Holding

A promotee becomes a member of the service only upon substantive appointment to a cadre post, and his seniority is to be fixed from the date the post becomes available within the 50 % quota, while a direct recruit’s seniority is fixed from his year of allotment as Assistant Executive Engineer.

Summary

The case concerned the inter‑se seniority of officers promoted from the Class II Engineers Service (the promotees) and a directly recruited Assistant Executive Engineer, R.R. Sheoran, under the Haryana Service of Engineers (Class I) Rules, 1966. The promotees were elevated to Executive Engineer on an officiating basis with a five‑year service relaxation, while Sheoran was recruited directly and later promoted. The dispute was whether the promotees became members of the service from the date of their officiating promotion and thus senior to Sheoran, or whether only substantive appointment to a cadre post confers membership and seniority. The Supreme Court interpreted the rules, holding that a promotee becomes a member of the service only upon substantive appointment to a cadre post, and his seniority is measured from the date the post becomes available within the 50 % quota, whereas a direct recruit’s seniority is fixed from his year of allotment as Assistant Executive Engineer. Consequently, the promotees could not claim seniority over the direct recruit. The Court directed the Haryana Government to determine cadre strength and fix inter‑se seniority accordingly. The appeal was dismissed.

Issues considered

The date on which a promotee becomes a member of the service under Rule 2(12)(a)
Whether seniority of promotees should be fixed from the date of officiating promotion or from the date a cadre post becomes available within the quota
Interpretation of the quota provision in Rule 5(2) and its proviso
Whether Rule 2(12)(a) violates Articles 14 and 16 of the Constitution
The method of determining inter‑se seniority between promotees and direct recruits

Legislation cited

Constitution of Indias. Article 14, s. Article 16

Subjects

senioritypromotionpublic service rulesquotadirect recruitmentpromotion from subordinate serviceinterpretation of statutesconstitutional equalityservice law

Judgment

A A.N. SEHGAL AND ORS.
v.
RAJE RAM SHEORAN AND OR.S.

APRIL 5, 199 l.
B
[K.N. SINGH AND K. RAMASWAMY, JJ.]

Civil Service-Haryana Public Service of Engineers Class l PW D
(Roads and Buildings Branch) Rules, 1966--Ru/es 2( 1), (7), (JO), ( 12),
5, 6, 7, 8, 9, 11, 12-Post of Asst. Executive Engineer, Executive
engineer and Superintending Engineer-Direct recruits and promotees •
~-
C -Inter se fixation of seniority-Year of aliotment-Alterability of.

Constitution of India, I950-Articles 14 and I6--Direct recruit
Assistant Executive Engineer to cadre post and ex cadre post-Treat-
ment at par as members of service-Validity of-Rule 2(12)(a),
D Haryana Public Service of Engineer Class I PWD (8oads and Buildings
Branch) Rules, 1966--Whether discriminatory.

Interpretation of Statutes-Proviso of particular provision of a
.
statute-Construction of-Whether carves out ;,n exception to the main
provision (Haryana Public Service of Engineers, Class I, PWD (Roads
E and Buildings Branch) Rules, 1966--Rule 5(2)(a).

Haryana Service of Engineers, Class I, PWD (Roads and Build-
ings Branch) Rules, 1966--Ru/es 2( 1), (3), (7), (IO), ( 12)(a), 5(2)(a),
8, 9, (2), ll, 12, (3), (5), (6), (7)-Hatnionious collstruttion-Reasdns
indicated.
F The appellants, 'the promotees' from Class II Service were pro-
moted as Executive Engineers by relaxing five years length of service as
Class II Engineers in officiating capacity on various dates between
January 6, 1969 to May 29, 1971. Only the appellant no. 1 and two
others were confirmed as Executive Engineers w.e.f. July 11, 1973,
December 11, 1974 and December 9, 1975 respectively.
G
The respondent No. 1 was recruited and appointed directly as
Asstt. Executive Engineer w.e.f. October 25, 1971. He was also given
relaxation of the length of service of five years as Asstt. Executive
Engineer and was promoted as Executive Engineer on October 8, 1973
H and was confirmed w.e.f. December 22, 1976.

198
SEHGAL v. SHEORAN 199

All the appellants except one M.R. Gupta were further promoted
as Superintending Engineers on different dates between 1980 to 1984 A
whereas the respondent no. 1 was promoted as Superintending Engineer
on March 4, 1987.

The appellant no. I was further promoted as Chief Engineer The
validity of the promotion of respondent no. 1 to the post of Chief B
Engineer was challenged.

The respondent no. I who was shown junior to the appellants, filed
"'·I Writ Petition seeking a writ of mandamus directing the second respon-
dent, State Government, to constider his case for promotion as
Superintending Engineer from the date on which the respondents were
promoted assigning the seniority over the appellants and the consequen- c
tial reliefs.

On reference, a Division Bench of the High Court held that
respondent no. 1 was a member of the service from the date of his initial
appointment as Asstt. Executive Engineer and the appellants and the D
proforma respondents were not memhi!rs of the service and directed the
Single Judge to dispose of the matter on merit, against which, this
appeal on leave was filed.

The appellants contended that the appellants being promoted as
Executive Engineers against regular vacancies, which were neither a E
stop-gap arrangement nor fortuitous, and being continued in service
~ without any break from the respective dates of their promotion, they
wert members of the service in a substantive capacity as Executive
Engineers from the respective dates of promotion; that since the respon-
dent no. 1 was recruited as Asstt. Executive Engineer w.e.f. August 30,
1971 long after the promotion of the appellants, the appellants were F
seniors to the respondent no. 1 as Executive Engineers, as Proviso to
Rule 5(2) entitles them to remain in a substantive capacity as Executive
Engineers since requisite number of qualified Asstt. Executive
Engineers were not available for promotion; that in view of their contin-
'lt ous officiation as Executive Engineers in terms of Rule 2(12)(a) of the
• rules, they most be deemed to be the members of the service from the G
dates of promotion and, therefore, they were seniors to the respondent
no.1.

The respondents contended that unless the appellants were
appointed substantively to the cadre posts they could not be members.
of the service. The respondent no. I became a member of the ser- H
200 SUPREME COURT REPORTS I 1991] 2 S.C.R.
A vice from the date of his initial appointment as Asstt. Executive
Engineer, therefore, he was senior to the appellants and proforma
respondents. ~

As agreed hy the parties, this Court declare the law on the inter-
pretation of the rules and leave the matter for the State Govt. to decide
B the inter se seniority on merits. Disposing the appeal, it is.

HELD: 1. Appointment to a post in accordance with the rules is a
condition precedent and no one can claim appointment to a post or ,i.

promotion, as of right, hut has a right to be considered in accordance )

with the rules, Appointment by promotion or direct recruitment, there-
fore, must be in accordance with the rules so as to become a member of
c the service in a substantive capacity. Seniority is to be fixed in accor-
dance with the principle laid down in the rules. [213G-214A]

2. The promotee has right to confirmation in the cadre post as
per Rule 11( 4) if a post is available to him within his quota or at a later
D date under rule 5(2) read with rule 11(4) and gets appointment under ...
rule 8(11). His seniority would be reckoned only from the date of the .
availability of the post and the year of allotment, he shall be next below
to his immediate senior promotee of that year or the junior most of the
previous year of allotment whether officiating or permanent occupying
the post within 50% quota. [214G-215A]
E
3. A direct recruit on promotion within his quota, though later to
the promotee is interposed in between the periods and interjects the
promotee's seniority; snaps the links in the chain of continuity and
steals a march over the approved promotee probationer. [215B]

F 4. Mere officiating appointment by promotion to a cadre post
outside the quota; continuous efficiation therein and declaration of pro-
bation would not clothe the promotee with any right to claim seniority
over the direct recruits. The necessary conclusion would, therefore, be
that the direct recruit shall get his seniority with effect from the date of
the year of the allotment as Asstt. Executive Engineer which is not ~
G alterable. Wheres the promotee would get his seniority w.e.f. the date
of the availability of the posts withm 50% quota of the promotees. [2150]
•
5. The seniority of the promotee from Class II service as Execu-
tive Engineer shall be determined with effect from the date on which the
cadre post was available to him and the seniority shall be determined
H accordingly. [215F]
SEHGAL v. SHEORAN 201

6. Under the Rules 'determination of seniority would lie made
A
only after the promotee becomes a member of the service'. Therefore the
year of allotment must be determined having regard to (i) l!Vailability of
the cadre post within quota; (ii) satisfactory completion of the proba-
tion, and (iii) appointment to the post in the substantive capacity in
term of Rules 12(6) and (7) read with Rule 11(4) and Rule 8(12). Any
other construction would be contrary to ihe avowed object of the rules B
as a whole. [218B-C]

7. There is neither invidious discrimination nor arbitrariness in
"·:I Rule 2(12)(a) offending Arts. 14 & 16. The differentiation drawn bet-
ween direct recruit and the promotee bears rational relation to the
object of Rule 2(12). [219H]
c
8. The Government of Haryana to determine the cadre posts, if
not already done, regularly from time to time including the post created
due to exigencies of service in terms of Rule 3(2) read with appendix 'A'
and allot the posts in each year of allotment as contemplated under rule
"I 12 read with Rule 5(2)(a) and issue orders appointing snbstantively to D
j'. the respective posts within the quota and determine the inter se senio-
rity between the appellants promotees and the direct recruits in the
respective quota cadre posts of Executive Engineers etc. within four
months from the date of receipt of this judgment. The inter se seniority
... of promotees and direct recruits shall be determined accordingly. [220D-E I
E
M.S. Mighlani v. State of Haryana & Anr., [1983] 1 SLR 421;
~-
J. c. Yadav v. State of Haryana., [1990] 2 SCC 189; K.K. Khosla v.
State of Haryana, [1990] 2 SCC 199; V.B. Badami, etc. v. State of
Mysore, [1976] l SCR 815; K.C. Joshi & Ors. etc. v. Union of India &
Ors., [1990] 29 Scale 951-referred to.
F
R.P. Khanna v. S.A.F. Abbas & Ors, [1973] 3 SCR 548 at 557
C-J; Baleshwar Dass & Ors. v, State of U.P. & Ors. etc., [1981] l SCR
449 at 463; B.S. Yadav v. State of Haryana, [1980] 1 SCR 1024; The

•
. Direct Recruit, Clall II Engineering Officers' Association v. State of
Maharashtra & Ors., [1990] 2 SCC 715 at 745-Distinguished .

9. It is a cardinal rule of interpretation that a proviso to a
G

particular provision of a stature only embraces the field which is
covered by the main provision. It carves ont an exception to the main
provision to which it has been enacted by the proviso and to no other.
The proper function of a proviso is to except and deal with a case which
wonld otherwise fall within the general language of the main enactment, H
202 SUPREME COURT REPORTS I 1991] 2 S.C.R.

and its effect is to confine to that case. Where the language of the
A main enactment is explicit and unambiguous, the proviso can have no
repurcussion on the interpretation of the main enactment, so as to
exclude from it, by implication what clearly falls within its express
terms. [211E-F]

B IO. The scope of the proviso is to carve out an exception to the
main enactment and it excludes something which otherwise would have
been within the rule. It bas to operate in the same field and if the
language of the main enactment is clear, the proviso cannot be torn
apart from the main enactment nor can it he used to nullify by implica- ·'"
tion what the enactment clearly says nor set at naught the real object of '
the main enactment, unless the words of the proviso are such that it is
c its necessary effect. [2 llG-H]

11. In interpreting the rules, effect must be given lo allow everyone
drawn from the sources to have their due share in the service and
chances of involvement to effectively discharge the duties of the posts
D honestly and efficiently with dedication. Any wanton or deliberate de vi- ...
ation in the implementation of the rules should be curbed and snubbed \.
and the roles must be strictly bnplemented to achieve the above
purpose. If wanton doviations are allowed to be repeated, it would
breed indi~cipline among the services and amounts to undue favour to
some and denial of equality for many for reasons known or unknown
E subverting the purpose of the rules. [213F]
'
12. Rules 2(1), 2(3) 2(7), 2(10). 2(12)(a) 5(2)(a) 8, 9(2), 11, 12(3),
;)-.
12(5) to 12(7) to be construed harmoniously. lest the legislative anima-
lion would be defeated and the rules would be rendered otiose and
surpluses. It would also adversely effect the morale and efficiency of the
F service. [21SC]

13. With a view to have efficient and dediicated services account-
able to proper implementation of Govt. policies, it is open and is con-
stitutionally permissible for the State, to infuse into the services, both
talented fresh blood imbued with constitutional commitments, enthu- }"
G siasm, drive and initiative by direct recruitment, blended with matured
wealth of experience frOIO the subordinate services. [2UG]

14. It is permissible to com;titute an integrated service of persons
recruited from two or more sources, namely, direct recruitment,
promotion from subordinate service or transfer from other services.
H Promotee from subordinate service generally would get few chances of
SEHGAL v. SHEORAN [RAMASWAMY. 1.l 203

pr11motion to higher echol_ans of services. [212H[

15. Avenues and facilities for promotion to the higher services to
the less privileged members of the subordinate service would incukate
in them· dedicatio11 t0> excel their latent capabilities to man the cadre
posts. [213A]

16. Talent is not ·the privilege of few but equal avenues made
;ivai!able would explore C01111!Jl!n man's capabilities overc11ming en.
yironmental adversity and open up full opportunities to develop O!le's
capabilities to shoulder higher responsibilities without succumbing t9
dispondence. Eq11ally talented young men/women of great promise
)Vould enter into service IJy direct recruitment when chances of pr11mo-
tions are attractive. [21311] c
17. The chances of promotion would also enable a pr()motee to
imbue involvement in the performa11ce of tl\e duties, obviate fr 0 stration ·
and eliminate proclavity to corrupt practices, lest one would tend to
become corrupt, sloven and mediocre and a dead wood, In other )Vords, p
equal opportunity would harness the human resources to a!Jgment the
effeciency of the service and nndue emphasis on either would upset the
scales qf eq11ality germinating the seeds 9f degeneration. [2130 I

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4094
pf 1984. E

From the Judgment and Order dated 9.7.1984 of the Punjab &
Haryana High Court in Civil Writ Petition No. 5371 of 1981.

P.P. Rao, Sr. Adv. and Janendra Lal for the Appellants.
F
S.C. Gupta, Rajinder Sachhar, Sudarshan Goyal, Vivek Bhan-
dari, S.C. Patel, Mahabir Singh and C.M. Nayar(NP) for the
Respondents. •

The Judgment of the Court was delivered by
G
K. RAMASWAMY, J. The appellants and tile proforma respon-
dents, thirty in numbers are employed in the Punjab Servic" of
Engineers•, Class II. The Governor, in exercise of the power under
proviso t:i Art. 309 of the Constitution of India framed the Punjab
Service of Engineers, Class I, P.W.D. (Roads and Buildings) Rt!les,
1960, for short 'the Rµles' constituting the Punjab Seryiq' of J-1
1

204 SUPREME COURT REPORTS I 1991] 2 S.C.R.
A Engineers, Class I, P.W.D. (Roads and Buildings Branch). After the
formation of State of Haryana w.e.f. November· I, 1966, the rules are
called Haryana Service of Engineers, Class I, P.W.D. (Roads and
Buildings Branch). The services consist of Asst!. Executive Engineers,
Executive Engineers, Superintending Engineers, and Chief Engi-
neers, as may be specified by the Government of Haryana from time to
B time (Rule 3(1). The recruitment to the service is made by the govern-
ment as per Rule 5(1); (a) by direct recruitment; (b) by transfer from
any other services of the State Covt. or of the Union of India; and (c)
by promotion from Haryana Engineers, Class II Service. The appel- ,_
lants for short 'the promotees" from Class II Service were promoted as
Executive Engineers by relaxing five years length of service as Class II
c Engineers in officiating capacity on various dates between January 6,
1969 to May 29, 1971, Three of them, namely, A.N. Sehgal, Raj
'I

.
Kumar and H.C. Sethi were confirmed as Executive Engineers w.e.f.
July 11, 1973, December 11, 1974 and December 9, 1975 respectively.
The rest are yet to be confirmed. Raje Ram Sheoran was recruited and
appointed directly as Asstt. Executive Engineer w .e .f. October 25,
D 197 I. He too was given relaxation of the length of service of five years
as Asst!. Execµtive Engineer and was promoted as Executive Engineer
on October 8, 1973. He was confirmed w.e.f. December 22, 1976. All
the appellants except M.R. Gupta were further promoted as Superin-
tending Engineers on different dates between 1980 to 1984 and Mr.
Sheoran was promoted as Superintending Engineer on March 4, 1987.
E A.N .. Sehgal was further promoted as Chief Engineer. Equally Mr.
Sheoran was also promoted as Chief Engineer but the validity was
challenged and it is not necessary to refer any further as it is subject
matter of proceedings in the High Court.

R.R. Sheoran who was shown junior to the appellants, filed Writ
F Petition No. 5371/81 and sought a writ of mandamus directing the
second respondent, State Government to consider his case for promo-
tion as Superintending Engineer from the date on which the respon-
dents were promoted; to quash the gradation list; to assign the senio-
rity over the appellants and the consequential reliefs. On reference, a
Division Bench of the High Court by its judgment dated July 9, 1984 ,..
G agreed with the ratio laid down in M.S. Mighlani v. State of haryana &
Anr., [1983] 1 S.L.R. 421 and held that R.R. Sheoran was a member
of the service from the date of his initial appointment as Asstt. Execu-
tive Engineer and the appellants and the proforma respondents are not
members of the service and directed the learned Single Judge to dis-
pose of the matter on merit. This appeal on leave arises against the
H judgment of the Division Bench.
SEHGAL v. SHEORAN [RAMASWAMY, J.[ 205

The controversy centres round the inter se seniority of the appel-
lants and R.R. Sheoran. For its determination the Rules need inter- A
pretation. The counsel for parties agreed that we should decide the
principles on consideration of the Rules and leave the matter for the
State Govt. to determine the inter se seniority by applying the law, so
far as the controversy relating to relaxation of. the length of service is
concerned it is set at rest by this Court in J.C. Yadav v. State of B
Haryana, [1990] 2 SCC 189 and K.K. Khosla v. State of Haryana,
[ 1990] 2 SCC 199 by a bench of three Judges to which one of us (K.N.
Singh, J.) was a member. The only question which survives is as to
when 'the appellants' and 'R.R. _Sheoran' became members of the
respective services.

Shri P.P. Rao, learned Senior Counsel for the appellants con- c
tends that the appellants were promoted as Executive Engineers
against regular vacancies, which were neither a stop-gap arrangement
nor fortuitous, and they continued in service without any break from
the respective dates of their promotion, therefore, they are members
of the service in a substantive capacity as Executive Engineers from D
the respective dates of promotion. He further argued that since Raje
Ram Sheoran was recruited as Asst!. Executive Engineer w.e.f.
August 30, 1971 long after the promotion of the appellants upto B.L.
Goyal, the appellants are seniors to R.R. Sheoran as Executive
Engineers. Proviso to Rule 5(2) entitles them to remain in a substan-
tive capacity as Executive Engineers since requisite number of qua- E
lified Asstt. Executive Engineers were not available for promotion. In
view of their continuous officiation as Executive Engineers in terms of
Rule 2(12)(a) of the rules, they must be deemed to be the members of
the service from the dates of promotion and, therefore, they are
seniors to R.R. Sheoran. M/s. Sachhar, learned counsel for the State
and Gupta for R.R. Sheoran on the other hand contended that unless F
the appellants were appointed substantively to the cadre posts they
could not be members of the service. R.R. Sheoran became member
of the service from the date of his initial appointment as Asstt. Execu-
tive Engineer, therefore, he is senior to the appellants and proforma
respondents and the High Court rightly interpreted Rule 5(2). Since
the High Court did not enter into the merits of the respective claims of G
the appellants and Sheoran, we express no opinion on merits except,
as agreed by the parties, we declare the law on the interpretation of
the rules and leave it to the State Govt. to decide the inter se seniority
on merits.

It is necessary to have a look into the Rules regulating the H
206 SUPREME COURT REPORTS I 1991] 2 S.C.R.
A service. Rule 3( 1) postulates that the service shall comprise of
Assistant Executive Engineers, Executive Engineers, Superintending
Engineers and Chief Engineers. Rule 3(2) read with appendix 'A'
enjoins the State of Haryana to determine the cadre strength of service
each year. Appendix 'A' lays down procedure to determine the cadre
strength of service. The senior posts include Executive Engineers and
B above while the junior scale posts include Asst!. Executive Engineers.
Ex-cadre posts also are contemplated in the respective senior posts
and junior scale posts. Rule 5(1)(a) posits recruitment to the service:
(a) by direct recruitment; (b) by transfer and (c) by promotion from
Class II service. Sub-rule (4) of Rule 5 says that all direct appoint-
ments to the service shall be to the post of Asstt. Executive Engineer.
Proviso therein gives power to the government to appoint by direct
C recruitment as Executive Engineers, in exceptional circumstances, for
reasons to be recorded in writing. Rules 6 and 7 prescribe qualifica-
tions and method of appointment by direct recruitment. Subrule (3) of
Rule 7 states that appointment to the service shall be made according
to the number of vacancies to be filled by direct recruitment strictly in
D the order of merit as indicated by the Public Service Commission. As
per Rule 11( 1) a direct recruit shall remain on probation for a period
of two years or extended period upto maximum of three years. On
satisfactory completion of probation, the government may confirm
under clause (a) of sub-rule (3) of Rule 11 or to discharge him from
service otherwise. The post of Asst!. Executive Engineer is a junior
E scale post. Under rule 12(3), the year of allotment of an Asst!. Execu-
tive Engineer shall be the calander year in which the order of appoint-
ment is issued by the government.

Rule 2(1) defines appointment to the service which includes an
appointment made according to the terms and provisions of the rules
F to an officiating vacancy or to an ex-cadre post provided that an officer
so appointed shall not be deemed to have become a member of the
service as defined in Clause ( 12) of Rule 2. The Asstt. Executive
Engineer means a member of the service in the junior scale of pay,
(Rule 2(2)). Cadre post means permanent post in the service as per
Rule 2(3). 'Class II Service' means the Punjab Service of Engineers, ~
G Class II, in the Buildings and Roads Branch and includes, for purposes
of promotion to and fixation of seniority in the Class I Service,
Temporary Asst!. Engineers when a suitable Class II Officer is not
available vide Rule 2(5). Direct appointment means an appointment
by open competition but does not include-(a) an appointment made
by promotion; (b) an appointment by transfer of an officer from the
H service of the State Government or of the Onion, (Rule 2(7). Ex-cadre
SEHGAL v. SHEORAN [RAMASWAMY, i.J 207

post means a temporary post of the same rank as a cadre post vide
A
Rule 2(10). A member of the service means an officer appointed sub-
·~· stantively to a cadre post and includes (a) in the case of a direct
appointment an officer on probation, or such an officer who, having
successfully completed his probation, awaits appointment to a cadre
post vide Rule 2(12)(a).
B
A reading of the rules dearly indicates that an Asstt. Executive
Engineer appointed by open competition to a substantive vacancy in a
cadre post and put on probation is a member of the service. Equally
such Asst!. Executive Engineer recruited by open competition and
appointment to an ex cadre post and put on probation and who having
successfully completed his probation and awaits appointment to a
cadre post would also become a member of the service. The contention
c
of Shri P.P. Rao is that an officer appointed substantively to a cadre
post is a direct recruit and the inclusive definition encompasses within
its ambit the promotee and the phrase "such an officer who having
successfully completed his probation and awaits appointment to the
cadre post" is only referable to a promotee. So promotee is also a D
member of the service from the date of initial promotion, We may
make it clear at this juncture that in normal service jurisprudence a
direct recruit would always be recruited and appointed to a substantive
vacancy and from the date he starts discharging the duty attached to
the post he is a member of the service subject to his successfully comp-
leting the probation and declaration thereof at a later date and his

l_ appointment relates back to the date of initial appointment, subject to
his being discharged from service on failure to complete the probation
within or extended period or termination of the service according to
rules. Equally it is settled law that a promotee would have initial
otficiating promotion to a temporary vacancy or substantive vacancy
and on successful completion and declaration of the probation, unless F
reverted to lower posts, he awaiis appointment to a substantive
vacancy. Only on appointment to a substantive vacancy he becomes a
itiember of the service. But confirmation and appointment to a sub-
stantive vacancy always an inglorious uncertainty and would take
iinduly long time. Therefore, the confirmation or appointment to a
Substantive capacity would not normally be a condition precedent to G
teckon the continuous length. of service for the purpose of seniority.
On the facts of the case and the settled legal position, at first blush the
argument of Shri P .P. Rao carried weight that the appellants would get
their seniority from the respective dates of the initial promotion as
Executive Engineers. But we find that in the instant case the rules
have made departure from the normal service jurisprudence as would H
208 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

appear from the scheme under the rules.
A
Para l!(b) of appendix 'A' read with Rule 3(2), while determin-
ing the cadre strength of the service, adumbrates creation and appoint-
ment of Asstt. Executive Engineers (direct recruit) to an ex-cadre
junior scale post in each year. Therefore in a given situation, a direct
B recruit appointed to an ex-cadre post, cannot be kept in lurch until he
is appoined to a cadre post so as to become a member of the service.
Obviously to avoid such a hiatus, Rule 2( 12)(a) was introduced. The
main part of Rule 2( 12)(a) declares that an appointee substantively to
a cadre post i.e., permanent post is a member of the service. The
inclusive definition brings an officer 'by direct appointment on proba-
tion' who having successfully completed probation and awaits appoint-
c ment to a cadre post is also a member of the service. Take for instance
if direct recruitment is made to fill in five posts of Asstt. Executive
Engineers of which four are cadre pcists and one ex-cadre post and four
persons are appointed to cadre posts in the order of merit and the last
one to the ex-cadre post. The first four officers appointed on probation
D to the substantive vacancies and they are covered by the main part of
Rule 2(12)(a). The fifth one intended to cover the field of operation of
the inclusive definition which says that 'and also includes an officer
directly appointed on probation' 'and such an officer who having
successfully completed his probation, awaits appointment to a cadre
post'. The words 'and such an officer' 'directly appointed' would obvi-
E ously referable to an Asst!. Executive Engineer directly appointed to
an ex-cadre post; who may be placed on probation and awaits appoint-
ment to a cadre post. By operation of the definition clause he also
becomes the member of the service from the date of initial appoint-
ment. This view is further fortified by the definition of the 'appoint-
ment to the service' in Rule 2( 1) which says that appointment to the
F service includes an appointment made according to the terms and pro-
visions of these rules to an officiating vacancy or to an ex-cadre post.
Rule 2(7) says that direct appointment means appointment by open
competition but excludes 'promotee' or 'transferee'. So a promotee
promoted to an officiating vacancy or on ex-cadre post does not
become member of the service unless he is appointed substantively to a
G cadre post. We, therefore, hold that a direct recruit appointed to an
ex-cadre post alone is a member of the service even while on probation
and Rule 2(12)(a) applies to them and it does not apply to promotee
from Class II service.

An Asstt. Executive Engineer, on putting five years of service
H under rule 9(3)(a) and passing the departmental examination as
SEHGAL v. SHEORAN [RAMASWAMY, J.l 209

required under rule (15), (unless the qualifications are relaxed in exer- A
cise of the power under rule (22) of the rules) becomes eligible for
promotion as Executive Engineer. The State Govt. had relaxed the
required length of five years service of the promotees as well as direct
recruits. R.R. Sheoran therefor became eligible to be considered· for
promotion. As per the procedure prescribed in this regard under rule
B
9(2), he was found fit and suitable and was promoted as an Executive
Engineer w.e.f. October 8, 1973. Though M/s. Sachhar and Gupta
contended that the direct recruit need not undergo the required proba-
tion as Executive Engineer, we find no force in the contention. The
normal channel of appointment to the post of Executive Engineer, a
senior post, is by way of promotion to which a direct recruit Asstt.
Executive Engineer is entitled to be considered. On promotion he c
shall be on probation for a period of one year as per Rule ll(l)(a), but
the period spent on officiation as Executive. Engineer shall be taken
into account for purposes of completing the period of probation and on
its successful completion, he shall remain in service as Executive
Engineer. On a conjoint reading of Rule 12(3) and 12(5) it is clear that
0
the year of allotment of the Asstt. Executive I\ngineer in the post of
Executive Engineer, shall be the calendar year in which the order of
appointment as Asstt. Executive Engineer had been made. Thus his
seniority as Executive Engineer, by fiction of law, would relate back to
his date of initial appointment as Asstt. Executive Engineer and in
Juxta position to Class II officers' seniority as Executive Engineer is E
unalterable. The date of the seniority of Mr. R.R. Sheoran 1971.

The question then is what is the date from .which the seniority of
a promotee as Executive Enginee: shall be reckoned? The contention
of Shri P.P. Rao is that Rule 5(2) reserves 50% of the posts to the
direct recruits but the proviso thereto makes a built in relaxation, F
namely, so long as the required number of direct recruits are not
available to occupy those posts, the promotees are entitled to hold
those posts also. Admittedly except R.R. Sheoran no other direct
recruit was available. The promotees are eligible to occupy all the
cadre posts even in excess of their quota. The seniority has to be
determined from the respective dates of initial officiating promotion. G
Shri Rao' further contention that the phrase 'such an officer appointed
to an officiating post' has reference only to promotees cannot be
accepted for the reasons given earlier. The officer appointed directly is
referable only to Asstt. Executive Engineer and a promotee by opera-
tion of Rule 2(7) stands excluded until he is appointed substantively to
a cadre post. H
210 · SUPREME ,COURT REPORTS I 1991) 2 S.C.R.

A When an officer is appointed substantively to a cadre post, is
the next question. It is settled law that all the rules should be harmoni-
ously construed giving life, force and effect to every part of the rule or
clause or word so that no part would be rendered redundant, inef-
fectual, nugatory or otiose. Rule 5( 1) regulates recruitment to the
service from three sources, namely, direct recruitment; by transfer and
B by promotion from Class II service. Sub-rule (2) thereof prescribes the
ratio between the promotees and others. It says that, "recruitment to
the service shall be so reg1,1lated that the number of posts so fillerf by
promotion from Class II service shall not exceed 50%" of the number
of posts in the service excluding the posts of Asst!. Executive
Engineers; provided that till such time the adequate number of Asst!.
C Executive Engineers who are eligible and considered fit for promotion
are available, the actual percentage of officers promoted from Class II
service 'may be larger than 50%. A reading thereof clearly manifests
the legislative animation, namely, that the promotees from Class II
service shall not exceed 50% of the posts in the service. The word
'shall' indicates that it is mandatory that the remaining 50% shall be
D kept open only to the Asst!. Executive Engineers who were directly
recruited but later were found eligible and fit for promotion as Execu-
tive Engineers. Therefore, unless the government resorts exception-
ally with prior permission of Public Service Commission, vide Rule 10
to recruitment by transfer of an officer from other service of the State
Govt. or of the Union, the remaining 50% of the posts as Executive
E Engineers, Superintending Engineers and Chief Engineers shall be
occupied only by the direct recruit Asst!. Executive Engineers. It is
settled law that prescription of quota for recruitment from different
sources is constitutionally a valid rule.

Rule 5(2) limits 50% posts to the promotees from Class II
F Service and no further, but the proviso to the Rule lays down that till
adequate number of Asst!. Executive Engineers are available, the
rigour of 50% quota may be relaxed and Class II officers may be
promoted in excess of their quota. What is the intendment of the
clause 'the actual percentage of officers promoted from Class II service
may be larger than 50% is the question. The mandate of Rule 5(2) is
G that the officers promoted from Class II service shall in no case exceed
50% of the number of posts in the service. Unless it is relaxed, the
appointment and occupation of the posts by promotees in excess
thereof is irregular or illegal and the government have no power to
promote persons from Class II service to fill in such posts of Executive
Engineers Superintending Engineers and Chief Engineers. It is com-
H mon knowledge that direct recruitment as Asst!. Executive Engineer
SJJHGAL v. SHEORAN !RAMASWAMY, J.] 211

or Executive Engine.er; in exceptional circumstances is a tardy process
and even after appointment they have to put in five years service. The A
....-t- balance 50% of the posts cannot be kept vacant. With a view to allow
the wheels of the administration moving, the proviso carves out an

.•
;;, exception and allows the promotees to occupy temporarily the posts in
excess of their quota. In this view the contention of Shri Rao that the
I
~}.
seniority as Executive Engineer is to be counted from the date of
initial temporary pormotion cannot be accepted as it would allow the
Q
iii:
"•' promotees to occupy 100% posts of Executive Engineers, Superin-
·~t tending Engineers and Chief Engineers leaving iittle room for Rule
;.
i 5(2)(a) t.o operate in full force. The exception would eat away the flesh
and blood of Rule 5(2)(a) freezing the channel of promotion to the
direct recruits to senior posts for a very long time to come. In the
'' c
absence of rule of rotation there may be no chance to a direct recruits
to occupy the senior posts. That does not appear to be the intendment,
i scope and operation of the proviso. The intendment appears to be that
so long as the direct recruit Asstt, Executive Engineer, eligible and
~
considered fit for promotion is not available, the promotee from Class
~
-1
, II service in excess of the quota is eligible to occupy on officiating
capacity the senior posts, i.e-; Executive Engineers and above. The
moment direct recruits are available, they alone are entitled to occupy
D

50% of their quota posts and the promotees shall give place to the
direct recruits.

It is a cardinal rule of interpretation- that a proviso to a particular E
provision of a statute only embraces the field which is covered by the
main provision. It carves out an exception to the main provision to
...... which it has been enacted by the proviso and to no other. The proper
~ function of a proviso is to except and deal with a case which would
~~-
4 otherwise fall within the general language of the main enactment, and
··:~~ its effect is to confine to that case. Where the language of the main F
;;r enactment is explicit and unambiguous, the proviso can have l)O
!I repercussion on the interpretation of the main enactment, so as to
exclude from it, by implication what clearly falls within its express
terms.
~
)..
The scope of the proviso, therefore, is to carve out an exceptio_n G
to the main enactment and it excludes something which otherwise
'
> would have been within the rule. It has to operate in the same field and
. the main enactment is clear, the proviso cannot. be
if the langauge of
torn apart from the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at naught the real
object of the main enactment, unless the words_ of the proviso are such H

.,
212 SUPREME COURT REPORTS I 1991] 2 S.C.R.

A that it is its necessary effect.

In V.B. Badami, etc. v. State of Mysore, I 1976] 1 SCR 815 deal- ~
ing with the problem arising out of quota rule between promotees, this
Court observed that:

B "In working out the quota rule, these principles are gener-
ally followed. First, where rules prescribe quota between
direct recruits and promotees, confirmation or substantive
appointment can only be in respect of clear vacancies in the ...
permanent strength of the cadre. Second, confirmed persons \
are senior to those who are officiating. Third, as between
persons appointed in officiating capacity, seniority is to be ,.,
c counted on the length of continuous service. Fourth, direct
recruitment is possible only by competitive examination
which is prescribed procedure under the rules. In promo-
tional vacancies, the promotion is either by selection or on
the principle of seniority-cum-merit, a promotion could be
D made in respect of a temporary post or for a specified r
period but a direct recruitment has generally to be made ":+
only in respect of clear permanent vacancy either existing
or anticipated to arise at or about the period of probation is
expected to be completed. Fifth, if promotions are made to
vacancies in excess of the promotional quota, the promo-
E tions may not be totally illegal but would be irregular. The
promotees cannot claim any right to hold the promotional
posts unless the vacancies fall within their quota. If the ;.....
promotees occupy any vacancies which are within the quota
of direct recruits, when direct recruitment takes place the
direct recruits will occupy vacancies within their quota.
F Promotees who were occupying the vacancies within the
quota of direct recruits will either be reverted or they will '
be absorbed in the vacancies within their quota in the facts
and circumstances of a case".

With a view to have efficient and dedicated services accountable 4'
G to proper implementation of Govt. policies, it is open, and is constitu-
tionally permissible for the State, to infuse into the services, both
talented fresh blood imbued with constitutional commitments, enthu-
siasm, drive and initiative by direct recruitment, blended with matured
wealth of experience from the subordinate services. It is permissible to
constitute an integrated service of persons recruited from two or more
H sources, namely, direct recruitment, promotion from subordinate
SEHGAL v. SHEORAN [RAMASWAMY, J.l 213

service or transfer from other services. Promotee from subordinate
generally would get few chances of promotion to higher echolans of A

-
~

'
services. Avenues and facilities for promotion to the higher services to
the less privileged members of the subordinate service would inculcate
in them dedication to excel their latent capabilities to man the cadre
posts. Talent is not the privilege of few but equal avenues made avail-
able would explore common man's capabilities overcoming environ- B
mental adversity and open up full opportunities to develop one's
capabilities to shoulder higher responsibilities without succumbing to
... despondence. Equally talented young men/women of great promise
1- would enter into service by direct recruitment when chances of promo-
lions are attractive. The aspiration to reach higher echolans of service
would thus enthuse a member to dedicate honestly and diligently to
exhibit competence, straightforwardness with missionary zeal exercis- c
ing effective control and supervision in the implementation of the
programmes. The chances of promotion would also enable a promotee
to imbue involvement in the performance of the duties; obviate frust-
ration and eliminate proclavity to corrupt practices, lest one would

..
--i tend to become corrupt, sloven and mediocre and a dead wood.
In other words, equal opportunity would harness the human resour-
ces to augment the efficiency of the service and under emphasis on
D

either would upset the scales of equality germinating the seeds of
degeneration.

With a view to achieve this objective, the rule making authority E
envisaged to appoint direct recruits as well as by promotion from Class
II Service, otherwise by transfer from other services. In interpreting
the rules, effect must be given to allow everyone drawn from these
sources to have their due share in the service and chances of involve-
ment to effectively discharge the duties of the posts honestly and effi-
ciently with dedication. Any wanton or deliberate deviation in the F
implementation of the rules should be curbbed and snubbed and the
rules must be strictly implemented to achieve the above purpose. If
wanton deviations are allowed to be repeated, it would breed indisci-
pline among the services and amounts to undue favour to some and
}- denial of equality for many for reasons known or unknown subverting
the purpose of the rules. G
'
It is settled law that appointment to a post in accordance with the
rules is a condition precedent and no one can claim appointment to a
post or promotion, as of right, but has a right to be considered in
accordance with the rules. Appointment by promotion or direct
recruitment, therefore, must be in accordance with the rules so as to H
214 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

become a member of the service in a substantive capacity. Seniority is
A
t,1 be fixed in accordance with the principles laid down in the rules.

Rule 8 prescribes procedure for appointment by promotion from
Class II services. Rule 9(2) states that promotion would be made by
selection on the basis of merit and suitability in all respect and no
B member of the service shall have any claim, to such promotion as a
matter of right by mere seniority. The Committee as constituted under
Rule 8 shall prepare the list of officers considered fit for promotion in
the order of merit and on approval by the public Service Commission,
the State Govt. shall appoint the persons from the list in the order in
which the names have been placed by the Commission, Appointment
hy promotion may be made under Rule 8( 12) to an ex cadre post or to '
c any post in the cadre in an officiating capacity from the list prepared as
aforesaid. On promotion, as per Rule 11(1), officer shall be on proba-
tion for a period of one year, but if the officer had been officiating as
an Executive Engineer the period of officiation would be counted
towards probation. Rule 11(4) provides that on satisfactory comple-
D tion of the probationary period, the Govt. confirms the officiating
promotee and "appoint him in a substantive capacity on a cadre post
provided the post is available to him". If no cadre post is available, the
.ifficer has to wait for an appointment to the cadre post.

A promotee within quota under rule 5(2) gets his seniority from
E the initial date of his promotion and the year of allotment, as contemp-
lated in Rule 12(6) shall be the next below 'the junior most officer in
the service whether· officiating or confirmed as Executive Engineer
before the farmer's appointment' counting the entire officiating period
towards seniority, unless ther~ is break in the service or from the date
of later promotion. Such promotee, by necessary implication, would
F normally become senior to the direct recruit promoted later. Com-
bined operation of sub-rules (3) to (5) of Rule 12 makes the direct
recruit a member of the service of Executive Engineer from the date of
year of allotment as an Asstt. Executive Engineer. The result is that
the promotee occupying the posts within 50% quota of the direct re-
cruits, acquired no right to the post and should yield to direct recruit,
G though promoted later to him, to the senior scale posts i.e., Executive
Engineer, Superintending Engineer and Chief Engineer. The pro-
motee has right to confirmation in the cadre post as per Rule IJ(4) if a
post is available to him within his quota or at a later date under rule
5(2) read with 11( 4) and gets appointment under s. 8( 11). His seniority
would be reckoned only from the date of the availability of the post
H and the year of allotment, he shall be next below to his immediate
SEHGAL v. SHEORAN {RAMASWAMY. J.l 215

senior promotee of that year or the junior most of the previous year of
A
allotment whether officiating or permanent occupying the post within
~ 50% quota. The officiating period of the promotee between the dates
of initial promotion and the date of the availability of the cadre post
would thus be rendered fortuitous and stands excluded. A direct
recruit on promotion within hi~q.uota, though later to the promotee is
interposed in between the periods and interjects the promotee's B
seniority; shaps the links in the chain of continuity and steals a march
over the approved promotee probationer. Harmonious construction of
"I rules 2(1), 2(3), 2(7), 2(10), 2(12)(a) 5(2)(a), 8, 9(2), 11, 12(3), 12(5)
to 12(?) would yield to the above result, lest the legislative animation
would be defeated and the rules would be rendered otiose and surp-
!uses. It would also adversely effect the morale and efficiency of the
service. Mere officiating appointment by promotion to a cadre post
c
outside the quota; continuous officiation therein and declaration of
probation would not clothe the promotee with any right to claim
seniority over the direct recruits. 1:he necessary conclusion would,
therefore, be that the direct recruit shall get his seniority with effect
-1 from the date of the year of the allotment as Asstt. Executive Engineer D
f which is not alterable. Whereas the promotee would get his seniority
w.e.f. the date of the availability of the posts within 50% quota of the
promotees. The year of allotment is variable and the seniority shall be
reckoned accordingly. Appointment to the cadre post substantively
and confirmation thereof shall be made under rule 8(11) read with
Rule 11(4) of the rules. A promotee Executive Engineer would only E
then become member of the service, 'Appointed substantively' within

-·"'· the meaning of Rule 2(12) (a) shall be construed accordingly. We,
further hold that the seniority of the promotee from Class II service as
Executive Engineer shall be determined with.effect from the date on
which the cadre post was available to him and the seniority shall be
determined accordingly. F

In K. C. Joshi & Ors. etc. v. Union of India & Ors., [ 1990] 2 Scale

-
951 a Bench of three Judges to which one of us (K. Ramaswamy, J.)
was a member, considered similer question. In that case U.P. Forest
Service Rules, 1952 provides two sources of recruitment to the post of
Asst!. Conservators of Forest. The petitioners therein were Forest G
Range Officers in U.P. Forest Subordinate.Service. The respondents
were direct recruits as Asst!. Conservators of Forest. The rules pre·
scribed ratio between direct recruits and promotees. Due to delay in
recruitment as Asst!. Conservators of Forest, the Forest Rangers were
promoted in excess of their quota as Asstt. Conservators of Forest
temporarily and continued in service without any break for 5 to 12 H

1''.
216 SUPREME COURT REPORTS I 1991] 2 S.C.R.
A years. The promotees claimed seniority from the date of their initial
promotion. Considering the scope of the rules and rights acquired by
the petitioners therein and the direct recruits, the Court held that: .!

"When promotion was outside the quota, the seniority
would be reckoned from the date of the vacancy within the
B quota, rendering the previous service fortuitous. The previ-
ous promotion would be regular only from the date of the
vacancy within the quota and seniority shall be counted
from that date and not from the date of his earlier promo··
lion or subsequent confirmation. In order to do justice to
the promotees it would not be proper to do injustice to the
direct recruits. The rule of quota being a statutory one
c must be strictly implemented and it is impermissible for the
authorities concerned to deviate from the rule due to
administrative exigencies or expediency. The result of
punishing down the promotees appointed in excess of the
quota may work hardship but it is unavoidable and aqy
D construction otherwise would be illegal, nullifying the force
of statutory rules and would offend Arts. 14 & 16( 1).
Therefore, the rules must be carefully applied in such a
manner as not to violate the rules or equality assured under
Art. 14 of the Constitution. This Court interpreted that
equity is an integral part of Art. 14. So every attempt
E would be made to minimise, as far as possible inequity.
Disparity is inherent in the system of working out integra-
tion of the employees drawn from different sources, who
have legitimate aspiration to reach higher echolans of
service. A feeling of hardship to one, or heart burning to
either would be avoided. At the same time equality is
F accorded to all the employees".

Shri P.P. Rao urged that the cadre posts in Rule 2( 12) must
include not only the permanent posts but also temporary posts con-
tinued for more than three years and notional posts which may have
existed for short spells during preceding three years taking into ..j"
G account the number of months and days for which each post had exis-
ted as per the formula prescribed in appendix 'A' read with Rule 3 of
the rules. He further urged that the promotees appointed to such posts
should be treated to be 'members of the service' in terms of Rule
2( 12)(a) and that their promotion should be retrospectively declared
to have been promoted w.e.f. the dates on which the posts were
H created. We are unable to accept this contention. Rule 3 read with
SEHGAL v. SHEORAN (RAMASWAMY, J.l 217

appendix 'A' confers power and also imposes duty on the State Govt.
A
to determine the cadre posts from time to time and in the first five
~.
years on the first day of each year. This exercise should be done in the
, light of the criteria prescribed in appendix 'A'. The present con-
troversy does not concern itself with the method and manner of
determination of the cadre posts, though determination of seniority
hinge upon it. Therefore, for determining seniority, the State Govt. B
should undertake the exercise in terms of Rule 3 read with appendix
'A'. The rules postulate that substantive appointment to a cadre post is
a condition precedent to become a member of the service. A Class II
officer shall be promoted to a temporary post or in an officiating
capacity to a cadre post if vacancy exits; when he occupies a vacancy in
a substantive post and continued uninterruptedly it would be open to
the appointing authority to put the promotee Executive Engineer on c
probation. Though confirmation is an inglorious uncertainity depend-
ing neither on the efficiency of the officer nor generally on the availa-
bility of the post, the mandate of Quota of 50% in Rule 5(2) should be
adhered to. Declaration of probation and confirmation to a cadre post,
if available, under Rule JJ(4) shall be made. Seniority of such D
approved or confirmed promotee should be counted from the date of
either initial officiating promotion or continuous later officiation from
the date of availability of the cadre post, however, should be next
below his senior promotee or the junior most of the preceding year of
allotment within the quota. If no post is available till such date of the
availability, the entire period of continuous officiation would be E
rendered fortuitous. The contention, therefore, that the promotion
would relate back retrospectively to the date of creation of the post and
the appointment to the vacancy shall be with reference to the date of
the creation of the post, would result in anomalies and render. Rule
5(2) to the direct recruits surplusage.
F
Shri P.P. Rao's further contention that the de facto promotion
and the retrospective declaration of cadre post would make the Class ·
II officers as de jure members of the service fruin the very date of
temporary appointment w.e.f. the date of initial appointment also
lacks force for the same reasons. The principles laid down in R.P.
Khanna v. S.A.F. Abbas & Ors., [1973] 3 SCR. 548 at 557 C-J. is not G
applicable to the facts of this case. In that case the certain posts in
State services were required to be declared as senior cadre posts in the
All India Service, but before such declaration could be made some of
the promotee officers officiated in the senior cadre post. In that con-
text the Court observed that 'the promotee could not get the benefit of
officiation unless the post was declared as equivalent to a senior cadre H
218 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

post before the promotee was appointed; to officiate him would defeat
A
the policy of the government' and held that they are entitled to the
benefit of the retrospective declaration 'in the absence of things practi-
cal as well as reasonable'. The scheme of the rules made a definite
departure to the normal service jurisprudence and the operation of the
scheme in the rules must be given full effect. In the instant case under
B the Rules 'determination of seniority would be' made only after the
promotee becomes a member of the service'. Therefore, the year of
allotment must be determined having regard to (i) availability of the
cadre post within quota; (ii) satisfactory completion of the probation;
and (iii) appointment to the post in the substantive capacity in term of
Rules 12(6) and (7) read with 11(4) and Rule 8(12). Any other con-
struction would be contrary to the avowed object of the rules as a
c whole.

The inclusive definition of Rule 2( 12)(a) must be interpreted
liberally and not restrictively. Undoubtedly the inclusive definition
always receives liberal interpretation to bring within its ambit cognate
D but unforseen similes. But the rules envisage only three sources of
recruitment, namely, direct recruitment, appointment by promotion
and in exceptional cases with prior approval of the Public Service
Commission as per Rule JO, the appointment by transfer from other
services of the State or Central Govt. Until the ex-cadre posts are
declared to be cadre posts they remain ex-cadre posts. The promotion
E to the ex-cadre post is temporary or to a cadre post could be only on
officiating basis. It may be open to the government to abolish at any
time the ex-cadre posts. Determination of cadre strength is a condition
precedent for Rule 5(2)(a) to operate. Till a promotee is confirmed in
a substantive capacity as Executive Engineer, he continues to retain
line in Class II service. The interpretation that the promotion to the
F temporary post or ex-cadre post within the meaning of Rule 2(10)
should also be deemed to be an appointment to a substantive post
would do violence to the language of the relevant rules and the
scheme. It is true that this Court in Ba/eshwar Dass & Ors. v. Srate of
U.P. & Ors. etc., [ 1981] 1 SCR 449 at 463 held that there cannot be
probation for a government servant who is not to be absorbed substan-
G tively in the service on completion. The ratio therein does not apply to
the facts of this case for the reason that the Govt. itself did not under-
stand the scope and operation of the rules properly as is amply demon-
strated from their mutually irreconcilable inconsistent stand taken in
the counter-affidavits filed by the State Govt. in the High Court and in
this Court. That apa"rt, it would appear that in the instant case after the
H formation of the State of Haryana, adequate number of officers were
SEHGAL v. SHEORAN [RAMASWAMY. J.] 219

not available to hold the posts. The length of service and passing of
A
prescribed tests were relaxed enmass. In view of the above peculiar
and special facts merely because the promotee Class II Officers were
put on probation and the same was declared it does noi clothe them
with· any right to deeemed appointment tC> substantive vacandes in'
excess of their quota with retrospective effect from the date of initial
promotion to the cadre posts. The year of allotment of a direct recruit B
is always the year in which he is appointed to the junior scale post of
Asst!. Executive Engineer but the year of allotment to the piomotee is
..
;
variable depending on the availability of the.cadre post within.quota of
50% and subject to taking the seniority next below the junior most·
promotee of the preceding year of allotment or imniediate senior of
the same vear. If the contention of Shri P.P. Rao is accepted it would
render R~le 8( 11) mutually inconsistent with Rule 5(2) read with C
Rules 2(7) and 2( 12) and Rule 2( !). No countenance could be given to
the contention that the officers put on probation in terms of Ririe 1 I( I)
irrespective whether they occupied declared posts, but also posts
whicn ought to have been declared as such from titne to tinie and have
continuously remained in service entitle them to become member of D
service and that, as and when the posts occupied by them are dedared'
as cadre posts with retrospective effect, they are entitled to tie treated
as members of the service w.e.f. the due dates. In other words it
amounts to put a premium on the inaction on the part of the Staie
Govt. to declare the cadre posts in terms of Rule 3(2) read with
appendix 'A' defeatng the scheme of the Rules. . E

The contention that our interpretation renders Rule 2( 12)
arbitrary and discriminatory violating Arts. 14 and 16 is also not
tenable. A direct recruit, by operation of Rule 2( 12)(a) read with
Rules 2·( 1) and 2( 10), though appointed to an ex-cadre post, by fiction
of law, becomes a member of the service from the date of his initial F
appointment since being a fresh recruit. On his satisfactory cOmPieti6rl
of the probation and on availability of the cadre post as Asst!. Execu.
live Engineer, he becomes a confirmed Asst!. Executive Engineer.
While a promotee Executive Engineer continues to ratain his line. on
the post as Class II officers till he is appointed substantively to Class I
service. There is reasonable classification and discernable distinction G
drawn between the direct recruit and the promotee. The nexus is to
treat direct recruit Asstt. Executive Engineer appointed to the cadre
post as well as ex-cadre post at par as members of the service and the
deeming clause is to serve this purpose. Thus, there is neither invidi-
ous discrimination nor arbitrariness in Rule 2(12)(a) offending Arts.
14 & 16. The differentiation drawn between direct recruit and the H
220 SUPREME COURT REPORTS I 1991] 2 S.C.R.

A promotee bears rational relation to the object of Rule 2( 12). the ratio
of the Constitution Bench in B.S. yadav v. State of Haryana, [1980] 1
SCR 1024 and The Direct Recruit, Class II Engineering Officers'
Association v. State of Maharashtra & Ors., [1990] 2 SCC 715 at 745
cannot be imported bodily and applies to the ficts of the case in the
light of the operation of the rules in question.
B
The further contention that Rule 12 adumbrates that not only a
member of the service, but even an officer officiating as an Executive
Engineer before becoming a member of the service is entitled to an
year of allotment because the rules nowhere say that only members of
service are entitled to year of allotment is devoid of substance. As
c already discussed a promotee cannot be given year of allotment,
before he becomes a member of the service and his seniority cannot be
fixed arbitrarily with reference to the date of his initial promotion to
an ex-cadre post or continuous officiation in a cadre post wothout
break, as the case may be.

D We accordingly, direct the Government of Haryana to determine
the cadre posts, if not already done, regularly from time to time
including the post created due to exigencies of seryice in terms of Rule
3(2) read with appendix 'A' and allot the posts in each year of allot-
ment as contemplated under rule 12 read with Rule 5(2)( a) and issue
orders appointing substantively to the respective posts within the
E quota and determine the inter se seniority between the appellants
promotees and R.R. Sheoran, direct recruits in the respective quota
cadre posts of Executive Engineers etc. within four months from the
date of receipt of this judgment. The inter se seniority of promotees
and direct recruits shall be determined accordingly. All the impugned
promotions or those pending proceedings in the High Court or in this
F Court shall be subject to the above determination and the status quo
would continue till the appointments according to the rules are made
and seniority is determined in the light of the law declared in this
judgment. The appeal is disposed of accordingly. In the circumstances,
parties are directed to bear their respective costs.

V.P.R.
Appeal disposed of.