents to Class I Service in the years 1962, 1963 and 1964.
The candidates were selected after viva·voce examination.' · The
Court then proceeded to notice the vacancies that obcurred between
1951and1971 and concluded that it is because of the conditions
of emergency that the quota for filling the temporary posts was F
ignored both for departmental promotees and ~irect recl'\'itment.
After taking this view, the Court proceeded to answer the contention
·whether the recruitment of some of the respondents· ;n that case by
a method not permitted by rules was legal and valid which necessi·
tated the Court considering and answering the question as to
whether the Government had the power to make recruitment . in
• relaxation of the Rules ? In this connection; the <;:ourt categorically
: conclnded as under :

"It is apparent that during the years 1959 to 1969,
there was a relaxation in the observance of rules in the
case of appellants and the other departmental promotees.
The UiliQn. Government all throughout acted in consul-
, \ation with the Union Pulilic service ComJiligsiott. thci
SUmME COURT lU!POaTS h983l i s.c.R..
'
departmental promotees gained considerable advantage
A by relaxation of the rules. The direct recruits were not·
shown any preference at all, 'fhe proportion of confir·
mation of departmental promotees and of direct recruits
by interview was 1:1.". /·

B The Court then upheld the appointment of those direct recruits
'Who were appointed after interview 'by the .Union Public Servioe
Commission by holding that that was done in relaxation of the
rules both as to competitive examination and the promotions were
given after relaxing the quota rule. The ·Court held that direct
recruits who wer.e appointed by interview fall within the class of .·~
c direct recruits'. ·

What emerges from the decision in Bachan Singh's case?
'1949 Rules' and the subsequent amendments thereto acquired ·
statutory flavour. in 1969 and '1949 Rules became statutory in
D character by incorporation· only ·in 1969 and till then they were
mere administrative instructions. Rule 3 of' 19'49 Rules.' permitted
recruitment only from two sources i.e. by competitive 'examination
.and !:>Y promotion. Rule 4 permitted the. Government to fill in any
particular· vacancies or such vacancies as may require to be filled
E during any particular period, the. method or methods to be employed
for the purpose of filling any particular vacancy and the number of
.candidates recruited by each method. Rule 3 provides for the
sources of recruitment, namely, direct recruitment and promotion.
Rule 4 confers discretion on the· Government either to fill the
vacancies and from which service subject to the proviso to Rule 4
F whicq prescribes, according to Bachan_ Singh's case. a quota, Rule .
4 which was introduced in 1967 conferred power on t\le Union
Government for the reasons to be recorded in · writing and after
.consultation with the Union Public Service Commission -to relax
all or any of the rules with resp~ct to class or category of persons/
posts. As the '1949 Rules' were non statutory in character till 1969
G and this Court read power of relaxation is in '1949 Rules' till
1969, the power of relaxation was exercised during 1961•
1962-1963 because there was emergency during thi~ period. The
Government was in need of large number of Engineers and therefore,
had to make recruitment by a method not prescribed by the rules
in relaxation of the rules, and. large number of persons had to be
give11 departmental promotion with the same end in view which
woul\! amount to relaxat10n of.the quota rule. This Court in terme
A. !A:t-IARDHANA v. Ul<"ION (Desai, J.) 9~5

held that the Government had the power to relax 1949 Rules till
they acquired statutory character in 1969 and Government did make A
recruitment from both sources· after exercising the power to relax
rules. This ratio of the decision is binding on us.

Even apart from this, in the statement of case filed in this
case on behalf of the Union of India, it is conceded that in view B
. of the exigencies of service relaxation was made in the matter-of
promotion tq the cadre of Assistant Executive Engineers between
1951 and 1963. Rule 24 enabled the Government to make recruit·
ment in relaxation of the rule by making an order to that effect in
writing and after consulting the . Union Public Service Commission.
Strictly speaking Rule 24 is hardly helpful as the rule· was introduced c
in 1967 and we are concerned with years 1959-61-62-63. We asked
Mr: Abdul Khader, learned counsel for the Union oflndia whether·
orders were made at the time of. each rec~uitment for making recruit·
ment by relaxing the rules and if such orders were made after con-
sulting the Union Public Service Commission and if there are such .
orders in existence, same may be produced. Pursuant to this querry,
D
an affidavit was filed by Lt.· Col. S. C. Sethi, Staff Officer Grade I
(Personnel) dated December 7, 1982. This affidavit· does not satisfy
t the query and hardly illumines th~ blurred area. It merely refers
to the variation in the quota, namely, it was raised from 9:1to1:1 .
upto the end of 1963 and it was again restored to 9:1 after 1964 and E
-the statutory rules of 1969 revised the quota. To this :affidavit,
some correspondpnce is annexed which hardly throws any light on
the question raised by the Court.

If rule 3 provided methods of recruitment indicating the sources
from which re~ruitment could be made .and if rule confers discretion F.
on .Government to make recruitment from either · source because
Rule 4 opens with a limitation, namely, that it is subject to Rule 3,
now if as held in Bachan Singh's case '1949 Rules' while prescribing
the quota conferred power on the Union Government to make
recruitment in relaxation of the rules, it is implicit in this power to G
make recruitment in relaxation of the quota rules and it Is admitted
that because of the emergency and because of the exigencies of
_ service, recruitment wu made in rellixation of the rules. Now, where
the rule provides for recruitment from two sources and simultane•
ously prescribes quota, unless there is power to relax the rule as
H
has been held in a catena decisions, any recruitment in excess of the
quota from either of .the sources would be illegal an4- the excess
recruits unless they find their place by adjustment iii subsequent
- . SUPREME COURT REPORTS · (19MI 2s.c.il.
years in the quota, would not be membtrs of the service. In
A S. G. Jaisinghani v. Union of India & Ors.(1) a Constitution Bench
of this Court held as under.:

"We are accordingly of the opinion that promote;es
from Class II, Grade III, to class I Grade II Service in
exces~ of the prescribed quotas for each of the years ! 951
B to 1956 and onwards have been illegally promoted and
the appellant is entitled to a writ in the nature of manda-
mus commanding respondents 1 to 3 to adjust the senio-
rity of the appellant and other officers similarly placed
like him and to prepare a fresh seniority list in acc~r
c dance with law after adjusting the recruitment for the
period 1951 to 1956 and onwards in accordance with the
quota rule prescribed ..... .,

In reaching this conclusion, the Court held that the absence
D of arbitrary power is the first essential of the rule of law upon which
our whole constitutional system is based. The Court observed that
in a system, governed by rule of law, discretion, when conferred
upon executive authorities, must be confined within clearly defined
limits. The view was to some· extent re-affirmed in B. S. Gupta v. ·
Union of India & Ors.(') and B. S. Gupta eteo etc. v. Union of India &
E Ors. etc. etc.(8) But this result will not follow where even thongh
the rules prescribe sources of recruitment, methods of recruitment
, and quota, if the very rules simultaneously confer power on the
Government to make recruitment in relaxation of the rules, Unless
mala !ides are alleged and attributed. Where rules thus confer a
.F discreti9n on the Government to relax the rules to meet with the
exigencies of service, any recruitment made in_relaxation of the ·
·rules.would not be invalid. This is no more res·integrli in view of
the decision of this Court in N. K. Chauhan & Ors. v. State of
.Gujarat & Ors.(') · In that case, a resolution of the Government of
G Bombay dated July 30, 1959 'directing .that, as far as practicable,
50 percent of the substantive vacancies dccuring in the cadre. with
effect from !st January 1959 should be filled in by nomination of
candidates to be selected in accordance with the RJdes appended

H (1) [1967] 2 S.C.R. 703 at 718,
(2) [19751 Suppl. S.C.R. 491,
(3) [19'51 1 S.C.R. 104,
.(4ic f 1977) 1 SCR 1037.
A. 1ANAllDHANA r. UNION (>Desai, J.)

herewith, came in for consideration of this Court. "The contention
was that the Resolution prescribed a quota· and the Government had A
no discretion to make recruitment in relaxation of the quota and
therefore, any recruitment made in excess of the quota in view of
the decision in Jaisinghani's case and 2 B.S. Gupta's cases would be
invalid. . Repelling this contention and distinguishing both tile
decisions in Jaisinghani's case and 2 B.S. Gupta's. cases, the Court B
observed that the sense of the rule is that as far as possible the quota
system must be kept up and if not practicable promotees in plaoe of
direct recruits or direct recruits in place of promotees may be induct-
ed ajlplying the regular procedures without suffering the seats to lie
indefinitely vacant.' After examining the facts of the case, the Court
held that the State had tried as far as practicable to fill 50% of the c
sbbstantive vacancies from the ·open market, but failed during the
years 1960-1962 and that therefore it was within its powen under
the relevant rule to promote mamlatdars who, otherwise, complied
with the requirement of efficiency. It thus becomes crystal clear
that when recruitment is from two independent sources, subject to
prescribed quota, but the power ·is conferred on the Government to
make recruitment in relaxation of the rules, any recruitment made
contrary to quota rule would not be invalid unless it is shown that
i the power of relaxation was exercised mala fide. That is not tbt
contention here, nor any such contention was voiced in Bachan
Singh's case. In Bachan Singh's case the Court has extensively · Ii'
referred to ·the emergency situation in the market ofrecruitment of
·engineers between 1959 and 1969 and that fact sit11ation hot only
was not controverted but conceded before us. It is this emergency
and the dire need of urgently recruiting engineers, which led the
Government to make recruitment in relaxation of quota rule by
fore·going the competitive examination · and promoting subordinate F
ranks to Class I service. Petitioners and similarly situated persons
were thus promoted to meet the dire need of service in relaxation
of the quota rule.

.G
Now if recruiment contrary to Rule 3, namely, by interview
by the Union Public Service Commission, which is not the recog-
nised mode of reoruitment, is held valid in Bachan Singh's case on
the ground that it was done in relaxation of the rules, it must follow
-as a corollary that the same emergency .compelled the Government
H
to recruit by promotion engineers to the post of AEE Class I in
excess of the quota by exercising the power of relaxation and such
recruitment ipso facto would be valic.\.. The promot~es being \!'.alidly
[198312 s.c.11..

promoted as the quota rule was relaxed, would become tlie members
ofthe service. Whether the vacancies were in the permanent strength
or in the temporary dadre is irrelevant because none of them is re·
verted on the ground that no more vacancy is. available. Appellai;i.t
and those similarly situated were recruitell by promotion as provided.
in Rule 3(ii) and it must be conceded that the recrnitment by pro·
B motion during these years.was in excess of the. quota as provided in
Rnle 4. But the recruitment having been done for meeting the
exigencies of service by relaxing the rules including the quota rule,
the promotion in excess of quota would be valid. In this connection,
it may be recalled that the expression 'se!vice' has been defined to
mean Military Engineering Service Class I. The rules are silent on
c the question of the strength of the service. Keeping in view the
exigencies of service and the requirements of . the State, temporary
posts would be a temporary. addition to the strength of the cadre,
unless it is made clear to the contrary that the. temporary posts are
for a certain duration or the appointments to temporary posts are
of an ad hoc nature till such time as recruitment according to rules
D is made. In the absence of any· such provision, persons holding
permanent posts and temporary posts would become the members
of the service provided the recruitment to the {emporary posts is
legal and valid: Once the recruitment is legal and valid, there is no
difference between the holders of permanent posts and temporary
.E posts in so far as it relates to all the members of the service. This
clearly follows from the decision of this Court in S. B. Patwardhan
. & Ors. 'etc. etc. v. State of Maharashtra Ors.,( 1} that there is no urii·
versal rule, either that a cadre cannot consist of both permanent' and
temporary employees or that it must consist of both. That is pri·
marily a matter of rules and regulations goyerning .the particular
service in relation to which the qnestion regarding the composition
of a cadre arises. '1949 Rules' throw no light on this aspect and
therefore, if the recruitment is made from either of the sources and
-
is otherwise legal and valid, persons recruited to temporary posts
would nonetheless be members of the service.
G
The High Court while ret1dering the. judgment under appeal
unfortunately did not examine this aspect even though veheiaently
argued, with the result that the petitions were again set down for
H decision on a memo filed by· the learned counsel on behalf of the

\1) p977j 3 S.C.R. 775 a.t 793,
A. JA N.Al!DHANA V. UNION (D6811i. J.)- 959

present appellants in the High Court on the very next day of the
judgment informing the Court that several important contentions A
urged by him during the course of arguments at the hearing of the
· writ petitions, have not been noticed by the Court in its judgment
dated May 15, ·1979, One such contention was that Union of India
in its statement of case had conceded that as direct recruits were
not available during ·that period, even though the qualification of B
competitive examination for direct recruits was completely relaxed
• 11nd a mere interview by the Union Public Service Commission was
considered sufficient, large number of persons from subordinate
·ranks had to be given promotion but this aspect was not examined
by t11e Court. Repelling this submission, the High .Court observed
\hat the learned counsel was not able to point out any express c
admission 'to that effect in tlie statement of objections filed on behalf
of the Union Government and the averment. in Exhibit 'F' that there
has been a relaxation from time to time in the observance of the
said rules by the Government in consultation with Union Public
Service Commission to meet t~e emergent requirements· of the
I)
Service, was not sufficient to permit an inference sought to be drawn
as desired by the learned counsei:· With respect, the High Court ·
was in error in approaching the matter from this angle. In fact,
1 before the High Court rendered · its decision, the Judgment of the
Constitution Bench in Bachan Singh's case was reported and as
pointed out by us, this Court specifically held that the recruitment E
from both the sel"Vices was made in relaxation of the rules. And in
the statement bf case filed ih this Court, there is a specific admission
to tl)at effect. We are therefore -Of the view that the High Court
was in error in rejecting this contention.

F
The next question is, on what principle then in force inter se
seniority of promotees and direct recruits recruited to service in
re.laxation of 1949 Rules including the quota rule was to be deter-
mined and how they were to be integrated in the cadre of AEE for
fllrther promotion to the cadre of Executive Engineers.
G
The appellant has impugned the seniority list prepared by the
Union Government on . June 14, 1974. Prior to the impugned
seniority list, a seniority list of AEE was .drawn up in the year 1963
jn which the place of the present appellant was at serial No. 357. H
There was anQther seniority list drawn up in the year 1967 in which
the appellant found .his place at serial No.. 234. Then came the
decision of t4e <;onstit11tio!\ Bench in JJaqh"! Sin~h's p,is~ whereupol}
8UllilBMB COURT B.lil'Oll.TS : (1983) 2 S.C.\\.

the Union Government set .aside the two aforementioned seniority
list and drew up a fresh . list on the ·criteria drawn from th1
decision in Bachan Singh's case as set out in the earlier portion of i
this Judgment. In this seniority list, appellant did not find his place
because he was still surplus in 1974 seniority" list and he was hanging
out of the service (Trishanku) because he was pushed down after
B applying the quota from the date of the· constitution of the service
itself in 1951. The traumatic effect of this approach can be gauged
by merely pointing out that the appellant who was promoted in the •
year 1962 as AEE and has held the !!_Ost un-interruptedly till today
would be junior to the direct recruits of 1976, 1977 and 1978. If
unfortunately, the law is to that effect, nothing can be done. Could
c the law be that unjust? Law being no respector a person must
take its own course. But is that the law ? Or the approach overlooks
a vital aspect which has a bearing on the point.

D The contention of the Union Government is that the earlier
seniority lists of 1963 and 1967/68 were not drawn up accordini
to any particular principle. In para 4 of the statement .of the case
of the Union Government it is averred that 'seniority list drawn
before 1973 were not based on any set rules but were prepared
provisionally on the basis of the then available rules to regulate the
E
functioning of department.' This statement apart from being self
contradictory to some extent, is misleading and would not be borne
out by reference to the relevant rules 011 the subject.

It is a well recognised principle of service jurisprudence that
any rule of seniority has to satisfy the test of equality of opportuuity
in pµblic service as enshrined in Arti.cle 16. It is an equally well
recognised ·canou of service jurisprudence that in the absence of any
other valid rule for deterqiining inter SB seniority of members
G belonging to the same service, the rule of continuous officiation or
the length of service or the date of entering in service and continuous
uninterrupted service thereafter would be valid and would satisfy
the tests of Art. 16. However, as we would presently point out, we
.need not fall back upon this geueral principle for determ;ning inter
H se seniority because in our view there is a specific rule governing
inter se seniority between direct recruits and promotees in MES
Class I Service, and it was in force till 1974 when the impugned
seniority list was drawn up.
A. JANA!.D~NA v. UNION (Desai, J.) %1

In the '1949 Rules' which came into force on April I, 1951,
a provision was made'for determining inter se seniority between A
direct recruits and promotees. In para 3(iii) of Appendix-V of
'1949 Rules' it was provided that a roster shall be maintained indi-
catint; the order in which appointments are to be made by direct
recruitment and promotion in accordance with the percentages fixed
for each method of recruitment in the recruitment rules. The rela-
tive seniority of promotees and direct recruits shall be determined
B
by the dates on which the vacancies reserved by the direct recruits
and the promotees occur. It would appear at a glance that this
rule was related to the quota of 9: 1 between direct recruits and
promotees prescribed in rule 4. A combined. reading of rule 4 and
para 3(iii) of Appendix V would clearly show that a roster has to be c
maint'ained consistent with the quota so that the relative inter se
seniority of promotees and direct recruit be determined by the date
on which vacancy occured and the vacancy is for the direct recruit
or for the promotee. If quota prescribed by rule 4 was adhered to
· or was inviolable, the rule of seniority enunciated in para 3(iii) of
Appendix V will have to be given full play 'and the seniority list.has D
to be drawn in accordance with if But as pointed out by this Court
in Bachan Singh's case during the years 1959, 1969 and especially
during 1962, 1963 and 1964 on account of adverse market conditions.
for recruitment of engineers, the Government had to be make re-
cruitment in complete relaxation of rules 3 and 4 'including the E
relaxation of the quota rule. As quota rule was directly inter-related
with the seniority rule, and once the quota rule gave way, the
seniority rule enunciated in para 3(iii) of Appendix V became wholly
otiose and ineffective. It is equally well recognised that where the
quota rule is linked with the seniority rule if the first breaks down
or is illegally not adhered to giving effect to the second would be F
unjust, inequitous and improper. An identical situation was noticed
by this Court in First B. S. Gupta's case wherein this Court while
rejecting the contention of the promotees that the quota rule and
the seniority rule qeserved to be independent of each other held that
with the upgrading of the large number of posts and the appoint-
G
ments to them of promotees, the quota rule collapsed and with that
the seniority rule also. Therefore, once the quota rule was wholly
relaxed between 1959 and 1969 to sujt the requirements of service
and the recruitment made in relaxation of the quota rule and the
minimum qualification rule ·.for direct recruits is held to be
II
valid, no effect can be given to the seniority rt1le enunciated in para
3(iii),_which was wholly inter-linked with the quota rule ,and cannot
962 SUPREME COURT REPORTS [1983] 2 s.c.R,

exist apart from it on its own strength. This is impliedly accepted
A by the Union Government and is implicit in the seniority lists pre·
pared in 1963 and 1967·68 in respect of AEE. because both those
seniority lists were drawn up in accordance with the rule of seniority
enunciated in Annexure 'A' to Army Instruction No. 241 of 1950
dated September 1, 1949, and not in compliance with para 3(iii) of
Appendix V.
B
The Ministry of Defence issued Army Instruction No. 241 of
1950 styled as 'Seniority of civilian employees in lower formations',
which provides that in accordance with the orders contained in para
2 of Ministry of Defence O.M.No. 0240/6362/D-12 dated September
c I, 1949 published as. Annexure 'A' to this Instruction, seniority of
persons employed in a particular grade is to be determined as indi·
cated herein. Annexure 'A' reproduced the .rule of seniority which
was then followed as a model in the grade of Assistant which had
beeri adopted by the Ministry of Defence. The principle of seniority
therein enunciated is that the rule for determining inter se seniority
D in the cadre of Astistants should generally been taken as the model
in framing the rules of seniority for other 'services and in respect of
persons employed in any particular grade seniority should as a
general rule, be determined on the basis of the length of service in
that grade as well as service in an equivalent grade irrespective of
E whether the latter was under the Central or Provincial Government
in India or Pakistan. This was the rule of seniority which would be
applicable in the absence of any other rule specifically enacted for
MES class I service. It could have been ilr ged with confidence that
the seniority rule enunciated in part 3(iii) of Appendix V of '1949
Rules' was the one specifically enacted for MES Class I service and
F t]:te special rule would prevail over the general rule issued in Army
Instruction No. A.I. 241 of 1950. But as pointed out earlier, the l
rule in para 3(iii) of Appendix V gave way when the quota rule was
relaxed: This is recognised by the Ministry of Defence when while
enacting '1953 Lules', a provision was made in p~ra 3 of Appendix
G' V that the principles for determining seniority are under considera·
tion. Assuming that the rule of seniority of para 3(iii) of Appendix
V of '1949 Rules' held the field, it appears to have been abrogated
by the '1953 Rules' because a clear pro;vision is made that principles
for determining seniority are under consideration. Similar situation
H is recognised in '1961 Rules' which to some extent imparted a statu·
toryflavourto'1949Rules'. In para 3 of Appendix JV.of'l961
Rules' it was stated that . principles for determining seniority of
A. JANARDHANA v. UNION (Desai, J.) 963

members of the service meaning Military Engineer Services Class I
are under consideration. This position was reiterated when '1962 A
f Rules' were enacted in relation to the service. In Para 3 of Appendix
IV of '1962 Rules' it is reiterated that the principles for determining
seniority are under consideration. It is nowhere suggested that
till the decision in Bachan Singh's case, any other rule for determin·
ing inter se seniority was prescribed.
B

That takes us to the impugned seniority list of 1974. On June
14, 1974, seniority list of AEE was circulated. The preamble to the
seniority list sets out the criteria on which inter se seniority of
members is determined. Amongst other things, it states that the c
inter se seniority of.direct recruits and departmental promotees is to
be fixed in accordance with the quota laid down in '1949 Rules'
which came into force on April 1, 1951. It further recites that the
same rule for determining seniority list is to be applied in both the
matter of confirmation and fixation of seniority. Therefore, it
clearly transpires tha.t the seniority list is drawn up on the basis of D
fixed quota as enunciated in rule 4, that is, 9: 1 direct recruit, pro··
motee, revised between 1959 and 1963 to 1:1 and again restored to
9:1from1964. The 1974 seniority list would be without anything
more invalid, as it proceeds on the assumption that there was a
rigid quota rule arid that the recruitment in excess of the quota E
would be invalid and the excess recruits from either source will have
to be adjusted and regularised in succeeding years. Probably, the
authorities concerned while drawing up the seniority list were
influenced by some of the observations in Jaisinghani's case and the
two successive B. S. Gupta's cases, all of which were clearly distin·
'•-< guishable and will have. no application to the facts of the present F
case. Another error that has crept in prescribing the criteria on
which the impugned 1974 seniority list is founded, is the assumption
that there was an inviolable quota rule ll'hich could not be relaxed.
The second criterion recites that seniority list of Assistant Executive
Engineers. is to be prepared upto 1968 and excess departmental
G
promotees who cannot be brought into the cadre have to be shown
separately and brought into the cadre on the basis of quota as and
when vacancies become available. As clearly brought out herein·
before, the recruitment was made in relaxation of the quota. Once
the quota rule was relaxed, the rota for confirmation disappeared. H
In the absence of any other rule coupled with the Army Instruction
upto 1968 continuous officiatiou would be the only available rule
for determining the inter se seniority. And it may be recalled th~\
964 SUPREME COURT REPORTS (1983] 2 s:c.R.

both the 1963 and 1967 seniority lists were drawn up' in accordance
with that principle. Thus the two fundamental basic assumptions -r
on which the impugned seniority list was drawn up are wholly invalid
and contrary to the relevant rules, and any seniority list based
thereon must fail. But this conclusion alone would leave the
matter again in the hands of the first respondent with a fresh exercise.
It is therefore necessary to proceed further and determine on what
8 basis the seniority list of AEE was to be drawn up upto 1969, when
the '1949 Rules' became statutory according to the decision in Bachan
Singh's case.

Between 1959 and 1969 and especially during the yeats 1962,
c 1963 and 1964 and some subsequent years, the Government consis·
tent with its requirements and exigencies of service made recruit·
men! including recruitment by promotion in relaxation of the '1949
& subsequent rules' which the Government undoubtedly had the
power to do. A good number of persons were so promoted.
The direct recruits enjoyed comparatively greater benefit in that they
J)
entered service avoiding a competitive examination, which the re·
quired to be held and through which alone direct recruits could enter
service. Equally a good number of persons entered MES Class I
through the comparatively easy and highly subjective test, namely,
interview. Therefore, it cannot be gainsaid that a considerable
E number of direct recruits derived the advantage of . the power of
relaxation of rules exercised by the Union Government. In Bachan
Singh's case, this Court also has rightly observed that some depart-
mental promotees also obtained advantage of the same. It is not
necessary for us to consider comparative advantage. The super-
vening consideration was the exigencies of service of which the best
judge, as recognised in Bachan Singh's case, is the Government. It
may also be made clear that the promotees were not less qualified
then direct recruits. They have to meet the same rigorous test of
qualifications save and except the qualification as to age. This
becomes abundantly clear from para 3 of rule 23 of '1949 Rules'
which provided for appointment by promotion. Rule 23 provided
that 'no individual shall be eligible for promotion to the service
unless he would, but for age, be qualified for admissiou to the
competitive examination under Part II of these Rules, and satisfies the
Commission that he is in every respect suitable for appointment to
the service.' Part II contains provisions prescribing eligibility
criteria for taking the competitive examination. Amongst others, it
provided minimum educational qualification of an Engineering degree,
A. JANARDlIANA v. UNION (Desai, J.)

Therefore, as for as the minimum 'tducational qualification is con-
-,- cerned, promotees and direct recruiis are on par. One need not A
therefore, look upon promotees as . persons belonging to an inferior
breed. The promotees were promoted by ihe Government to man
its services keeping in view the exigencies of service and non-avail-
ability of direct recruits as held in Bachan Singh's case and as
admitted before us. . And while giving promotion, it was - not even
for a moment suggested that the promotions are ad hoc or till such
8
time as direct recruits are available or for a limited period. Therefore,
the promotions were regular promotions, may be ·to the temporary
posts which was a temporary addition to the strength of the service.
But to all intents and purposes, the promotion of the promotees
during this.period was a regular promotion and· the promotees have c
held the posts uninterruptedly for all these years meaning thereby
that it could never be said that posts were not available. Even then
by the impugned seniority list, 1962 promotee is hanging, outside
the cadre and the list drawn up on such an illegal and invalid
criteria has led to such a startling result that is 1962 promotee does
not find his berth in service even in 1974.

The next question is wheiher 1963 seniority list and 1967
seniority list were valid when drawn up. As pointed out earlier,
the rule of quota enunciated by para 3(iii) of Appendix V of '1949
· Rules' has ceased to be of auy legal efficiency till 1969. The Army E
Instructions of September 1, 1949 directed seniority list to be drawn
up in accordance with the principle of continuous officiation. In
the absence of any other valid principle, seniority determined on the
basis of continuous officiation is valid because it satisfies the test of
Art. 16. There is nothing to suggest that 1963 and 1967 seniority
~-
lists were provisional or were likely to be re-drawn: Therefore till
F
the 1949 Rules acquired statutory ·character in 1969, the seniority
lists of 1963 and 1967 in respect of AEE were quite legal and valid
and were.drawn up on the basis of the principle which satisfies the
test of Article 16.
G
The question is whether a new principle for determining inter se
seniority evolved in 1974 could be retrospectively applied from 1951
thereby setting at naught all previous seniority lists validly drawn
up. lt is open to the Government to prescribe principles for
determining inter se seniority of persons belonging to the same H
service or cadre except that any such principle must meet the test
of Art. 16. It is equally open to the Government to retrospectively
966 SUPREME COURT llEPORTS l1983l 2 s.c.il.
revise service rules, if the saiie does not adversely affect vested
A rights. But if the rule for determining inter se seniority is revised-r I.-
or a fresh rule is framed, it must be constitutionally valid. The
criteria on which 1974 seniority list is founded are clearly ille&al and
invalid and this stems from a misunderstanding and misinterpreta-
tion of the decision of this Court in Bachan Singh's case. It also
B overlooks the character of the appointments made during the period
1959 to 1969. It treats valid appointments as of doubtful validity.
It pushes down persons validly appointed below those who were
never in service and for · reasons which we cannot appreciate, it is
·being made effective from 1951. · In our opinion, there was no .
justification for redrawing the seniority list affecting persons recruited
--Z.-
c or promoted prior to 1969 when the rules acquired statutory char-
acter. Therefore, the 1974 seniority list is liable to be quashed and
the two 1963 and 1967 seniority lists must hold the field.

At this stage, we must briefly deal with some technical con-
tentions of minor importance.
D
It was contended that those members who have sccfred a march
over the appellant in 1974 seniority list having not been impleaded
as respondents, no relief can be given to the appellants. In the writ
petition filed in the High Court, there were in all 418 respondents.
Amongst them, first two were Union of India and Engineer-in-Chief,
E Army Headquarters, and the rest presumably must be those shown
senior to the appellants. By an order made by the High Court, the
names of respondents 3 to 418 were deleted since notices could not be
served on them on account of the difficulty in ascertaining their
present addresses on their transfers subsequent to the filing of these
F petitions. However, it clearly appears that some direct recruits led
by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and
had made the submissions on behalf of the directs. Further any
-
application was made to this Court by 9 direct recruits led by Shri
T. Sudhakar for being impleaded as parties, which application was
G · granted and Mr. P. R. Mridul, learned senior counsel appeared
for them. Therefore, the case of direct recruits has not gone
unrepresented and the contention can be negative<! on the
short ground. However, there is a more cogent reason why we
would not countenance this contention. In this case, appellant
H does not claim seniority over particular individual in the back-
ground of any particular fact controverted by that person against
whom the claim is made. The contention is that criteria adopt
A. JANAADHANA v. UNION (Desai, J.) 967
ed by the Union Government in drawing-up the impugned
seniority list are invalid and illegal and the relief is claimed
against the Union Government restraining it from upsetting or
quashing the already drawn up valid list and for quashing the
impugned seniority list. Thus the relief is claimed against the
Union Government and not against any particular individual. Iu
this background, we consider it unnecessary to have all direct recruits
B
to be impleaded as respondents. We may in this connection refer to
General Manager, South Central Railway, Secunderabad & Anr. etc.. v.
A. V.R. Sidhanti and Ors. etc.(1) Repelling a ·contention on behalf
of the appellant that the writ petitioners did not implead about 120
employees who were likely to be affected by the decision in this case,
this Court observed that the respondents (original petitioners) are c
impeaching the validity of those policy decisions on the ground of
their being violative of Arts. 14 and 16 of the Constitution. The
proceedings are analogous to those in which the constitutionality of
a statutory rule regulating the seniority of government servants is
assailed. In such proceedings, the necessary parties to be impleaded
D
are these against whom the relief is sought; and in wbos• absence
no effective decision can be rendered by the Court. Approaching
the matter from this angle, it may be noticed that relief is sought
only against the Union of India and the concerned Ministry and
not against any individual nor any seniority is claimed by anyone
individual against another particular individual and therefore, even ,E
if technically the direct recruits were not before the Court, the
petition is not likely to fail on that ground. The contention of the
respondents for this additional reason must also be negatived.

Appellant had also sought a discretion for quashing the penal
for promotion dated January 13, 1975 of 102 officers included in F
E·in·Cs Proceedings No. 65020/EE/74/EIR on the ground that the
panel for promotion is drawn up on the basis of impugned seuiority
list, in which the appellant and several similarly situated ABE pro•
moted way back in 1962 onwards did not find their place and were
therefore not treated as being within the zone of selection. This G
relief must fo)low as a neces~ary corollary because once 1974 seniority
list is quashed and consequently a declaration is being made that
1963 and 1967 seniority lists were valid and cannot be set at naught
by principles of seniority determined in 1974, any ·panel drawn up
on the basis of the invalid seni Jrity must fall and must be quashed. H

(I) [1974] 3 S.C.R. 207 at 212.
968 $UPRE¥E COURT REPORTS tI983j 2 S.CR.
Pursuant to an integrated reading of Judgment in Bachan· Singh's case
and this case a fresh panel for promotion will have to be drawn up
consistent with the seniority list of 1963 & 1967 because it was not
. disputed that promotion from the cadre of AEE to Executive Engi-
neer is on the principle of seniority-cum-merit. It may be mentioned
that the appellant had songht interim relief by way of injunction
· restraining the respondents not to promote anyone on the basis of
B
the panel. This Court declined to grant such relief because exigen-
.cies of service do demand that the vacancies have to be filled. But
in order to protect the interest of the appellant and those similarly
situated, it was made abundantly ciear that any promotion given
subsequent to the date of the filing of the petition in the High Court
c must be temporary and must abide by the decision in this appeal.
Therefore, consequent upon the relief being given in this appeal, the
promotions will have to b~ readjusted and the case of appellant and
those similarly situated will have to .be examined for being brought
on the panel for promotion. ~

D Before we conclude this judgment, we will have qualm of
conscience if we do not draw attention to a very unjust, unfair and
inequitable situation having a demoralising effect on public services
probably ensuing from certain rules framed by the Government and
the decisiorls of this Court. Even where the recruitment to a service
is from more than one source and ·a quota is fixed for each service,
yet more often the appointing authority to meet its exigencies of
service exceeds the quota from the easily available source of pro-
motees because the procedure for making recruitment from the
market by direct recruitment is long prolix and time consuming.
The Government for exigencies of service, for needs of public services
I' and for efficient administration, promotees person easily available
becaus~ in a hierarchical service one hopes to move upward. After
the promotee is promoted, continuously renders service and is neither
found wanting nor inefficient and is discharging bis duty to the
satisfaction of all, a fresh recruit from the market years after pro-
motee was inducted in the service comes and challenges all the past
G recruitments made before he was born in service and some decisions
especially the ratio in Jaisinghani's case as interpretted in two B. S.
Gupta's cases gives him an advantage to the extent of the promotee
being preceded in seniority by direet recruit who enters service long
after the promotee was promoted. When the promotee was pro-
H moted and was rendering service, the direct recruit may be a schoo-
lian or college going boy. He emerges from the educational insti-
A. iANAlu>HANA '· \TNION (Desai, J.) 969
tuti\ln, appears at a competitive examination and starts challenging
everything that had happened during the period when he has bad A
nothing to do with service. A mandamus issued in Jaisinghani' s case
r led to a situation where promotees of the year 1962 had to
yield place. to direct recruits of 1966 atid the position wor-
soned thereafter. In the case in hand, appellant a promotee of
September 27, 1962 is put below N. K. Prinza who appeared at
competitive examination in April 1976 i.e. one who came 14 years B
after the appellant, and it does not require an intelligent exercise to
reach a conclusion that 14 years prior to 1976 Mr. Prinza who is
shown to be born on July 20, 1950 must be aged about 12 years
and must have been studying in a primary school. Shorn of all
service jurisprudence jargon one can bluntly notice the situation,
that a primary school student when the promotee was a member of
the service, barged in and elaimed and got seniority over the pro-
motee. If this has not a demoralising effect on service one fails to
see what other inequiious approach would be more damaging. It is
therefore, time tp dearly initiate a propdsition that a direct recruit
who comes into service after the promotee was already uncondi- D
tionally and without reservation promoted and whose promotion
is not shown to be invalid or illegal according to relevant statutory
or non-statutory rules should not be permitted by any principle of
seniority to score a march ov0r a promotee because that itself being
arbitrary would be viola!Ive of Arts. 14 and 16. Mr. Ramamurthi,
learned counsel for some of the direct recruits in this connection E
urged that if at the time when the promotee was recruited by pro-
motion, his appointment/promotion was irregular or illegal and
which is required to be resularised, any subsequent direct recruits
c~ming in at a later date can seek relief and score a march over
such irregular and illegal entrant. We find it difficult to subscribe F
to this view. Though we have dwelt at some length on this aspect
any enunciation of general principle on the lines indicated by us
would require a reconsideration of some of the decisions of this
Court. We say no more save that we have solved the riddle in this
case in accordance with the decisions of this Court and interpreta-
tion of relevant rules. G

Accordingly, this appeal must succeed and is hereby allowed.
The judgment of the High Court dated May 15/17, 1979 is set aside
and the writ petition filed by the appellant in the High Court to the
extent herein indicated is accepted. Let a writ of certiorari be issued
H
quashing and setting aside the seniority list dated June 14, 1974.
It is further hereby declared that the seniority lists of 1963 and
9'10 strPRm.m. Couil.T REPORTS [198312 s.c.a.

1967/68 were valid and hold the field till 1969 and their revision can
A be made in respect of members who joined service after 1969 and
the period subsequent.to 1969. The Panel for promotion in respect
of 102 officers included in E-in-C's proceedings No, 65020/EE/74/
EIR dated January 13, 1975 is quashed and set aside. All the pro-
motions given subsequent to the filing of the petition in the High
Court are subject to this decision and must be readjusted by drawing
B
up a fresh panel for promotion keeping in view the 1963 and 1967 /68
seniority list of AEE in the light of the observations contained in
this judgment.

c In the circumstances of the case, there will be no order as
to costs.

S.R. Appeal allowed.