Supreme Court of India
BHUPENDRA NATH HAZARIKA AND ANOTHERversusSTATE OF ASSAM AND ORS.
- Citation
- 2012 INSC 553
- Decided
- 30 November 2012
- Disposal
- Dismissed
- Bench
- K S RADHAKRISHNAN
Holding
Appointments of special‑batch recruits made in excess of the statutory quota and in violation of the Assam Police Service Rules are illegal and cannot be given seniority over regular recruits, though their appointments are not to be quashed due to delay and service rendered.
Summary
The Assam Public Service Commission advertised 30 regular (direct) APS vacancies and later 20 special‑batch vacancies. Although the regular candidates were recommended first, the State appointed the special‑batch recruits before the regular ones, exceeding the 5% quota prescribed in Rule 5(1)(c) of the Assam Police Service Rules, 1966. Direct recruits challenged the seniority order, arguing that the special‑batch appointments violated the Rules and should not be senior to them. The Supreme Court held that the special‑batch appointments were illegal, made de hors the Rules, and could not claim seniority over regular recruits; however, because of the long delay and the service already rendered, the Court would not quash those appointments but would push their seniority down. Consequently, the tribunal and High Court’s directions to re‑fix seniority in favour of the regular recruits were affirmed and the appeals dismissed.
Issues considered
- Whether the appointment of special‑batch recruits violated the Assam Police Service Rules, 1966.
- Whether such appointments, if illegal, are de hors the Rules and can be treated as regular.
- Whether the concept of relaxation or deemed relaxation under Rule 23/Rule 18 applies to the special‑batch recruits.
- Whether the special‑batch recruits can claim seniority under the second proviso of Rule 18.
- Whether the tribunal and High Court were justified in re‑fixing seniority without quashing the appointments.
- Whether the limitation period barred the tribunal’s jurisdiction.
Legislation cited
- Assam Administrative Tribunals Act, 1977s. Section 4(2)
- Assam Police Service Rules, 1966s. Rule 18, s. Rule 23, s. Rule 2(c), s. Rule 4, s. Rule 5(1), s. Rule 5(1)(c), s. Rule 5(2), s. Rule 7, s. Rule 8
Subjects
service lawseniorityrecruitment rulesspecial batchdirect recruitmentquotarelaxationdeemed relaxationinter se seniorityadministrative tribunallimitationillegal recruitmentmodel employer
Judgment
[2012] 12 S.C.R. 587
BHUPENDRA NATH HAZARIKA AND ANOTHER A
v.
STATE OF ASSAM AND ORS.
(Civil Appeal Nos.8514-8515 of 2012)
NOVEMBER 30, 2012
B
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Service Law - Seniority - Inter se seniority - Of "regular
batch''l'direct recruits" vis-a-vis "special batch"!'promotional
recruits" - Determination - Held: On facts, appointment of C
special recruits though prior to appointment of regular direct
recruits was totally de hors the statutory rules - The special
recruits encroached into the quota of the direct recruits - A
maladroit effort was made to appoint the.special recruits first
despite the recommendation of the direct recruits pending D
before the State Government and though the Cabinet had not
approved the proposal for special drive to appoint from
another source - Also, no decision was taken to relax the
seniority rules in favour of the special recruits - Concept of
deemed relaxation not attracted for conferring any privilege E
to the special recruits - Thus, their seniority vis-a-vis the direct
recruits has to be pushed down - However, regard being had
to the delayed challenge to the selection of special recruits
and their long rendering of service in the posts and further
promotions having been effected, it would be inapposite to F
quash their appointments - Assam Police Service Rules,
1966 - rr.5, 18 and 23.
Service Law - Recruitment - Illegal recruitment - Effect
- Held: When there is violation of the recruitment rules, the
recruitment is unsustainable - Whether any active part is G
played by a selectee or not, has nothing to do with the
appointment made in contravention of the rules.
Service Law - Duty of the State - Held: State is a model
587 H
588 SUPREME COURT REPORTS [2012] 12 S.C.R.
A employer and it is required to act fairly giving due regard and
respect to the rules framed by it - Legitimate aspirations of
the employees not to be guillotined.
The Assam Public Service Commission issued
advertisement inviting applications for filling up 30
8
vacancies in the Assc.m Police Service (APS) in the
compartment of "regular batch" or "direct recruitment".
Subsequently, the Commission published another
advertisement inviting applications for filling up of 20
posts in the APS by way of special drive, in the category
C of "special batch" or "promotional recruits". One week
after examination for the regular batch was held,
examination for the special batch too was held. The
Commission declared the result in respect of regular
batch and recommended 30 candidates for appointment
D in order of merit. Despite such recommendation, no
appointment was made in respect of the regular batch.
At this juncture, the Government requested the
Commission to furnish the select list of special recruits.
The Commission sent its recommendations on basis of
E which, 19 persons were appointed for the special batch.
Thereafter, the Competent Authority appointed 28
persons from the regular batch. As the recruits of the
special batch were appointed earlier, they were treated
senior to the recruits belonging to the regular batch.
F
Aggrieved, the direct recruits (i.e. recruits belonging
to the regular batch) invoked the jurisdiction of the
tribunal claiming to be senior to the special recruits and
praying for apposite determination of inter se seniority
G vis-a-vis the special recruits. The tribunal directed re-
fixation of the seniority list. The o~der was upheld by the
High Court.
In the instant appeals, the fundamental questions
that emanated for consideration were, namely, whether
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 589
the appointments of special batch recruits had been A
made in violation of the rules; and if yes, whether such
appointments could be treated to be de hors the rules;
and whether the concept of relaxation was extended to
them or was extendable to them and further whether they
could avail the benefit under the second proviso to Rule B
18 of the Rules and whether the tribunal as well as the
High Court was justified in re-fixing the seniQrity without
quashing the appointment of the special batch recruits.
Dismissing the appeals, the Court
c
HELD: 1.1. Where recruitment of service is regulated
by the statutory rules, the recruitment must be made in
accordance with those rules and if any appointment is
made in breach of the rules, the same would be illegal and
the persons so appointed have to be put in a different D
class and they cannot claim seniority. [Para 26) [609-G-H]
1.2. In the case at hand, the special batch was
selected under Rule 5(1)(c) of the Assam Police Service
Rules, 1966. The proviso to Rule 5(1) of the 1966 Rules E
clearly lays a postulate that the number of posts filled up
under clause (c) shall not, at any time, exceed five per
cent of the total number of posts in the cadre and one
post in any particular year. It was fairly conceded before
this Court that five per cent in the cadre could not have
exceeded four posts. However, there was a requisition for F
20 posts to be filled up by special drive. Thus, there was
selection in excess of the quota provided in the Rule.
Nothing was shown to justify the departure since nothing
really could have been demonstrated as the Commission
had already recommended the names of the candidates G
meant for direct recruits. [Para 35] (617-C-E]
1.3. The Selection Committee had not recommended
the case of the special batch recruits to the Commission.
As the affidavit filed by the Secretary
., to the Commission H
590 SUPREME COURT REPORTS (2012] 12 S.C.R.
A before the tribunal clearly stated that the procedure was
not followed and the same has been accepted by the
tribunal and concurred with by the High Court, there is
no reason to differ with the same. The selection has been
made in excess of the quota and in the absence of a
B recommendation of the Selection Committee as
prescribed under the rules. Plainly speaking, a maladroit
effort was made to appoint the special batch recruits first
despite the recommendation of the direct recruits
pending before the State Government. It is also
C disturbing that though the Cabinet had not approved the
proposal for special drive to appoint from other source
yet the Director General of Police impressed upon the
Commission to recommend 20 names. It is also equally
perplexing that the concept of the special drive was
meant to have young officers but in the ultimate
0
eventuate, officers were nearing fifty got the appointment.
It is obvious that it was totally arbitrary and exhibits
indecent enthusiasm to confer benefits on the special
batch by making the rules comatosed. [Para 38) [620-H;
E 621-A-E]
1.4. When there is violation of the recruitment rules,
the recruitment is unsustainable. Whether any active part
is played by a selectee or not has nothing to do with the
appointment made in contravention of the rules. In the
F case at hand, the special batch recruits have encroached
into the quota of the direct recruits. The whole selection
was made de hors the rules. However, as there had been
long delay in challenging the selection of the special
batch recruits and some of them have already retired, it
G would not be apposite to annul their appointments. [Para
42) [622-B-E]
1.5. Rule 18 of the Assam Police Service Rules, 1966
deals with seniority. The two facets which emerge from
the scanning of the aforesaid Rule are that the seniority
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 591
of a member of the service is to be determined on the A
basis of the date of appointment to the service and the
seniority has to follow a particular order as has been
stipulated therein. The other significant aspect is that
power has been conferred on the Governor to consider
the previous service of an incumbent and fix a deemed B
date of appointment for the purpose of seniority by
adopting a specific method. As far as the first part is
concerned, the tribunal as well as the High Court has not
accepted the stipulation that in the present case the
seniority should be determined on the basis of the date C
of appointment as the same has been made in flagrant
violation of the rules and this Court concurs with the
same. As far as the computation of the previous service
is concerned, the High Court expressed the view that the
appointments had been made in contravention of the
rules, the question of conferment of the benefit under the D
second proviso to Rule 18(1) did not arise. The said
conclusion is absolutely defensible for the simon pure
reason when the infrastructure is founded on total illegal
edifice, the endeavour to put forth a claim for counting
the previous service to build a pyramid is bound to E
founder. [Para 44) [624-C-G]
i .6. As was observed by the High Court, there was
no decision to relax the rules in favour of the special
batch recruits. That apart, whenever there has to be F
relaxation about the operation of any of the rules, regard
has to be given to the test of causation of undue hardship
in any particular case. That apart, the authority is required
to record satisfaction while dispensing or relaxing the
requirements of any rule to such an extent and subject G
to such conditions as he may consider necessary for
dealing with the case in a just and equitable manner. The
language of the Rule really casts a number of conditions.
It provides guidance. It cannot be exercised in an
H
592 SUPREME COURT REPORTS [2012] 12 S.C.R.
A arbitrary manner so as to dispense with the procedure of
selection in entirety in respect of a particular class, for it
has to be strictly construed and there has to be apposite
foundation for exercise of such power. It is to be borne
in mind that if a particular rule empowers the authority to
8 throw all the rules overboard in all possibility, it may not
withstand close scrutiny of Article 14 of the Constitution.
Be that it may, no decision was taken to relax the rules
and, the concept of deemed relaxation is not attracted
and, therefore, the relief claimed by the special batch
C recruits has no legs to stand upon. [Para 46] [625-D-G]
1. 7. There can be no scintilla of doubt that the
selection of the special batch recruits was totally de hors
the Rules; that there was a maladroit effort to go for a
special drive when there was no need for the same by the
D State which is supposed to be a model employer; that
neither the concept of relaxation nor the conception of
benefit of Rule 18 would be attracted for grant of
conferring any privilege to the special batch recruits; that
their seniority has to be pushed down and, hence, the
E directions given by the tribunal and the High Court in that
regard are absolutely flawless; and that regard being had
to the delayed challenge and long rendering of service in
the posts and further promotions having been effected,
it would be inapposite to quash their appointments. [Para
F 47] [625-H; 626-A-C]
State of U.P. v. Rafiquddin and Others AIR 1988 SC 162:
1988 SCR 794; Roshan Lal and Others v. International Airport
Authority of India and Others 1980 (Supp) SCC 449; The Direct
G Recruit Class-JI Engineering Officers' Association and Others
v. State of Maharashtra and Others AIR 1990 SC 1607: 1990
(2) SCR 900; Madan Gopal Garg v. State of Punjab and Others
1995 Supp. (3) sec 366: 1995 (1) Suppl. SCR 815;
Maharashtra Vikrikar Karamchari Sangathan v. State of
Maharashtra and Another (2000) 2 SCC 552: 2000 (1) SCR
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 593
166; D. Ganesh Rao Patnaik and Others v. State of Jharkhand A
and Others (2005) 8 sec 454: 2005 (4) Suppl. SCR 102;
State ofW.B. and Others v. Aghore Nath Dey and Others (1993)
3 SCC 371: 1993 (2) SCR 919; State of Haryana and others
v. Vijay Singh and Others (2012) 8 SCC 633; University of
Kashmir and Others v. Dr. Mohd. Yasin and Others (1974) 3 B
SCC 546: 1974 (2) SCR 154; Swapan Kumar Pal and Others
v. Samitabhar Chakraborty and Others (2001) 5 SCC 581:
2001 (3) SCR 641; State of Haryana v. Haryana Veteminary
and AHTS Association and Another (2000) 8 SCC 4: 2000
(3) Suppl. SCR '322 - relied on. c
Dali/ah Sojah v. State of Kera/a and Others (1998) 9
SCC 641; Bachan Singh v. Union of India (1972) 3 SCC 489:
1972 (3) SCR 898; Narender Chadha v. Union of India (1986)
6 SCC 157; J.C. Yadav v. State of Haryana (1990) 2 SCC
189: 1990 (2) SCR 470 and AK Subraman v. Union of India D
AIR 1975 SC 483: .1975 (2) SCR 979 - referred to.
2. The State is a model employer and it is required
to act fairly giving due regard and respect to the rules
framed by it. But in the present case, the State has E
atrophied the rules. Hence, the need for hammering the
concept. It is hoped that in future a deliberate disregard
is not taken recourse to and deviancy of such magnitude
is not adopted to frustrate the claims of the employees.
It should always be borne in mind that legitimate F
aspirations of the employees are not guillotined and a
situation is not created where hopes end in despair.
Hope for everyone is gloriously precious and a model
employer should not convert it to be deceitful and
treacherous by playing a game of chess with their
seniority. A sense of calm sensibility and concerned G
sincerity should be reflected in every step. An
atmosphere of trust has to prevail and when the
employees are absolutely sure that their trust shall not
be betrayed and they shall be treated with dignified
H
594 SUPREME COURT REPORTS [2012] 12 S.C.R.
A fairness then only the concept of good governance can
be concretized. [Paras 48, 53] [626-D; 627-C-F]
Bairam Gupta vs. Union of India & Anr. 1987 (Supp)
SCC 228; State of Haryana v. Piara Singh and Ors. (1992)
4 SCC 118: 1992 (3) SCR 826; Secretary, State of Kamataka
B
And vs. Umadevi And Others (2006) 4 SCC 1: 2006 (3) SCR
953 and Mehar Chand Polytechnic & Anr. vs. Anu Lamba &
Ors. (2006) 7 sec 161: 2006 (4) Suppl. SCR 436 - relied
on.
c Case Law Reference:
1988 SCR 794 relied on Para 8, 14, 24
(1998) 9 sec 641 referred to Para 8
1972 (3) SCR 898 referred to P<!ra 13
D
(1986) 6 sec 151 referred to Para 13
1990 (2) SCR 470 referred to Para 13
1980 (Supp) sec 449 relied on Para 22
E
1990 (2) SCR 900 relied on Para 27
1975 (2) SCR 979 referred to Para 27
1995 (1) Suppl. SCR 815 relied on Para 28
F 2000 (1) SCR 166 relied on Para 29
2005 (4) Suppl. SCR 102 relied on Para 30
1993 (2) SCR 919 relied on Para 32
G (2012) a sec 633 relied on Para 33
1974 (2) SCR 154 relied on Para 40
2001 (3) SCR 641 relied on Para 40
2000 (3) Suppl. SCR 322 relied on Para 40
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 595
1987 (Supp) sec 228 relied on Para 49 A
1992 (3) SCR 826 relied on Para 50
2006 (3) SCR 953 relied on Para 51
2006 (4) Suppl. SCR 436 relied on Para 52
B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8514-8515 of 2012.
From the Judgment & Order dated 09.09.2008 of High
Court of Gauhati in Writ Appeal Nos. 448 & 465 of 2004. c
WITH
C.A. No. 8516 of 2012.
M.N. Krishnamani, V. Shekhar, Azim H. Laskar, Abhijit D
Sengupta, Prashant Bhushan, Sachin Das, Avijit Roy (for
Corporate Law Group), Balraj Dewan for the appearing parties.
The judgment of the Court was delivered by
DIPAK MISRA, J. 1. Leave granted. E
2. In these appeals, the challenge is to the common
judgment and order dated 9.9.2008 passed by the Division
Bench of the High Court of Gauhati, Assam in WA Nos. 448 of
2004, 459 of 2004 and 465 of 2004 whereby stamp of approval F
has been given to the judgment and order dated 19.11.2004
passed by the learned single Judge in WP(C) Nos. 7482 of
2002, 7843 of 2002, 7564 of 2002, 8081 of\2002 and 298 of
2003 whereunder the learned single Judge had maintained the
order dated tt.10.2002 passed by the-Assam Administrative
Tribunal, Guwahati (for short "the tribunal") in Appeal Case No. G
79ATA of 1999, and dismissed WP(C) Nos. 4028 of 2003,
4129 of 2003 and 1031 of 2003 which were preferred directly
for issuance of mandamus commanding the respondent
authorities to consider the previous services rendered by the
petitioners therein prior to their appointments in the Assam H
596 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Police Service (Junior Grade) in the year 1993 and to
determine their inter se seniority in the promotional cadre
accordingly and further disposed of WP(C) 69 of 2003
preferred by an Additional Superintendent of Police, Guwahati
for quashing of the appointment to the promotional post of the
B private respondents therein on the foundation that they had
been promoted in violation of the provisions of the Assam
Police Service Rules, 1966 (for brevity "the 1966 Rules').
3. Shorn of unnecessary details, the facts which are
C requisite to be stated are that the Assam Public Service
Commission (for short "the Commission") issued an
advertisement No. 9/92 dated 23.6.1992 inviting applications
for preliminary examination for the Combined Competitive
Examination, 1992-93 for selecting candidates for various
posts and services including thirty vacancies in the Assam
D Police Service (Junior Grade) (for short "the APS") as
requisitioned by the Commissioner-cum-Secretary to the
Government of Assam in the Department of Personnel on
5.9.1992. On 29.8.1992, the Commission published another
advertisement No. 12/92 inviting applications for filling up of 20
E posts in the APS under Rule 5(1)(c) of the 1966 Rules. There
is no dispute that the initial 30 vacancies were put in the
compartment of "regular batch" or "direct recruitment" and the
other 20 vacancies, which were sought to be filled up by way
of special drive, were kept in the category of "special batch" or
F "promotional recruits". The main examination for the regular
batch was held on 15.11.1992 for total marks of 1400. The
examination for the special batch was held on 22.11.1992 for
650 marks. The Commission declared the result in respect of
regular batch on 23.4.1993 and, vide letter dated 24.4.1993,
G recommended 30 candidates for appointment in order of merit.
Despite the recommendation by the Commission, no
appointment was made till 13.8.1993. At this juncture, the
Commissioner-cum-Secretary to the Government of Assam in
the Department of Home requested the Commission to furnish
·
\:! the select list of the special recruits at the earliest. On the basis
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 597
[DIPAK MISRA, J.]
of the aforesaid letter of request, the Commission sent its A
recommendations in respect of the candidates belonging to the
special batch and on the basis of the said recommendation,
vide notification No. HMA.478/86/Pt-l/17 dated 3.7.1993, the
respondent Nos. 6 to 24 before the tribunal were appointed .
. The respondent No. 25 was appointed on 31.81994. Thereafter, B
the Competent Authority, vide notification No. HMA.110/93/43
dated 13.8.1993, appointed 28 persons from the regular batch.
As the recruits of the special batch were appointed earlier, they
were treated senior to the recruits belonging to the regular
batch. c
4. The facts, as further uncurtained, are that the
determination of seniority came to the notice of the recruits of
the regular batch at the time of their confirmation of service in
the year 1999. Being dissatisfied with the action of the
authorities, they immediately submitted a representation. When D
the representation was pending consideration, a provisional
gradation list showing the inter se seniority as on 31.12.1992
was published on 12.3.1999. In the said provisional gradation
list, the recruits of the special batch were shown as senior to
the recruits of the regular batch. As warranted, the recruits E
belonging to the regular batch filed their objections to the
fixation of seniority on 24.9.1999, but without publishing the final
gradation list, the respondent No. 3, namely, the Secretary in
the Department of Home, promoted 14 officers belonging to
the special batch and 16 officers belonging to the regular batch F
to the Senior Scale of APS (Grade-II). In the promotional order,
the officers belonging to the regular batch were shown below
the officers belonging to the special batch. Because of the
aforesaid situation. the direct recruits invoked the jurisdiction
of the tribunal for the apposite determination of seniority G
claiming to be senior to the respondent Nos. 6 to 24.
5. The claim of the appellants before the tribunal was
resisted by the respondent-State and the private respondents
therein on many a ground including the one that the appeal was
H
598 SUPREME COURT REPORTS [2012] 12 S.C.R.
A barred by limitation. It is worthy to note that in an affidavit, the
Secretary to the Commission asseverated that the Government
had not consulted the Commission before publishing the
provisional gradation list; that when the selection process for
the regular batch was already underway, there was no
B justification whatsoever to go for special recruitment; that the
recourse taken to fill up the posts by way of special recruitment
was in gross violation of the rules and procedure inasmuch as
all vacancies could have been filled up by resorting to the usual
and regular procedure of recruitment; that the Competent
C Authority of the State Government should have acted on the list
sent by the Commission relating to the regular candidates in
quite promptitude but delayed it for no apparent reason and
called for the recommendation for the special batch and issued
letters of appointment in their favour which exhibited
unwarranted interest; and that the inter se seniority deserved
0
to be refixed and the regular batch should be treated to be
senior to the special batch.
6. The tribunal dealt with the issue of limitation and
observed that the appeal did not concern itself with the validity
E or propriety of the appointments of the respondent Nos. 6 to
25 but fixation of inter se seniority and hence, the appeal was
not barred under the provisions of the Assam Administrative
Tribunals Act, 1977. It further opined that it was curious that
despite the fact that the recommendation in respect of the
F regular batch had already been forwarded to the Government
by the Commission, no steps were taken. The aforesaid act of
the authority, observed the tribunal, on one hand, exposited
lackadaisical attitude in dealing with the case of the regular
batch and, on the other, unreasonable alacrity in the
G appointment of the special batch. The tribunal attributed motive
to such an action and proceeded to opine that there was no
administrative decision by the appropriate authority for making
appointment to the service by resorting to the process of
special recruitment in preference to general recruitment.
H 7. It.is apt to note that the tribunal referred to various
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 599
[DIPAK MISRA, J.]
departmental communications including the letter dated A
17.8.1991 which emanated from the Office of the DGP
proposing to enlist 20 Deputy Superintendent of Police from
otber departments under Rule 5(1)(c) of the 1966 Rules. The
tribunal referred to Rules 5, 7 and 8 of the 1966 Rules and
came to hold that a close perusal of the provisions of the B
service Rules clearly show that recruitment by resorting to
clause (c) of sub-rule (1) of Rule 5 should be made only in
special cases and at all time such recruitment must be limited
only to 5 per cent of th,e total number of posts in the cadre and
such special recruitment must be limited only to one post in a C
particular year. It further stated that the 1966 Rules are quite
silent as regards carry forward of such posts and, therefore,
there could not have been accumulation of vacancies to be filled
up by resorting to the provision contained in clause (c) of sub-
rule (1) of Rule 5 and as such, the question of selecting and
appointing as many as 20 persons in a year did not arise. The D
tribunal further held that as per Rule 8(1 ), the Governor is
required to call for recommendations from the recommending
authorities for the purpose of recruitment to the service under
clause (c) of sub-rule (1) of Rule 5 and the recommending
authorities are also required to submit recommendations in E
respect of the persons having regard to the laid down criteria
but in the instant case, the said procedure was given a total
go by which is not permissible. The tribunal further noticed that
Rule 8(2), which is mandatory, provides that all the
recommendations are required to be submitted before the F
selection committee constituted under Rule 7(1) and the
selection committee is required to interview the recommended
candidates and prepare the select list and, ~herefore, the
Commi!lsion, in no circumstance, could have been entrusted
with the responsibility of interviewing, testing, selecting and G
recommending any candidate for special recruitment under
clause (c) of sub-rule (1) of Rule 5. In this backdrop, the tribunal
observed that, admittedly, all the processes undertaken by the
Commission and the third respondent were in gross violation
H
600 SUPREME COURT REPORTS (2012] 12 S.C.R.
A of the mandatory provisions of the Rules and hence, the,
selection was not valid.
8. After so stating, the tribunal proceeded to hold that as
the respondent Nos. 6 to 25 had been appointed in violation of
the rules, they could not be treated as regular recruits within the
8
meaning of Rule 5(1 )(a) of the 1966 Rules. It also stated that
had the appeal been filed earlier in a different form, the selection
and appointment of the special batch recruits could have
possibly been set aside. Eventually, the tribunal placing reliance
on State of U.P. v. Rafiquddin and Others1 and Dali/ah Sojah
C v. State of Kera/a and Others2, came to hold that due to
unreasonable delay and inaction on the part of the Government
in notifying the appointments, the regular batch candidates, who
were earlier recommended by the Commission, could not be
put in jeopardy and lose their seniority and accordingly directed
D for refixation of the seniority list. It further directed that the
regular batch shall be allowed consequential benefits with effect
from the date on which the senior most member of the special
batch availed of any benefit even by creating supernumerary duty
post in the cadre.
E
9. Being dissatisfied with the order passed by the tribunal,
as has been stated earner, certain writ petitions were preferred
and some writ petitions were directly filed before the High Court
seeking quashment of the appointment of the private
F respondents as Deputy Superintendent of Police. The prayer
in the other batch of writ petitions was to treat the direct recruits
as per the rules regard being had to their date of appointment
and to extend the benefit of earlier services as stipulated under
Rule 18 of the 1966 Rules.
G 10. The learned single Judge adverted to the facts in detail,
the proposal before the Cabinet for appointment of 20 officers
in the post of Deputy Superintendent of Police by taking resort
1. AIR 1988 SC 162.
H 2. c100ai 0 sec 641.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 601
[DIPAK MISRA, J.]
to Rule 5(1)(c) of the 1966 Rules and basically posed three A
questions, namely, (i) whether the appeal preferred before the
tribunal was barred by limitation; (ii) whether the members of
the regular batch could be treated as senior when their
appointments were violative of the recruitment process as
envisaged under the relevant recruitment rules; and (iii) whether B
the tribunal was justified in directing rectification in the gradation
list when there was no appeal seeking removal of the special
batch recruits being in violation of the rules. Be it noted, as far
as question No. (iii) is concerned, the learned single Judge
framed five ancillary questions. c
11. While dealing with the facet of limitation, the learned
single Judge referred to the relevant provisions of the Act and
expressed the view that the appellants before the tribunal having
the remedy which was available to them in terms of the
directions contained in the circular dated 1.4.1999 were entitled D
to prefer the appeal in terms of the proviso to sub-section (2)
of Section 4 of the AAT Act, 1977 and hence, the appeal was
not barred by limitation.
12. Adverting to the facet of appointment, the learned E
single Judge scanned the anatomy of the 1966 Rules and
came to hold that the number of persons who got selected as
members of the special batch were not eligible for
consideration for appointment in terms of Rule 5(1)(c) and
further the procedure engrafted under the said sub-rule was not F
followed and, in fact, was mutilated and flouted in every
conceivable manner leading, eventually, to the appointment of
the members of the special batch. Dwelling upon the issue that
the appointments were arbitrary, malafide and discriminatory
vis-a-vis the appointment of the direct batch, the learned single G
Judge referred to the factual matrix pertaining to the
recommendations sent for recruitment by special drive, the
Cabinet Memorandum and the Cabinet decision and eventually
held that notwithstanding the fact that the proposal for
recruitment of twenty Dy. Superintendents of Police, as a H
602 SUPREME COURT REPORTS [2012] 12 S.C.R.
· A special case, was submitted by the Home Department and the
Government did not agree to the proposal, yet the decision to
make the recruitment and the manner and modalities for holding
of the interview and the test for the purpose of recruitment of
the Special Batch was taken in the chamber of the Chairman
B of the Commission, on the basis of a discussion held between
the then DGP, Assam, and the Chairman of the Commission
and, therefore, the decision, so reached, could not be termed
as a decision of the Government. He also observed that the
members of the Special Batch were selected throwing over-
C board, in entirety, the relevant recruitment rules. Regard being
had to chronology of events leading to the appointment of the
members of the Special Batch, the learned single Judge opined
that the entire exercise for selecting the Special Batch was
wholly de hors the relevant recruitment rules. The urgency shown
D by the Government to obtain the result of the examination held
in respect of the Special Batch was an indication that the
Government was waiting, for no justified and valid reason, to,
first, make appointment of the members of the Special Batch,
though selected in complete disregard of the Rules, and, then,
E issue appointment in respect of the members of the Direct
Batch, whose process of selection was never questioned. After
so stating, the learned single Judge held that contrary to the
provisions of Rule 5(1 )(c), which prescribes upper age limit for
selection to be 35 years and throwing to the wind the very
purpose for which special recruitment was sought to be made,
F the age was relaxed to 45 years and persons, who were born
in 1942, came to be selected in the year 1992, and thereby
many of the officers recruited under the special drive were as
old as 50 years, whereas proposal for the special drive was
made on the pretext of recruiting young officers. He also opined
G that the whole process of selection of the special batch
recruited was malafide and arbitrary.
13. After so stating, the learned single Judge dealt with
issues whether the appointments were ab-initio void, whether
H the relevant rules of recruitment were relaxed in respect of the
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM. 603
[DIPAK MISRA, J.]
special batch at the time of making their recruitment and what A
was the permissible limit of relaxation and whether there can
be deemed relaxation. Delving into the said aspects, the
learned single Judge ruled that while appointing the special
batch, the rules of recruitment were completely shelved, no
order of relaxation was passed under Rule 23 relaxing the B
provisions contained in Rule 5(1)(c) of the 1966 Rules; and that
there could not have been any deemed relaxation. The learned
single Judge referred to various pronouncements of this Court
with regard to relaxation and deemed relaxation and expressed
the view that the Special Batch was recruited, ostensibly, on C
the ground that the department was in need of young officers
in the grade of Deputy Superintendent of Police, but the officers
recruited were as old as 50 years, and, thus, the very purpose
for which the proposal was mooted stood defeated. The writ
court discussed the ratio laid down in Bachan Singh v. Union D
of lndia3, Narender Chadha v. Union of lndia 4 and J.C. Yadav
v. State of Haryana 5 and held that contrary to the facts of the
case of J.C. Yadav (supra), wherein the relaxation of the rules
could be justified by the Government, the State-respondent had,
in the obtaining factual matrix, miserably failed to show any E
justification to relax the rules and in any case could not have
relaxed the rules to such an extent to make it nugatory. It was
also observed that when the Cabinet Memorandum had failed
to receive the approval of the Cabinet, the then DGP, Assam,
in consultation with the Chairman of the Commission, could not
have, through the back-door and with the help of an authority F
like the Commission, flouted the relevant rules and made the
appointments.
14. The learned single Judge ruled that the appointment
in the promotional cadre was de hors the rules and, therefore, G
the court cannot direct that the period of service rendered in
3. (1972) 3 sec 489.
4. (1986) s sec 157.
. 5. (1990) 2 sccc 189. H
604 SUPREME COURT REPORTS [2012] 12 S.C.R.
A the promotional post by virtue of illegal promotional appointment
should be counted for the purpose of seniority. Relying on the
pronouncement in Raffiquddin (supra), the learned single Judge
held that the case in hand is more akin to the facts of
Raffiquddin (supra) and ruled that it is possible that without
B setting aside and quashing the appointment of an irregular
appointee, the Court or tribunal may direct the appointing
authority to treat a regular appointee in service, though
appointed later in point of time than the irregular appointee, as
senior to the irregular appointee.
c 15. It is worthy to note that the learned single Judge referred
to Rule 18 of the 1966 Rules which clearly states that the
seniority of the members of the service shall be determined on
the basis of their respective dates of appointment to the service.
He distinguished the applicability of Rule 18 and ultimately
D maintained the order passed by the tribunal and dismissed the
writ petitions challenging the order of the tribunal. It is apt to
note that in WP(C) 69 of 2003 wherein the petitioner had
directly approached the High Court for quashment of the ·
appointments of the special batch recruits, the learned single
E Judge observed that the appointments of the special batch
deserved to be set aside and quashed, but he refrained from
doing so considering the period of service which they had
rendered.
F 16. Being dissatisfied with the aforesaid order, the special
recruits preferred WA Nos. 448 of 2004 and 465 of 2004. WA
459 of 2004 was filed by the recruits under Rule 5(1)(a) of the
1966 Rules .. The Division Bench noted the facts, adverted to
the orders passed by the tribunal and the learned single Judge,
G dealt at length with the submissions canvassed by the learned
counsel for the parties and came to hold that the tribunal had
jurisdiction to deal with the appeals and thereafter, dealing with
the stand that the appointments having not been challenged the
delineation thereof by the tribunal and the learned single Judge
H was barred by the doctrine of res judicata, repelled them on
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 605
[DIPAK MISRA, J.]
the base that the memorandum of appeal before the tribunal A
had graphically challenged the appointments to be non est
being in violation of the rules though that there was no prayer
for cancellation of the appointments. The Division Bench
analysed the scheme of the rules and stated that Rule 5(1 )(c)
envisages a selection in special cases from amongst the B
limited categories of persons referred to and the number of
vacancies to be filled up by that procedure has also been
restricted. The Division Bench referred to Rule 8 and regarded
it as unequivocal on the conditions of eligibility, commencement
of the process contemplated and the culmination thereof, and C
observed that the assessment of eligibility by the
Recommending Authority of the person is a sine qua non for
consideration of his candidature to be recruited. The candidate,
as per the mandate of Rule 8, has to be of outstanding merit
and ability, possessing the academic qualification as D
prescribed by Rule 10, should not be above 35 years of age
on the first day of the year in which the recommendations are
called for and should have not less than two years of experience
in duties comparable in status and responsibility to that of the
Deputy Superintendent of Police or 8 years of experience in
duties comparable in status and responsibility to that of the E
Inspector of Police.
17. After so stating, the Division Bench referred to various
authorities and, eventually, came to hold that though the
appointments of the special recruits had been made in F
deviation of the Rules, yet the same cannot by any means be
branded as de hors any procedure whatsoever known to public
employment. Their induction of the special recruits cannot be
equated with ad hoc, casual or temporary recruitments or an
entry through the backdoor and hence, their appointment cannot G
be regarded as de hors the rules. Dealing with the aspect of
seniority it ruled that their appointments not being in observance
, of the statutory provision stricto sensu, the fixation of their batch
wise seniority over the direct recruits of the same year is
impermissible and the benefit as stipulated under the proviso H
606 SUPREME COURT REPORTS (2012] 12 S.C.R.
A to Rule 18(1) was not extendable.
18. The Division Bench further opined that at such a
belated time their appointments could not be annulled. In the
ultimate analysis, the Division Bench concurred with the view
B expressed by the learned single Judge on the issue of fixation
of seniority.
19. It is worthy to note that in compliance of the judgment
and order passed by the learned single Judge, a notification
No. HMA.154/2004/Pt.1/176 was issued on 6.12.2004 wherein
C the direct recruits of the 1993 batch were placed above the
special recruits of the same year in the APS Senior Grade-II.
The Bench also perused file No. H.M.A. 10/99 of the Home
Department from which it transpired that the names of the
candidates to the promotional posts were recommended in
D order of preference following the same seniority in which their
names appeared in the provisional gradation list dated
12.3.1999 as the Selection Committee did not find any reason
justifying supersession of a senior by a junior. The Division
Bench noticed that as the inter se seniority of promotees was
E a replication of that in the provisional gradation list which has
been unsettled, the challenge to the notification dated
6.12.2004 was unsustainable. Being of this view, the Division
Bench dismissed all the appeals.
20. We have heard Mr. Prashant Bhushan, learned counsel
F representing the special batch recruits, and Mr. V. Shekhar,
learned senior counsel appearing for the direct re_cruits in all
the appeals.
21. The fundamental questions that emanate for
G consideration before this Court are, namely, whether the
appointments have been made in violation of the rules; whether
the selection of the special batch recruits if accepted to be in
violation of the rules, can be treated to be de hors the rules;
and whether the concept of relaxation has been extended to
H them or is extendable to them and further whether they can avail
BHUPENDRA NA"l H HAZARIKA v. STATE OF ASSAM 607
[DIPAK MISRA, J.]
•
the benefit under the second proviso to Rule 18 of the Rules A
and whether the tribunal as well as the High Court is justified
in refixing the seniority without quashing the appointment of the
special batch recruits.
22. Regard being had to the aforesaid issues, we think it B
seemly to refer to certain authorities in the field. In Roshan Lal
and others v. International Airport Authority of India and
Others6, a two-Judge Bench, while entertaining a petition under
Article 32 of the Constitution, held that when the appointments
were made in 1975 and the writ petition was filed in 1978, it
would not be justified in reopening the question of legality of C
the appointments of the respondents therein. The Bench also
noticed that the prayer in the writ petition was also confined
primarily to the seniority list and the consequences flowing from
the seniority list.
D
23. We have referred to the said pronouncement only for
the purpose that before the tribunal, the challenge was not for
the quashment of the appointments on the foundation that they
were made in violation of the rules and the propriety in the
matter of appointment of the special recruits was not maintained E
and that apart, the appeal was filed after a span of nine years
after the selection and appointment and hence, the principle
stated therein is squarely applicable to the case at hand.
24. Be it noted, the tribunal as well as the High Court has
placed reliance on Rafiquddin and Others (supra) to refix the F
seniority and justify the direction for refixation of seniority by
putting the direct recruits over and above the special recruits
on the foundation that it was necessitous to strike the balance.
In Rafiquddin case (supra), the U.P. Public Service
Commission published a notification on September 3, 1970 G
inviting applications for recruitment to 85 posts of Munsifs. It
recommended names of 46 candidates for appointment on
October 25, 1971. The State Government requested the
6. 1980 (Supp) sec 449. H
608 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Commission to recommend some more candidates by
suggesting that minimum of 40% marks may be reduced to
35%. Considering the said request, the Commission forwarded
another list of 33 candidates on April 25, 1972. All the 79
candidates were appointed between May 1972 to June 12,
B 1973. Thereafter, on July 17, 1973, a notification was issued
determining the inter se seniority of all the 79 candidates under
Rule 19 of the U.P. Civil Service (Judicial Branch) Rules, 1951.
In the meantime, the UP Public Service Commission held
another competitive examination for appointment to the posts
c of 150 Munsifs and, eventually, they were appointed on different
dates between 1975 to 1977. As the factual narration would
show, a proposal was sent by the State Government to the
Commission requesting it to reconsider the result of the
examinations of 1967, 1968, 1969 and 1970 for appointment
0 to the service of persons/candidates who might have obtained
40% of marks or more in the aggregate even if they had failed
to secure the minimum marks in the viva voce test. The
Commission declined to accede to the said request. A meeting
was held by the High Level Committee and, eventually, a third
list of 37 candidates was sent by the Commission for the
E aforementioned years in which list the name of Rafiquddin
featured. As out of 37 candidates, 16 had already appeared
in the 1972 examination and had been selected, the
Government requested the Commission to select 16 more
candidates from the 1972 examination. In pursuance of the
F Government's request, the Commission forwarded the list of 16
candidates for appointment. In this factual matrix, in March,
1977, the State Government published a seniority list of
successful candidates of the competitive examination of 1970.
The candidates belonging to the third list made a
G representation to the High Court for determining their seniority
in accordance with Rule 22 of the Rules on the footing that they
were recruited to service in pursuance of the 1970 examination
and, therefore, they were entitled to the seniority as candidates
belonging to that examination irrespective of their appointment
H made in 1975. They claimed seniority above the recruits of the
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 609
[DIPAK MISRA, J.]
1972 examination. As the representation was rejected, a writ A
. petition was filed and the High Court allowed the same on the
ground that as the third category candidates were appointed
on the basis of the result of the 1970 examination, they were
to be treated as senior in accordance with the stipulates
engrafted under Rule 22 of the Rules. While dealing with such B
a situation, this Court scanned the anatomy of the Rules and
its purport, the role of the Commission and held that the
selection and appointment of 21 Munsifs at the later stage was
invalid. However, it declined to strike down their appointments
in view of the fact that they had already rendered 12 years of c
service.
· 25. After so holding, the Bench proceeded to deal with the
issue as to what seniority should be assigned to the unplaced
candidates who were appointed. In that context, the Bench
came to hold that as they were appointed not in accordance D
with the rules, they could not be treated as selectees under the
1970 examination for the purpose of determining their seniority
under Rule 22 of the Rules and, accordingly, the Bench directed
that the said candidates have been placed below the
candidates of recruits of the 1972 examination. In the 1972 E
examination, 16 candidates were appointed to the service on
the basis of the result of the 1972 examination and their
appointment did not suffer from any legal infirmity and they were
entitled to seniority of the recruits of the 1972 examination on
the basis of their position in the merit list but they were not F
entitled to be treated as senior on the basis of the 1970
examination.
26. We have referred to the facts in detail and what this
Court had ultimately held only for the purpose that where G
recruitment of service is regulated by the statutory rules, the
recruitment must be made in accordance with those rules and
if any appointment is made in breach of the rules, the same
would be illegal and the persons so appointed have to be put
in a different class and they cannot claim seniority.
H
610 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 27. In The Direct Recruit Class-II Engineering Officers'
Association and Others v. State of Maharashtra and Others 7,
the Constitution Bench was dealing with the issue of seniority
between direct recruits and the promotees under the
Maharashtra Service of Engineers (Regulation of Seniority and
B Preparation and Revision of Seniority Lists for Specified
Period) Rules, 1982. The Constitution Bench referred to the
decision in AK. Subraman v. Union of lndia8 and ruled that if
a rule fixing the ratio for recruitment from different sources is
framed, it is meant to be respected and not violated at the
c whims of the authority. It ought to be strictly followed and not
arbitrarily ignored. A deviation may be permissible to meet the
exigencies. The Constitution Bench posed the question as to
what would be the consideration if the quota rule is not followed
at all continuously for a number of years and it becomes
0 impossible to adhere to the same. The Constitution Bench
opined that if the rule fixes the quota and it becomes
impracticable to act upon, it is of no use insisting that the
authorities must continue to give effect to it. But the Government,
before departing from the rule, must make every effort to
respect it and only when it ceases to be feasible to enforce it,
E then it has to be ignored. In such a situation, if appointments
from one source are made in excess of the quota but in a
regular manner and after following the prescribed procedure,
there is no reason to push down the appointees below the
recruits from other sources who are inducted in the service
F subsequently. A reference was made to the rules that permitted
the Government to relax the provisions fixing the ratio. In the
said case, the Court observed that there was no justification
to urge lack of bona fide on the part of the State. Eventually,
the Bench summed up its conclusions and we proceed to
G reproduce some of them which are relevant for our purpose: -
"(A) Once an incumbent is appointed to a post according
7. AIR 1990 SC 1607.
H 8. AIR 1975 SC 483.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 611
[DIPAK MISRA, J.)
to rule, his seniority has to-be counted from the date of his A
appointment and not according to the date of his
confirmation. The corollary of the above rule is that where
the initial appointment is only ad hoc and not according to
rules and made as a stop-gap arrangement, the officiation
in such post cannot be taken into account for considering B
the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointee
continues in the post uninterruptedly till the regularisation C
of his service in accordance with the rules, the period of
officiating service will be counted.
)()()( )()()( )()()(
(D) If it becomes impossible to adhere to the existing quota D
rule, it should be substituted by an appropriate rule to meet
· the needs of the situation. In case, however, the quota rule
is not followed continuously for a number of years because
it was impossible to do so the inference is irresistible that
the quota rule had broken down.
E
(E) Where the quota rule has broken down and the
appointments are made from one source in excess of the
quota, but are made after following the procedure
prescribed by the rules for the appointment, the appointees
should not be pushed down below the appointees from the F
other source inducted in the service at a later date."
28. In Madan Gopal Garg v. State of Punjab and Others9,
the controversy related to inter se seniority of promotees and
direct recruits in respect of the posts, namely, District Food and G
Supplies Controller and Deputy Director, Food and Supplies
in the State of Punjab governed by the Punjab Food and
Supplies Department (State Service Class II) Rules, 1966. After
analyzing the facts and the appointments in excess of quota,
9. 1995 Supp. (3) sec 366. H
612 SUPREME COURT REPORTS [2012] 12 S.C.R.
A the Court observed that the appointment of the controller was ·
in excess of the quota and it continued to be so till the
respondent No. 2 therein was appointed by direct recruitment.
In that context, the Bench opined:-
B "Once it is held that the appointment of the appellant was
in excess of the quota fixed for promotees and officers
appointed by transfer, the said appointment has to be
treated as an invalid appointment and it can be treated as
a regular appointment only when a vacancy is available
against the promotion quota against which the said
c appointment can be regularized. In other words, any such .
appointment in excess of the quota has to be pushed down
to a later year when it can be regularized as per the quota
and such an appointment prior to regularization cannot
confer any right as against a person who is directly
D appointed within the quota prescribed for direct recruits."
29. In Maharashtra Vikrikar Karamchari Sangathan v.
State of Maharashtra and Another0, a two-Judge Bench took
note of the fact that when promotions are made in excess of
E the prescribed quota and the Government had not taken any
conscious decision in accordance with law to treat the
promotions of excess promotees on regular basis, it would be
wrong to assert that such promotions were on regular basis. In
that context, the Bench further proceeded to state thus: -
F "Lastly, it was contended on behalf of the appellants that
some of the appellants have put in more than 17 years of
service when a few of the direct recruits were either
schooling and/or not born in the cadre. If the appellants
were to be pushed down, it would cause great hardship
G to them. We are unable to subscribe to this contention
because if there is patent violation of the quota rule, the
result must follow and the appellants who remained in the
office for all these years cannot take the advantage of this
H 10. c20ooi 2 sec 552.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM613
[DIPAK MISRA, J.]
situation. This submission is, therefore, devoid of any A
substance:
30. In D. Ganesh Rao Patnaik and Others v. State of
Jharkhand and Others 11, a three-Judge Bench was dealing with
inter se seniority between the direct recruits and the promotees B ."
under the Bihar Superior Judicial Service Rules, ·1946. The
Bench also dealt with the concept of temporary posts and the
computation of posts under Rule 6 therein, the definition of
cadre and posed a question whether the temporary posts of
Additional District and Sessions Judges are to be included in C
the cadre. After referring to various decisions, the Court opined
that for determining the quota of direct recruits, both the
temporary and permanent posts have to be counted and taken
into consideration and their quota cannot be confined to
permanent posts alone. In the said case, the promotees had
exceeded their quota and entrenched into the quota of direct D
recruits and, in that context, the Court held that the promotion
/ given to the promotees was not in accordance with law. The
Court further proceeded to state that it did not lie in the mouth
of the respondent therein to contend that the quota rule had
broken down or that though their promotions were made beyond E
the quota fixed for promotees, yet the same should be treated
not only perfectly valid but also in a manner so as to give them
the benefit of seniority over the direct recruits. Eventually, the
Bench ruled that the inevitable conclusion was that the
contesting respondent could not claim seniority over the F
appellant.
31. We have referred to the aforesaid pronouncements to
restate the legal principle that if the quota rule has been broken
down, the appointee should not be pushed down below the G
appointees from other source; but, the Government before
departing from the rule must make every effort to respect it and
then only it may proceed to appoint from other source.
12. c2oos) a sec 454. H
614 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 32. At this juncture, it is necessary to state that the decision
in The Direct Recruit Class II Engineering Officers'
Association (supra) was clarified by a three-Judge Bench in
State of W.B. and Others v. Aghore Nath Dey and Others12
as the later Bench perceived an apparent contradiction in
B conclusions (A) and (B). While clarifying, the Bench has stated
thus: -
"19. The constitution bench in Maharashtra Engineers
case (supra), while dealing with Narender Chadha (supra)
emphasised the unusual fact that the promotees in
c question had worked continuously for long periods of
nearly fifteen to twenty years on the posts without being
reverted, and then proceeded to state the principle thus:
(SCC p. 726, para 13)
D "We, therefore, confirm the principle of counting
towards seniority the period of continuous
officiation following an appointment made in
accordance with the rules prescribed for regular
substantive appointments in the service."
E
20. The constitution bench having dealt with Narender
Chadha (supra) in this manner. to indicate the above
principle. that decision cannot be construed to applv to
cases where the initial appointment was not according to
rules.
F
)()()( )()()( )()()(
22. There can be no doubt that these two conclusions have
to be read harmoniously, and conclusion (B) cannot cover
G cases which are expressly excluded by conclusion (A). We
may, therefore, first refer to conclusion (A). It is clear from
conclusion (A) that to enable seniority to be counted from
the date of initial appointment and not according to the
H 12. (1993) 3 sec 371.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 615
[DIPAK MISRA, J.]
date of confirmation, the incumbent of the post has to be A
initially appointed 'according to rules'. The corollary set out
in conclusion (A), then is, that 'where the initial appointment
is only ad hoc and not according to rules and made as a
stopgap arrangement, the officiation in such posts cannot
be taken into account for considering the seniority'. Thus, 8
the corollary in conclusion (A) expressly excludes the
category of cases where the initial appointment is only ad
hoc and not according to rules, being made only as a
stopgap arrangement. The case of the writ petitioners
squarely falls within this corollary in conclusion (A), which C
says that the officiation in such posts cannot be taken into
account for counting the seniority."
Thereafter, the Bench proceeded to state as follows: -
"Admittedly, this express requirement in Rule 11 was not o
followed or fulfilled subsequently, and, therefore, the initial
ad hoc appointments cannot be treated to have been
made according to the applicable rules. These ad hoc
appointments were clearly not in accordance with the rules,
and were made only as a stopgap arrangement for fixed E
period, as expressly stated in the appointment order itself."
[Emphasis supplied)
33. Recently, in State of Haryana and Others v. Vijay
Singh and Others 13, the question arose with regard to the F
fixation of seniority in the backdrop of ad hoc initial appointment
made de hors the statutory rules but later on services were
regularized by the State Government. The Court took note of
the fact that the respondents therein were neither appointed by
the competent authority on the recommendations made by the G
Board which was constituted by the Governor of Haryana nor
were they placed on probation as required under the rules and,
therefore, their ad hoc period could not be counted for the
13. (20120 a sec 633. H
616 SUPREME COURT REPORTS [2012] 12 S.C.R.
A purpose of fixation of seniority. Thus, emphasis was laid that
when appointment is made without following the procedure
prescribed under the rules, the appointees are not entitled to
have the seniority fixed on the basis of the total length of
service. In essence, it has been ruled that when the appointment
B is made de hors the rules, the appointee cannot claim seniority
even if his appointment is later on regularized.
34. Regard being had to the aforesaid enunciation of law
pertaining to fixation of seniority when the initial appointment
C is made in breach of rules and further departure from provision
pertaining to quota in their essential nature, it is apposite to
refer to the relevant rules of the 1966 Rules. Rule 4 defines the
'Cadre'. Rule 4(1)(a) deals with the categories of posts in the
junior grade and Rule 4(1)(b) deals with the senior grade posts.
Rule 5 provides for the recruitment and procedure of selection,
D etc. Rule 5(1), being pertinent, is reproduced below:-
"5. Methods of recruitment to the service. (1)
Recruitment to the service, after the commencement of
these rules, shall be by the following methods, namely:
E
(a) by a competitive examination conducted by the
Commission;
(b) by promotion of confirmed Inspectors of Police;
and
F
(c) by selection, in special case, from amongst -
(i) persons other than Inspectors of Police serving
in connection with the affairs of the Government;
and
G
(ii) other persons having qualifications and
experiences eminently suitable for service in the
Police Department in the rank of Deputy
Superintendent of Police :
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 617
[DIPAK MISRA, J.]
Provided that fifty per cent of the total number of posts A
in the cadre shall be filled up by recruitment under Cls. (a)
and (c) and the other fifty per cent exclusively under Cl. (b),
and that the number of posts filled up under Cl. (c) above
shall not at any time exceed five per cent of the total
number of posts in the cadre and one post in any particular B
year."
35. On scanning of Rule 5(1), it is evident that various
methods have been stipulated for recruitment. In the case at
hand, the direct recruits have been recruited by way of
competitive examination conducted by the Commission. The C
special batch has been selected under Rule 5(1)(c). In that
context, the proviso to Rule 5(1) of the 1966 Rules is significant.
It clearly lays a postulate that the number of posts filled up under
clause (c) shall not, at any time, exceed five per cent of the total
number of posts in the cadre and one post in any particular year. D
As has been stated hereinabove, there was a requisition for
20 posts to be filled up by special drive. On a query being
made during hearing, it was fairly conceded before us that five
per cent in the cadre could not have exceeded four posts. Thus,
there has been selection in excess of the quota provided in the E
Rule and nothing had been shown to justify the departure since
nothing really could have been demonstrated as the
commission had already recommended the names of the
candidates meant for direct recruits.
36. Rule 8 deals with recruitment by selection. It is F
reproduced hereunder:-
"8. Recruitment by selection. (1) The Governor may,
from time to time, for the purpose of recruitment to the
service under Cl. (c) of sub-R. (1) of R. 5, call upon the G
recommending authorities to submit recommendations in
respect of persons who-
(a) are of outstanding merit and ability;
(b) have to their credit not less than 2 years of
experience in duties comparable in status and H
618 SUPREME COURT REPORTS [2012] 12 S.C.R.
A responsibility to that of Deputy Superintendent of
Police or 8 years of experience in duties
comparable in status and responsibility to that of
Inspectors of Police;
(c) possess the academic qualification prescribed
B
under R.1 O; are not above the age of 35 years on
the 1st day of the year in which the
recommendations are called for; and are otherwise
eligible, in the opinion of recommending authorities
to be appointed to the service.
c
(2) On receipt of the recommendations, the Governor shall
refer them and also simultaneously send the character rolls/
testimonials of character and service records/other
relevant records of the persons recommended to the
D committee which will, after examination of the records
forwarded to it and interviewing, such of the persons
recommended as it considers necessary, draw up a list
of persons in order of the preference who are considered
suitable for appointment to the service. The procedure
E details in sub-Rr. (4) to (7) of R. 7, mutatis mutandis be
followed in regard to the list of persons prepared under this
sub-rule.
(3) For every recruitment a separate list shall be drawn up
and the list once approved by the Commission shall lapse
F immediately on the year's quota of posts for persons under
Cl. (c) of sub-R. (1) of R. 5 having been filled up from the
list."
37. On a perusal of the aforesaid Rule, it is graphically clear
G that the recommending authority has to submit the
recommendations to the Governor regard being had to certain
aspects which have been prescribed under Rule 8(1). Rule
8(1 )(d) prescribes the age limit on the first date of the year in
which the recommendations are called for. Sub-rule (2) of Rule
H 8 stipulates that the procedure detailed in sub-rules (4) to (7)
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 619
[DIPAK MISRA, J.]
of Rule 7 mutatis mutandis be followed in regard to the list of A
persons prepared. In this context, it is necessary to reproduce
sub-rules (4) to (7) of Rule 7 which are as follows:-
"(4) The list prepared by the Committee shall give the
names in order of preference and the total number of such B
names shall not be more than double the number of
vacancies that may arise in the promotion quota of the
cadre and the ex-cadre temporary posts of the rank of
Deputy Superintendent of Police during a period of
approximately one year thereafter. In every case, where in
drawing up the list the committee changes the order of C
seniority of any person in the rank of Inspector of Police
or supersedes any one in that rank by omission of his
name, the Committee shall record in writing the reason for
such change or supersession.
D/
(5) The Committee shall forward the list to the Governor
and on receipt of the list the Governor shall forward the
same to the Commission together with the character rolls
and other relevant papers.
(6) The Commission shall consider the list prepared by the E
Committee along with other documents received from the
Governor or on receipt of other documents as may be
called for by the Commission unless it considers any
change necessary, approve the list. If the Commission
considers any change necessary, it shall inform the F
Governor of the changes proposed and after taking into
account the comments, if any, by the Governor, may
approve the list finally with such modification, if any, as may
in its opinion be just and proper.
G
(7) The list, as finally approved by the Commission, shall
be forwarded to the Governor along with all the papers
received under sub-Rr. (5) and (6)."
38. It needs to be noted that under Rule 8(2), the Governor
H
620 SUPREME COURT REPORTS [2012) 12 S.C.R.
A is required to send the character rolls/testimonials of the
character and service records/other relevant records of the
persons recommended to the Committee which would, after
examination of the records forwarded to it and interviewing such
of the persons reGommended as it considers necessary, draw
up a list of persons in order of the preference who are
8
considered suitable for appointment to the service.
"Committee" has been defined in Rule 2(c) and it reads as
follows:-
"(c) "Committee" means a committee constituted in
C accordance with sub-R. (1) of R. 7."
The aforesaid definition makes sub-rule (1) of Rule 7 important.
The said sub-rule reads as follows: -
"7. Recruitment by promotion. (1) There shall be a
D Selection Committee consisting of the following, namely:
(a) Chairman, Assam Public Service Commission, or,
where the Chairman is unable to attend, a Member,
Assam Public Service Commission nominated by
him;
E
(b) Chief Secretary to the Government;
(c) Inspector-General of Police;
(d) A Senior Deputy Inspector General of Police to be
F nominated by Chief Secretary;
(e) Secretary to the Government of Assam in the Home
Department or any other officer of the Home
Department nominated in this behalf by the Chief
Secretary. The Chairman, Assam Public
G Commission or the Member, Assam Public Service
Commission, as the case may be, shall preside at
the meeting of the Se.lection Committee at which
he is present.•
H In the obtaining factual matrix, the Selection Committee
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 621
[DIPAK MISRA, J.]
had not recommended the case of the special batch recruits A
to the Commission. As the affidavit filed by the Secretary to
the Commission before the tribunal clearly stated that the
proeedure was not followed and the same has been accepted
by the tribunal and concurred with by the High Court, there is
no reason to differ with the same. Therefore, we give the seal B
of imprimatur to the said conclusion. At the risk of repetition,
we state that the selection has been made in excess of the
quota and in the absence of a recommendation of the
Selection Committee as prescribed under the rules. Plainly
speaking, a maladroit effort was made to appoint the special c
batch recruits first despite the recommendation of the direct
recruits pending before the State Government. It is also
disturbing that though the Cabinet had not approved the
propos~I for special drive to appoint from other source yet the
Directqr General of Police impressed upon the Commission
0
to recommend 20 names. It is also equally perplexing that the
concept of the special drive was meant to have young officers
but in the ultimate eventuate, officers were nearing fifty got the
appointment. It is obvious that it was totally arbitrary and exhibits
indecent enthusiasm to confeF benefits on the special batch by
making the rules comatosed; ~-
E
39. At this stage, it is requisite to clarify one aspect. The
learned single Judge has treated the selection of the special
batch recruits totally de hors the rules and the Division Bench
has opined that it is not de hors the .rules on the foundation that F
they were not casual appointees and their recommendation had
been made by the Commission and further they had not played
any overt act in getting their selection done.
40. In University of Kashmir and Others v. Dr. Mohd.
Yasin and Others 14, this Court expressed the view that an G
equitable ground does not clothe an appointment with a legal
status. Similar view was also expressed in Swapan Kumar Pal
and Others v. Samitabhar Chakraborty and Others 15•
14. (1974) 3 sec 546.
1s. (2001) s sec sa1. H
622 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 41. In State of Haryana v. Haryana Veterninary and AHTS
Association and Another16, a three-Judge Bench, after x-ray of
the relevant rules, came to hold that when appointments are
made in violation of the recruitment rules, the said
appointments cannot be treated to be regular.
B
42. The aforesaid authorities clearly lay down the principle
that when there is violation of the recruitment rules, the
recruitment is unsustainable. Whether any active part is played
. by a selectee or not has nothing to do with the appointment
made in contravention of the rules. In the case at hand, the
C special batch recruits have encroached into the quota of the
direct recruits. The whole selection process is in violation of the
rules and, therefore, we are inclined to concur with the opinion
expressed by the learned single Judge that the selection was
made de hors the rules. The Division Bench was not justified
· D in stating that the selection could not be said to be de hors the
rules. However, we accept the conclusion of the tribunal as well
as the High Court that as there had been long delay in
challenging the selection of the special batch recruits and some
of them have already retired, it would not be apposite to annul
E their appointments. ·
43. Presently, we shall refer to Rule 18 which deals with
seniority. Mr. Prashant Bhushan, during the course of hearing,
has laid immense emphasis on the said Rule to buttress the
F stance that if the service rendered in the previous posts by the
special batch recruits are taken into consideration on the anvil
of Rule 18, they should be treated as senior to the direct
recruits. Regard being had to the said submission, it becomes
necessitous to refer to the said Rule in entirety. It reads as
G follows: -
"18. Seniority. (1) The seniority of a member of the service
shall be determined on the basis of his date of
appointment to the service :
H 1s. c20ooi a sec 4.
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 623
[DIPAK MISRA, J.]
Provided that inter se seniority of the persons A
recruited under Rr. 5(1 )(a), 5(1 )(b) and 5(2) on the same
date shall be according to the following order :
(i) Persons recruited under R. 5(2);
(ii) Persons recruited under R. 5(1)(b); B
(iii) Persons recruited under R. 5(1 )(a);
Provided further that in the case of a person recruited
under R.5(1 )(c) the Governor may, in consideration of his C
previous service and/or experience, fix a deemed date of
appointment for the purpose of seniority after taking into
consideration half the period of continuous service in
completed years subject to a maximum of 4 years
rendered in previous service.
D
(2) Inter se seniority of persons appointed under any of the
three clauses of R. 5(1), shall be in the order in which their
names appear in the list from which the appointment is
made.
E
(3) The date of appointment for the purposes of this rule
shall be, if a date is specified in the notification of
appointment, such date, or if no such date is specified, the
date on which such notification is issued.
(4) Notwithstanding anything contained in sub-Rr. (1) to (3) F
the seniority of a person who does not join the service
within three months of the date of appointment as defined
in sub-R.(3), shall be determined on the basis of the actual
date of his joining the service.
G
(5) If the confirmation of a member of the service is delayed
on account of his failure to qualify for such confirmation,
he shall lose his post in the order of seniority vis-a-vis such
of his juniors as may be confirmed earlier than he. His
original position shall, however, be restored on his H
624 SUPREME COURT REPORTS [2012] 1'2 S.C.R.
A confirmation subsequently but any benefits of promotion,
etc., shall not accrue to him with retrospective effect on
such confirmation.
(6) Inter se seniority of persons promoted to the senior
B
grade of the service shall be in the order in which their
names appear in the list from which the promotion is
made."
44. The two facets which emerge from the scanning of the
aforesaid Rule are that the seniority of a member of the service
C is to be determined on the basis of the date of appointment to
the service and the seniority has to follow a particular order as
has been stipulated therein. The other significant aspect is that
power has been conferred on the Governor to consider the
previous service of an incumbent and fix a deemed date of
D appointment for the purpose of seniority by adopting a specific
method. As far as the first part is concerned, ~he tribunal as well
as the High Court has not accepted the stipulation that in the
present case the seniority should be determined on the basis
of the date of appointment as the same has been made in
E flagrant violation of the rules and we have already concurred
with the same. As far as the computation of the previous service
is concerned, the learned single Judge as well as the Division
Bench, after adequate ratiocination, has expressed the view
that the appointments had been made in contravention of the
F rules, the question of conferment of the benefit under the second
proviso to Rule 18(1) did not arise. In our considered view, the
said conclusion is absolutely defensible for the simon pure
reason when the infrastructure is founded on total illegal edifice,
the endeavour to put forth a claim for counting the previous
G service to build a pyramid is bound to founder.
45. Another specious contention has been urged that
power is vested with the Governor to dispense with or relax any
rule and in the case at hand, it should be treated that the
authority by its conduct has relaxed the rules. In this context, it
H
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 625
[DIPAK MISRA, J.]
is appropriate to refer to Rule 23 which reads as follows: - A
"Power of the Governor to dispense with or relax any
rule. Where the Governor is satisfied that the operation
of any of these rules may cause undue hardship in any
particular case, he may order to dispense with or relax the B
requirements of that rule to such an extent and subject to
such conditions as he may consider necessary for dealing
with the case in a just and equitable manner:
Provided that the case of any person shall not be dealt with
in any manner less favourable to him than that provided C
by any of these rules."
46. As has been observed by the learned single Judge
which has ·been accepted by the Division Bench, there was no
decision to relax the rules in favour of the special batch recruits. 0
That apart, whenever there has to be relaxation about the
operation of any of the rules, regard has to be given to the test
of causation of undue hardship in any particular case. That
apart, the authority is required to record satisfaction while
dispensing or relaxing the requirements of any rule to such an E
extent and subject to such conditions as he may consider
necessary for dealing with the case in a just and equitable
manner. The language of the Rule really casts a number of
conditions. It provides guidance. It cannot be exercised in an
arbitrary manner so as to dispense with the procedure of
selection in entirety in respect of a particular class, for it has to F
be strictly construed and there has to be apposite foundation
for exercise of such power. It is to be borne in mind that if a
particular rule empowers the authority to throw all the rules
overboard in all possibility, it may not withstand close scrutiny
of Article 14 of the Constitution. Be that it may, no decision was G
taken to relax the rules and, the concept of deemed relaxation
is not attracted and, therefore, the relief claimed by the special
batch recruits has no legs to stand upon.
47. Frcim the aforesaid analysis, there can be no scintilla H .
626 SUPREME COURT REPORTS [2012] 12 S.C.R.
A of doubt that the selection of the special batch recruits was ·
totally de hors the Rules; that there was a maladroit effort to go
for a special drive when there was no need for the same by the
State which is supposed to be a model employer; that neither
the concept of relaxation nor the conception of benefit of Rule
B 18 would be attracted for grant on conferring any privilege to
the special batch recruits; that their seniority has to be pushed
down and, hence, the directions given by the tribunal and the
High Court in that regard are absolutely flawless; and that regard
being had to the delayed challenge and long rendering of
c service in the posts and further promotions having been
effected, it would be inapposite to quash their appointments.
48. Before parting with the case, we are compelled to
reiterate the oft-stated principle that the State is a model
employer and it is required to act fairly giving due regard and ·
D respect to the rules framed by it. But in the present case, the
State has atrophied the rules. Hence, the need for hammering
the concept.
49. Almost a quarter century back, this Court in Bairam
E Gupta vs Union of India & Anr. [1987 (Supp) SCC 228] had
observed thus:
"As a model employer the Government must conduct itself
with high probity and candour with its employees."
F 50. In State of Haryana v. Piara Singh and
Ors.[(1992)4SCC118], the Court had clearly stated:
"The main concern of the court in such matters is to ensure
the rule of law and to see that the Executive acts fairly and
G gives a fair deal to its employees consistent with the
requirements of Articles 14 and 16".
51. In Secretary, State Of Karnataka And vs. Umadevi
And Others [(2006)4SCC1], the Constitution Bench, while
discussing the role of state in recruitment procedure, stated that
1:1 if rules have been made under Article 309 of the Constitution,
BHUPENDRA NATH HAZARIKA v. STATE OF ASSAM 627
[DIPAK MISRA, J.]
• then the Government can make appointments only in A
accordance with the rules, for the State is meant to be a model
employer.
52. In Mehar Chand Polytechnic & Anr. vs. Anu Lamba
& Ors. ((2006) 7 SCC 161] the Court observed that public B
employment is a facet of right to equality envisaged under
Article 16 of the Constitution of India and that the recruitment
rules are framed with a view to give equal opportunity to all the
citizens of India entitled for being considered for recruitment in
the vacant posts.
c
53. We have stated the role of the State as a model
employer with the fond hope that in future a deliberate
disregard is not taken recourse to and deviancy of such
magnitude is not adopted to frustrate the claims of the
employees. It should always be borne in mind that legitimate D
aspirations of the employees are not guillotined and a situation
is not created where hopes end in despair. Hope for everyone
is gloriously precious and a model employer should not convert
it to be deceitful and treacherous by playing a game of chess
with their seniority. A sense of calm sensibility and concerned E
_sincerity should be reflected in every step. An atmosphere of
trust has to prevail and when the employees are absolutely sure
that their trust shall not be betrayed and they shall be treated
with dignified fairness then only the concept of good governance
can be concretized. We say no more. F
54. Consequently, all the appeals are dismissed leaving
the parties to bear their respective costs.
B.B.B. Appeals dismissd.
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