Holding

Chances of promotion are not a condition of service, and the inter‑se seniority determined under the TA Rules, 2003 and STA Rules, 2003 based on pay‑scale differentials is neither arbitrary nor discriminatory, rendering the Tribunal and High Court orders invalid.

Summary

The Customs and Central Excise Department created a separate Data Entry Operator cadre to implement computerisation, later merging it back with the original ministerial cadre under the TA Rules, 2003 and STA Rules, 2003. This merger altered the inter‑se seniority of officers, disadvantaging those who remained in the ministerial cadre and prompting challenges alleging discrimination under Articles 14 and 16. The principal issue was whether chances of promotion constitute a condition of service and whether the seniority fixation based solely on pay‑scale differentials was arbitrary or violative of constitutional guarantees. The Supreme Court held that mere alteration of promotion chances is not a condition of service and, absent arbitrariness or mala‑fide intent, the seniority determination under the Rules is lawful. Consequently, the Court set aside the Tribunal and High Court orders and allowed the appeals of the officers who had moved to the Data Entry Operator cadre, while also allowing the Union of India’s appeals.

Issues considered

Do chances of promotion constitute a condition of service for purposes of judicial review?
Is the inter‑se seniority fixed under TA Rules, 2003 and STA Rules, 2003 arbitrary, discriminatory, or violative of Articles 14 and 16 of the Constitution?
Can the merger of the ministerial cadre and the Data Entry Operator cadre be treated as a re‑amalgamation akin to the Om Prakash Sharma case?
Is it permissible to determine seniority solely on the basis of pay‑scale differentials without considering other factors?

Legislation cited

Subjects

service lawpromotionseniorityinter se senioritycadre amalgamationarticles 14 and 16conditions of servicecentral excisecustoms departmentTA Rules 2003STA Rules 2003judicial review

Judgment

[2015] 15 S.C.R. 194

A DHOLE GOVIND SAHEBRAO & OTHERS
v.
UNtON OF INDIA &OTHERS
(Civil Appeal Nos. 2485-2490 of 2010)
B
MARCH 26, 2015
[JAGDISH SINGH KHEHAR ANDS. A. BOBDE, JJ.J
Service Law- Inter se seniority- Promotion - Customs
and Central Excise Department - A separate cadre was
C constituted, out of the existing ministerial cadre, for
discharging electronic data processing responsibilities -
After the computerization project was fully implemented, the
separate cadre so created, was sought to be re-amalgamated
with the existing ministerial cadre - The bifurcation and re-
D amalgamation, resulted in a co-incidental career
advancement, for those who had accepted to break away from
the original ministerial cadre - Controversy on account of
reconstitution of cadres - Seniority dispute amongst
employees - Held: Chances of promotion do not constitute
E a condition of service - In that view of the matter, the High
Court erred in recording its eventual determination on the
basis of the fact that the promulgation of the TA Rules, 2003
and the STA Rules, 2003 was discriminatory and arbitrary
with regard to the fixation of the inter se seniority, since the
F same seriously prejudiced the chances of promotion of the
erstwhile members of the ministerial cadre, namely, those
members of the original ministerial cadre, who had not opted
for appointment/absorption into the cadre of Data Entry
Operators, with reference to and in comparison with, those
G members of the original ministerial cadre who had opted for
appointment/absorption into the cadre of Data Entry
Operators- On facts, consequent upon the merger of posts,
upon promulgation of the TA Rules, 2003, and the STA Rules,
2003, the nature and duties of the two cadres were combined
H - There was no serious difference between the two merged
194
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 195
INDIA & OTHERS

cadres, either on the issue of nature of duties, or on the A
subject of powers exercised by the officers holding the post,
or the extent of territorial or other charge held, or
responsibilities discharged by them, or for that matter, the
qualifications prescribed for the posts - On account of the
aforesaid, the merger of the cadres, and the determination B
of the inter se seniority on merger, were justifiably determined,
on the basis of the different pay-scales of the cadres merged,
under the TA Rules, 2003 and the STA Rules, 2003 - By the
mandate of the above Rules, all posts in equivalent pay-
scales were placed at the same level - Posts in the higher c
scale of pay, were given superiority on the subject of inter se
seniority, with reference to posts in the lower scale of pay-
The above determination, at the hands of the rule framing
authority, cannot be termed either arbitrary or discriminatory
- The provisions of Rule 4 of the TA Rules, 2003 and Rule 5 D
of the STA Rules, 2003, cannot be faulted on the touchstone
ofArts. 14 and 16 of the Constitution -Appeals filed by those
who moved to the cadre of Data Entry Operators from the
ministerial cadre, and were thereupon amalgamated in the
cadre of Tax Assistants/Senior Tax Assistants, allowed - E
Authorities to give effect to Rules 4 and 5 of the TA Rules,
2003 and the STA Rules, 2003, respectively, without any
further delay-: Central Excise and Customs Department Tax
Assistant (Group 'C' Post) Recruitment Rules, 2003 (TA
Rules, 2003) - Central Excise and Customs Department F
Senior Tax Assistant (Group 'C' Post) Recruitment Rules, 2003
(STA Rules, 2003)-Constitutionoflndia, 1950-Arts. 14and 16.
Service Law - Promotion - Chances of promotion -
Held: Chances of promotion do not constitute conditions of
service, and as such, mere alteration of chances of G
promotion, would not per se calf for judicial interference -
However, the above general proposition would not be
applicable, in case the chances of promotion are altered
arbitrarily, or on the basis of considerations which are shown
to be perverse ormala fide. H
196 SUPREME COURT REPORTS [2015] 15 S.C.R.

A Om Prakash Sharma v. Union of India (1985)
Suppl. SCC 218- held inapplicable.
State of Maharashtra & Anr. v. Chandrakant Anant
Kulkarni & Ors. (1981) 4SCC130: [1982) 1 SCR
665 ; Palaru Ramkrishnaiah & Ors. v. Union of
B . India & Anr. (1989) 2 SCC 541 : [1989) 2 SCR
92; Syed Khalid Rizvi & Ors. v. Union of India &
Ors. (1993) 3 Suppl. SCC 575: [1992) 3 Suppl.
SCR 180 ; S.S. Bola & Ors. v. B.D. Sardana &
Ors. (1997) 8 SCC 522: [1997] 2 Suppl. SCR
c 507 ; Union of India & Ors. v. Colonel GS. Grewal
(2014) 7 SCC 303; SP. Shivprasad Pipalv. Union
of India & Ors. (1998) 4 SCC 598 - referred to.
Case Law Reference
D (1985) Suppl. sec 218 held inapplicable Para 14
[1982) 1 SCR 665 referred to Para 22
[1989) 2 SCR 92 referred to Para 22
[1992) 3 Suppl. SCR 180 referred to Para 22
E
[1997) 2 Suppl. SCR 507 referred to Para 22
(2014) 1 sec 303 referred to Para 22
(1998) 4 SCC 598 referred to Para 34
F CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos.2485-2490 of 2010.
From the Judgment and Order dated 13.04.2007 of the
High Court of Judicature at Madras in Writ Petition No. 8388
of 2004.
G WITH
C.A. Nos. 2491-2503, 2577 & 10386 of 2013.
K. Radhakrishnan, V. A. Mohta, Sr. Advs., Ms. Sushma
Manchanda, A. K. Srivastava (for B. Krishna Prasad), K.
Maruthi Rao, K. Radha, Mrs. RanjaniAiyagari,Advs. for the
H Appellants.
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 197
INDIA &OTHERS

Fakhruddin, Sr.Adv., Raj KishorChoudhary, Ms. Neeru A
Sharma, Ms. Divya Mishra, Ms. Sadaf Rehman,
Ms. V. Mohana, B. Raghunath, Vijay Kumar, Vikas Mehta,
C. K. Chandrasekhar, S. R. Setia, Jayanth Muth Raj,
C. K. Sasi, P. Narasimhan, Devadatta Kamat, Rajesh lnamdar,
Rauf Rahim, Raghavendra S. Srivatsa, P. V. S. Giridhar, Advs. B
for the Respondents.

The Judgment of the Court was delivered by

JAGDISH SINGH KHEHAR, J. 1.The present
controversy is yet another seniority dispute amongst C
employees of the Customs and Central Excise Department.
The controversy herein has emerged on account of a
reconstitution of cadres. In the first instance, a separate cadre
was constituted, out of the existing ministerial cadre, for
discharging electronic data processing responsibilities. This D
was necessitated by the decision of the department to introduce
computerization, in its functioning. The instant computerization
project, which commenced in 1991-92, seems to have been
fully implemented in or around 2002-03. Consequent upon
achievement of the above objective, the separate cadre so E
created, was sought to be re-amalgamated with the existing
ministerial cadre. The above noticed bifurcation and re-
amalgamation, resulted in a co-incidental career advancement,
for those who had accepted to break away from the original
ministerial cadre. Some of those who were originally placed F
at inferior positions in the seniority list of the original ministerial
cadre, acquired superiority over their counterparts (in the
original ministerial cadre), consequent upon their promotion
within the cadre of data entry operators, which resulted in their
acquiring a higher position in seniority, over and above those G
who were senior to them in the original ministerial cadre. Before
embarking upon the niceties of the seniority dispute, it is
imperative to delve upon the reasons of the afore-stated
bifurcation, and re-amalgamation of cadres. The instant aspect
H
198 SUPREME COURT REPORTS [2015] 15 S.C.R.

A of the matter is accordingly being dealt with, in the following
paragraphs.

2. The ministerial cadre as it originally existed, comprised
of posts of Deputy Office Superintendents (Levels 1 and 2),
8 Upper Division Clerks, Lower Division Clerks, Stenographers
(Senior Grade and Ordinary Grade), Draftsmen etc.
Conditions of service of members of the original ministerial
cadre, were regulated by the Central Excise and Land Customs
Department Group 'C' Posts Recruitment Rules, 1979
C (hereinafter referred to as, the 1979 Rules). Members of the
original ministerial cadre regulated by the provisions of the
1979 Rules were eligible for rromotion to the post of Inspector
(Ordinary Scale) - an executive cadre post. And thereupon,
even further promotion, in the executive cadre.
D 3. Consequent upon the recommendations made by the
Fourth Central Pay Commission in paragraph 11.45 of its
report, the Government of India took upon itself the
responsibility to examine the rationalization of pay scales for
posts responsible for discharging work relating to data entry.
E The task sought to be undertaken was to prescribe uniform
pay scales and designations for electronic data processing
posts, in consultation with the Department of Personnel.
Consequent upon the suggestions made by a committee set
up by the Department of Electronics in November, 1986, the
F Government of India decided to introduce the following uniform
pattern for Electronic Data Processing Posts:-
- . - - - -- -· -- - ---- -----
S.No~ Desi9nation of ,~--Pay Scaie -
post
Data Entry Operators
G 1. Data Entry -Rs-:1 150-1 500 This will be entry
Operator grade for higher
Grade 'A' I secondar~ with
knowledge of
data entrv work

H
DHOLE GOVIND SAHEBRAO &OTHERS v. UNION OF 199
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

---- -· --- - -··-- - ---- -- - · · - - -- - ·--
2. Data
~ "

Entry Rs.1 350-2 200
-

This will be entry A
Operator grade for
Grade 'B' graduation with
knowledge of
data entry work or
promotional
grade for Data B
Entry Operator
Grade 'A'
3. Data Entry Rs.1400-2 300 Promotional
Operator Grade
Grade ·c·
4. Data Entry Rs.1 600-2 660 Promotional
Operator Grade c
Grade ·o·
5. Data Entry Rs.2 000-3 500 Promotional
Operator Grade
Grade 'E'
Data Processing/Programming Staff

1_ D
Data Processing Rs.1600-2660 Entry grade for
Assistant Grade graduates with
'A' Diplo ma/Certificat
e in Computer
Annlication
2. Data Processing Rs.2 000-3 200 Pro motiona I
Assistant Grade Grade E
'B'
3. Programmer Rs.2 375-3 500 Direct entry for
holders of degree
in Engineering or
post-graduation in
Science/Maths
etc., or post- F
graduation in
Computer
Applica lion
Or
By promotion
from Data
G
Processing
Assistant Grade
'B'
4. Senior Rs.3000-4 500 Promotional
Proarammer Grade

H
200 SUPREME COURT REPORTS [2015] 15 S.C.R.

A In continuation of the aforesaid office memorandum
dated 11.9.1989, the Government of India issued a further
memorandum dated 8.1.1990, suggesting job descriptions for
various levels of data entry operators and programming staff,
which could be adopted by different ministries/departments
B of the Government of India, with suitable modifications to meet
their individual requirements. The suggestions incorporated
in the annexures appended to the office memorandum dated
8.1.1990, revealed five categories of data entry operators,
differentiated and distinguished as under:-
c "1. Data Entry Operator-A: 1150-25-1500
All types of data preparation and validation including
alpha-numeric data entry, graphic data entry, voice-
entry, optical entry etc., and associated verification,
and pre-programmed validation, text processing etc.,
D
on any type of machines/equipment/instrument
endowed with facilities for data entry and/or
preparation for data entry and/or pre-programmed
validation of entered data including key punching
machine, key to magnetic media machine, key to
E
optical media machine, any type of computer/EDP
equipment, any computer based equipmenUcomputer
based instrumenUcomputer based online or real time
systems/computer network based systems.
F 2. Data Entry Operator-B: 1350-30-1440-40-2200
In addition to those jobs mentioned for Data Entry
Operator-A, Pooling, Counting, Collating, Coding,
Console Operation, assisting in the preparation of
Statistics, billing, inpuUoutput handling etc., on any type
G of machine/equipment/instrument endowed with
facilities for data entry or preparation for data entry
and/or validation of entered data as specified under
the description for Data Entry Operator-A.

H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 201
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

3. Data Entry Operator-C: A
In addition to those jobs and machine equipment
instrument mentioned for Data Entry Operator-8,
training of operators, scheduling of jobs and more
skill-based validation of alpha-numeric or graphic
data as determined by the needs of the organization. 8

4. Data Entry Operator-D:
In addition to those jobs mentioned for Data Entry
Operator-C, programming relating to data
preparation and/or validation, and for a few staff who C
are considered to have the required aptitude and
depending upon the need, supervision of the work of
Data Entry Operator-A, Band C.
5. Data Entry Operator-E:
D
Supervision of the work of data preparation,
scheduling and distribution of jobs among other Data
Entry Operators, planning, scheduling, coordination
and implementation of interrelated and integrated
data preparation jobs, programming relating to data E
preparation and/or validation traction and if
necessary to do supporting job of data entry,
verification, validation etc. depending on exigencies
of work."
4. In order to implement the recommendations made by F
the Fourth Central Pay Commission, the Central Board of
Excise & Customs, Department of Revenue, Ministry of
Finance, framed the Electronic Data Processing Posts (Group
'C' Technical Posts) Recruitment Rules, 1992 (hereinafter
referred to as, the 1992 Rules). The aforesaid rules were G
framed by the President of India in exercise of the powers
conferred by the proviso to Article 309 of the Constitution of
India. Rule 5 of the 1992 Rules provided, that all persons ·
holding the ministerial posts of Key Punch Operators, Terminal
H
202 SUPREME COURT REPORTS [2015] 158.C.R.

A Operators and Lower Division Clerks, who were performing
the duties of Terminal Operators prior to the commencement
of the 1992 Rules, would be deemed to be appointed as Data
Entry Operators Grade 'I\. Rule 5 of the 1992 Rules further
postulated, that all Data Entry Operators Grade 'I\ appointed
B at the time of the commencement of the 1992 Rules, would
rank en-block senior to those appointed after the
commencement of the Rules.
5. Rule 7 of the 1992 Rules authorized, the Central
Government to relax any other provision of the rules with
C respect to any class or category of persons. On 2.2.1993, in
exercise of the powers conferred on the Central Government,
the Central Excise Department permitted its erstwhile
employees, to apply for posts of Data Entry Operator Grade
. '!\,subject to the condition, that they had completed 3 years'
D regular service and satisfied the conditions of eligibility
stipulated in the 1992 Rules. On 9.9.1993, the Customs
Department, issued a circular informing the employees who
had exercised their option for appointment to the post of Data
Entry Operator Grade 'I\, that their option was final and could
E not be revoked. A number of employees holding ministerial
cadre posts in the Customs and Central Excise Department,
accordingly came to be appointed as Data Entry Operators
Grade 'A'.
F 6. Under the mandate of the 1992 Rules, the post of Data
Entry Operator Grade 'A' was assigned the pay scale of
Rs.1150-25-1500. It was the lowest post under the 1992 Rules.
The Schedule appended to the 1992 Rules provided, that to
be eligible for appointment to the post of Data Entry Operator
Grade 'I\, an individual should have qualified the 121h standard
G or equivalent examination. Additionally, he/she should possess
a speed of not less than 8000 key depressions per hour, for
data entry work. The onward promotion from the post of Data
Entry Operator Grade 'A' was to the post of Data Entry Operator
H Grade 'B'. The said promotional post was in the pay scale of
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 203
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

Rs.1350-30-1440-40-1800-EB-50-2200. To be eligible for A
promotion to the post of Data Entry Operator Grade 'B', the
schedule stipulated 6 years' regular service as Data Entry
Operator Grade 'A'. The post of Data Entry Operator Grade
'B' was liable to be filled exclusively by promotion, failing which,
on transfer by deputation. Onward promotion from the post of B
Data Entry Operator Grade 'B', was to the post of Data Entry
Operator Grade 'C'. The said promotional post, was in the
pay scale of Rs.1400-40-1800-EB-50-2300. Data Entry
Operators Grade 'B' with 3 years' regular service in the grade,
were considered eligible for promotion to the post of Data Entry c
Operator Grade 'C'. The schedule appended to the 1992 Rules
provided, that the post of Data Entry Operator Grade 'C' would
be filled up exclusively by promotion, failing which, on transfer
by deputation. The highest post under the 1992 Rules, was
the post of Data Entry Operator Grade 'D'. The said post was D
to be filled up by promotion from amongst Data Entry Operators
Grade 'C', with 4 years' regular service in the grade. The post
of Data Entry Operator Grade 'D', was earmarked the pay
scale of Rs.1600-50-2300-EB-60-2660. Just as in other cases
referred to hereinabove, promotion to the post of Data Entry E
Operator Grade 'D' was to be made exclusively by promotion,
failing which, on transfer by deputatiol").
7. A perusal of the cadre of posts evolved under the 1992
Rules would reveal, that the Customs and Central Excise
Department created a four-level cadre of Data Entry Operators, F
i.e. Grades 'A', 'B', 'C' and 'D'. This was in contradistinction
to the five-level cadre of Data Entry Operators suggested in
the deliberations carried out by the Government of India (as
already noticed above). A perusal of the 1992 Rules further
reveals, that the cadre of Data Entry Operators, was separate G
from the original ministerial cadre. Persons from the original
ministerial cadre were not eligible for promotion to the different
levels of posts created under the 1992 Rules. Likewise,
members of different levels in the cadre of Data Entry
H
204 SUPREME COURT REPORTS [2015] 15 S.C.R.

A Operators, were no longer eligible for onward promotion to
any post of ministerial cadre. Most significantly, an incumbent
holding a ·cadre post under the 1992 Rules was no longer
eligible for promotion to the post of Inspector (Ordinary Scale)
in the executive cadre. And therefore, not eligible for any
B onward promotion in the executive cadre. Accordingly it is
inevitable to conclude, that after the promulgation of the 1992
Rules, the Customs and Central Excise Department comprised
of a separate and distinct ministerial cadre, as also, a separate
and distinct cadre of Data Entry Operators.
c 8. The factual position depicted in the pleadings filed
before this Court reveals, that throughout India only 211, 52
and 17 employees got promoted to the posts of Data Entry
Operator Grade 'B', Grade 'C' and Grade 'D' respectively,
under the 1992 Rules. The remaining individuals inducted into
D the cadre of Data Entry Operators from the original ministerial
cadre, have continued to occupy the post of Data Entry
Operator Grade 'A', even after having rendered services for
more than 10-15 years i.e., without obtaining a single
promotion. As against the aforesaid career progression under
E the 1992 Rules, the administration found that the ministerial
cadre employees holding the posts of Lower Division Clerk,
Upper Division Clerk, and erstwhile Tax Assistant etc. were
.promoted (during the same period of service) to the post of
Inspector (Ordinary Scale), and even further up to the post of
F Commissioner on the executive side, and up to the post of
Chief Accounts Officer on the ministerial side, on account of
better promotion avenues available to the ministerial cadre.
In order to resolve the distinction in the two cadres of
employees, the Central Board of Excise & Customs invited
G suggestions from all the Commisionerates for the re-merger
of cadres. The matter was examined also in the light of the
fact that the purpose for which the cadre of Data Entry
Operators was created, had been achieved. The deliberations
lead to restructure/re-amalgamation, by abolishing the cadre
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 205
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

of Data Entry Operators. To give effect to the executive A
determination the President of India, in exercise of the powers
conferred on him by the proviso to Article 309 of the Constitution
of India, framed two sets of rules for the Customs and Excise
Department, namely, the Central Excise and Customs
Department Tax Assistant (Group 'C' Post) Recruitment Rules, B
2003 (hereinafter referred to as, the TA Rules, 2003) and the
Central Excise and Customs Department Senior Tax Assistant
(Group 'C' Post) Recruitment Rules, 2003 (hereinafter referred
to as, the STA Rules, 2003). In order to understand ·the re-
merger/re-amalgamation of the cadres in the Customs and C
Excise Department, it is imperative for us to delve upon the
effect of the TA Rules, 2003, as also, the STA Rules, 2003.
We shall examine the aforementioned two sets of rules, in the
following paragraphs.
9. The TA Rules, 2003 provided for the initial constitution D
of the cadre of Tax Assistants, through Rule 4 thereof. Rule 4
of the TA Rules, 2003 is being extracted hereunder:-
"4. Initial Constitution.- (1) The person appointed
on regular basis and holding the post of Upper
E
Division Clerk and Data Entry Operator Grade A
on the commencement of these rules shall deemed
to have been appointed as Tax Assistant under
these rules and the service rendered by such
persons in the respective posts before
F
commencement of these rules shall be taken into
account as regular service rendered on the post of
Tax Assistant forthe purpose of promotion etc.
(2) The person holding the post of Data Entry
Operator Grade-A appointed under these rules as G
Tax Assistant shall, within two years from the date
of such appointment as Tax Assistant, pass the
Departmental Examination as conducted by the
competent authority, failing which he shall not be
entitled to get any further increment. H
206 SUPREME COURT REPORTS [2015] 15 S.C.R.

A (3) Any person, who holds a post of Lower Division
Clerk on regular basis and falls within the seniority
list as determined by the appointing authority at the
commencement of these rules shall, on passing the
Departmental Computer Proficiency examination
B conducted by the appointing authority, be deemed
to have been promoted with effect from the date of
passing such examination on the post of Tax
Assistant.
(4) The Upper Division Clerks and Data Entry
c Operators Grade-A shall be placed en-block senior
and, their inter se placement shall be fixed in
accordance with the date of regular appointment
to the respective grade subject to the condition that
their inter se placement in respective grade shall
D not be disturbed.
(5) Lower Division Clerks shall be placed below
Upper Division Clerks and Data Entry Operator
Grade-A."
E A perusal of Rule 4 of the TA Rules, 2003 reveals, that
persons holding the posts of Upper Division Clerk and Data
Entry Operator Grade 'A' would be re-designated as Tax
Assistants. The service rendered by them as Upper Division
Clerk and Data Entry Operator Grade'!'\ respectively, would
F be taken into consideration as regular service rendered on
the post of Tax Assistant (for purposes of promotion etc.). In
addition to the above, Lower Division Clerks falling within the
seniority list, as determined by the appointing authority at the
commencement of the TA Rules, 2003, on passing the
G departmental computer proficiency examination, would be
deemed to be promoted as Tax Assistants (from the date of
passing such examination). Rule 4 of the TA Rules, 2003
expressly postulates, that Upper Division Clerks and Data
Entry Operators Grade'!'\, would be placed en-block senior
H to others appointed as Tax Assistants, and further, that their
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 207
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

inter-se seniority would be determined from the date of their A
regular appointment to the respective grade. For their inter-
se placement, Rule 4 of the TA Rules, 2003 further postulated,
that Lower Division Clerks would be placed below the Upper
Division Clerks and Data Entry Operators Grade 'P\. A perusal
of Rule 4 of the TA Rules, 2003 reveals an amalgamation of B
three posts, namely, Upper Division Clerk, Data Entry Operator
Grade 'A' and Lower Division Clerk. All these posts were
· amalgamated into a freshly created cadre of Tax Assistants
under the TA Rules, 2003.
10. While deliberating on the TA Rules, 2003, it is also C
imperative to notice, that Rule 5 of the TA Rules, 2003 provided
for the methods of recruitment, G1ge limits and other
qualifications, for appointment to the post of Tax Assistant. The
details of the aforesaid particulars are found in the schedule
appended to the TA Rules, 2003. A perusal of the above D
schedule reveals, that 90% of the appointments made to the
post of Tax Assistant were to be by direct recruitment, and
10% by way of promotion. For promotion, the following
conditions of eligibility were stipulated in column 12 of the
schedule appended to the TA Rules, 2003:- E
"From amongst the Lower Division Clerks. and
Head Havaldars who have rendered seven years
of service in the Grade on regular basis and
possess the following qualifications, namely:-
F
(a) Matriculation or equivalent q1,Jalification from
a recognized institution, and
(b) Data Entry Speed of 5000 key depression
per hour and passed the Departmental
examination with knowledge of typing in Hindi G
or English at a speed of 25 wpm and 30 wpm
respectively."
It is apparent from the perusal of Rule 5, coupled with the
schedule appended to TA Rules, 2003, that the initial merger H
208 SUPREME COURT REPORTS [2015] 15S.C.R.

A of the ministerial cadre and the cadre of Data Entry Operators
was made, against the post of Tax Assistants. In sum and
substance, therefore, irrespective of the post (in ministerial or
Data Entry Operators' cadre) occupied, the lowest level of
amalgamation was, against the post of Tax Assistant.
B 11. Insofar as the STA Rules, 2003 are concerned, the
initial constitution therein was postulated in Rule 5 thereof. Rule
5 aforementioned is being extracted hereunder:-
"5. Initial Constitution.-(i)All the persons appointed
c on the regular basis at the time of commencement
of these rules to the Grade of Assistant, Tax
Assistant, Upper Division Clerk (Special Pay), Data
Entry Operator Grade 'B' and 'C' shall be deemed
to have been appointed as Senior Tax Assistants
under these rules. The service rendered by them
D
before commencement of these rules shall be taken
into account for deciding the eligibility for promotion
to the next higher grade.
(ii) Assistants (Rs.5000-8000) and Data Entry
E Operator Grade 'C' (Rs.5000-8000) are being
redesignated as SeniorTaxAssistants in the same
scale of pay. Therefore, the Assistants and Data
Entry Operator Grade 'C' shall be placed enblock
senior to the other categories. However their inter-
F se-placement shall be done according to the date
from which they had actually been appointed to
these grades on regular basis subject to the
condition that their inter-se placement in their
respective category shall not be altered.
G (iii) The Data Entry Operator Grade 'B' (4500-7000)
and TaxAssistants (4500-7000) have been placed
in their 'iigher scale of 5000-8000 and they shall ·
be placed below the Assistant and Data Entry
Operator Grade 'C' and their inter-se placement
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 209
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

shall be fixed in accordance with the date of regular A
appointment to the respective grade subject to the
condition that their inter-se placement in respective
category shall not be disturbed.
(iv) Upper Division Clerk with special pay shall be
placed below Assistant; Data Entry Operator Grade B
'C', Data Entry Operator Grade 'B', Tax Assistants.
(v) The present employees would be required to
pass the required or suitable departmental
examination, as specified by the Competent c
Authority, from time to time, in Computer application
and relevant procedures within two years failing
which they would not be eligible for further
increments."
A perusal of Rule 5 of the STA Rules, 2003 reveals, that D
at the initial constitution of the cadre the posts of Assistant,
T-ax Assistant, Upper Division Clerk (Special Pay) and Data
Entry Operator Grades 'B' i?nd 'C' were merged as Senior
. Tax Assistants. The aforesaid merger contemplated the
merger of posts belonging to the ministerial cadre, and posts E
belonging to the cadre of Data Entry Operator. Rule 5 of the
STA Rules, 2003 also expressly provided for the manner in
which the above merged posts would be ranked in the
integrated cadre of SeniorTaxAssistants. The inter-se ranking
was provided for as under:- F
(i) Assistants and Data Entry Operators Grade 'C' were
placed above all other posts which constituted the cadre
. of Senior Tax Assistants, on the promulgation of the STA
Rules, 2003. This was purportedly sought to be done,
as is evident from Rule 5(ii) of the STA Rules, 2003, G
because the posts of Assistant and Data Entry Operator
Grade 'C' were in the pay scale of Rs.5000-8000, and ·
thereby, were enjoying the hfghest scale amongst the
posts merged, to constitute the cadre of Senior Tax
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210 SUPREME COURT REPORTS [2015] 15 S.C.R.

A Assistants. In order to regulate the inter-se seniority
between the merged posts of Assistants and Data Entry
Operators Grade 'C', Rule 5(ii) of the STA Rules, 2003
further provided, that the inter-se placement of persons
holding such posts, would be based on the date on which
B such persons had been actually appointed in the pay
scale of Rs.5000-8000, on regular basis.
(ii) In the same fashion as Assistants and Data Entry
Operators Grade 'C', Rule 5(iii) of the STA Rules, 2003
provided, that Data Entry Operators Grade 'B' and Tax
c Assistants, who were earlier placed in the pay scale of
Rs.4500-7000, and thereafter placed in the higher scale
of Rs.5000-8000, would be placed en-block below
Assistants and Data Entry Operators Grade 'C'. In other
- words, the posts of Data Entry Operators Grade 'B' and
D Tax Assistants which had an inferior position adjudged
on the basis of pay scales, vis-a-vis Data Entry
Operators Grade 'C' and Assistants, prior to the·
promulgation of the STA Rules, 2003, were placed en-
masse below Data Entry Operators Grade 'C' and
E Assistants, so as to preserve the 5aid inferior position in
the cadre of SeniorTaxAssistants. Insofar as the inter-
se placement between the Data Entry Operators Grade
'B' and Tax Assistants is concerned, Rule 5(iii) of the STA
Rules, 2003 provided, that the date of their regular
F appointment in their respective grades, would determine
their inter-se seniority in the cadre of Senior Tax
Assistants.
(iii) For exactly the same reasons as have been
indicated in (i) and (ii) above, namely, the pay scale in
G
which the respective posts were placed prior to the
creation of the cadre of Senior Tax Assistants under the
STA Rules, 2003, the posts of Upper Division Clerk were
placed at the bottom of the cadre of Senior TaxAssistants,

H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 211
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

at the initial constitution of the said cadre, under the A
mandate of Rule 5(iv) of the STA Rules, 2003.
12. It is imperative to point out here, that the erstwhile
ministerial cadre was primarily engaged in discharging duties
of a procedural nature, whereas those engaged in the cadre
of Data Entry Operators were considered to be primarily B
engaged in discharging duties in the field of computer
applications. It is, therefore, that Rule 5(v) of the STA Rules,
2003 provided, that all employees appointed as Senior Tax
Assistants, at the initial constitution of the aforesaid cadre,
under the STA Rules, 2003, would be required to pass C
departmental examinations, so as to achieve the proficiency
required in discharging duties relating to the application of
relevant procedures, as also, with reference to computer
applications.
D
13. It is in the background of the aforesaid factual and
legal position, that we would venture to adjudicate upon the
controversy raised in these connected civil appeals.
14. It is relevant to mention, that in the first instance, a
challenge to the rules referred to hereinabove, was raised at E
the hands of the erstwhile members of the ministerial cadre,
namely, those members of the original ministerial cadre, who
had not opted for appointmenUabsorption _into the cadre of
Data Entry Operators. In their challenge raised before the
Central Administrative Tribunal, Madras Bench, Chennai F
(hereinafter referred to as, the Administrative Tribunal), a
common order dated 30.12.2003 was passed, while disposing
of Origin.al Application nos. 558, 538 and 909 of 2003, and a
common order dated 30.4.2004 was passed while disposing
of Original Application nos. 462 and 639 of 2003. Another G
order dated 24.6.2004 was passed, while disposing of Original
Application no. 1025 of 2003. And likewise, an order dated
2.8.2004 was passed, while disposing of Original Application
no. 1150 of 2003. And finally, an order dated 14.10.2004 was
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212 SUPREME COURT REPORTS [2015] 15 S.C.R.

A passed while disposing of Original Application no. 71 of 2004.
It would be relevant to mention, that the solitary contention
raised at the hands of the erstwhile members of the ministerial
cadre (who had not opted for the appointment/absorption into
the cadre of Data Entry Operators) was, that the process of
B bifurcation of cadres followed by the re-amalgamation thereof,
had adversely affected their seniority. Accordingly, the erstwhile
members of the ministerial cadre, claimed restoration of the
position of their seniority as it originally existed, with reference
to such other members of the ministerial cadre who had opted
c for absorption into cadre of Data Entry Operators, and who
had thereafter, as a matter of re-amalgamation (under the
provisions of the TA Rules, 2003 and the STA Rules, 2003)
been appointed as Tax Assistants and Senior Tax Assistants·
respectively. The instant claim raised by the erstwhile members
D of the ministerial cadre, came to be accepted by the
Administrative Tribunal vide orders dated 30.12.2003,
30.4.2004, 26.4.2004, 2.8.2004 and 14.10.2004, on the basis
of the law laid down by this Court in Om Prakash Sharma v.
Union of India, 1985 (Supp.) SCC 218.
E 15. The orders passed by the Administrative Tribunal
referred to in the foregoing paragraph were assailed through
Writ Petition Nos. 8361, 8388, 17208, 17257, 21692 to 21694,
29468, 34708, 38622 of 2004 and Writ Petition Nos. 2723,
3302 and 8606 of 2005. They were also assailed through
F Writ Petition MP Nos. 9866, 20444, 20497, 26220, 26221,
35789, 35791, 41879, 46155 of 2004; 12236 and 9286 of
2005; 17258 and 17508 of 2006; and WPMP No. 864 of 2004.
The instant challenge was raised at the hands of the Union of
India, as also, the members of the cadre of Data Entry
G Operators, who were merged into the cadre ofTaxAssistants
and SeniorTaxAssistants, consequent upon the promulgation
of the TA Rules, 2003 and STA Rules, 2003. All the above
mentioned writ petitions were disposed of by the High Court

H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 213
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

of Judicature at Madras (hereinafter referred to as, the High A
Court) by a common judgment and order dated 13.4.2007.
While adjudicating upon the aforesaid controversy, the High
Court, in paragraph 24 of the impugned judgment and order
dated 13 .4.2007, framed the questions arising for
determination. Paragraph 24 is being extracted hereunder:- B
"24. The contesting respondents have not
challenged the entire rules relating to the restructure
of the cadres and the merger/integration of
ministerial cadre and technical cadre before the
Tribunal. It is only the rules relating to the fixation of c
inter se placement of the erstwhile ministerial ~adre
staff and the erstwhile technical cadre staff in the
restructured cadre which are challenged before the
Tribunal. The contesting respondents, who are
presently working as Preventive Officers on ad hoc D
basis, claim that for determining the inter se
placement of the ministerial cadre staff and the
technical cadre staff in the restructured cadre, the
date of initial appointment in the services of the
Central Excise and Customs Departments should E
be taken into consideration. On the other hand,
the writ petitioners claim that the fixation of inter se
seniority should be on the basis of the date of
regular appointment in the respective grades, but
subject to the condition that inter-se placement in F
the respective category, is legal and reasonable."
It is, therefore apparent, that the issue agitated before
the High Court was the same as had been agitated before the
Administrative Tribunal. While adjudicating upon the
propositions canvassed before it, the High Court in paragraph G
35 of the impugned judgment and order, observed as under:-
"35. We have no quarrel with the proposition of law
enunciated by the Apex Court. But, in the cases on
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214 SUPREME COURT REPORTS [2015] 15 S.C.R.

A hand, all the parties emerge from the same cadre
of LDC and only by virtue of option, some parties
have opted to the post of Data Entry Operators and
by virtue of the impugned Rules they were afforded
fortuitous advantage that too without any stringent
B conditions like passing the Departmental Tests like
the case of a LDC who is required to pass the same
to seek promotion to the next category of UDC,
while the rest of the LDCs. who have not opted for
the post of Data Entry Operators and were stick on
c to the much higher responsible position, were put
in a most disadvantageous position. The inter se
seniority has been fixed by the impugned Rules only
based on the pay and giving a go-bye to all the
norms prescribed by the Apex Court. Since the
D impugned legislation suffers from the vice of
discrimination and unreasonableness, we hold that
the impugned Rules are arbitrary and violative of
Articles 14 and 16 of the Constitution, since they
give unreasonable advantage and a steep forward
E for an otherwise low category persons like Data
Entry Operators as against the LDCs/UDCs/Tax
Assistants, who perform highly responsible and
complex duties unlike mere entering a data by the
Data Entry Operators."
F Thereupon, the High Court considered the controversy
in the following perspective:-
"38. It was shown, by instances, by the learned
senior counsel for the respondents that while in a
short span of time, that too, without any condition
G
like passing out any Departmental Test, the Data
Entry Operators moved from one Grade to other
with higher pay structure, the LDCs, who have not
opted for the post of Data Entry Operator, have
remained and stagnated as LDCs. itself and
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 215
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

because of the impugned Rules, the position has A
further worsened, since it blocked their further
promotional avenues, by placing persons like Data
Entry Operators, who have already enjoyed the fruits
of promotion more than once, over and above
LDCs/UDCs/TaxAssistants in the inter se seniority B
list. It is to be mentioned that promotion is an
incidence of service.
xxx xxx xxx xxx
43. A forcible argument was advanced on the part c
of the respondents demonstrating how by virtue of
the impugned Rules, the LDCs, who have not opted
to be posted as Data Entry Operators were se-
verely prejudiced and how the restructured cadres
have paved way for the junior DEOs to have a
D
march over the other senior employees of the erst-
while ministerial cadre and get fortuitous advan-
tage. It has also been demonstrated by materials
how the impugned Rules are working hard against
the senior eligible candidates without any
E
promotional avenue, since being blocked by the
far junior Data Entry Operators. Though, as held by
the Apex Court, seniority is not a fundamental right,
the State should have created promotional avenues
for the respondents having regard to its constitu-
F
tional obligations adumbrated in Articles 14 and 16
of the Constitution of India.
44. Therefore, the official respondents would not
be justified in blocking the promotional avenues of
the respondents/UDCs or Tax Assistants, as the G
case may be, without framing proper rules and fram-
ing faulty and arbitrary Rules like the ones in dis-
pute. Promotion, as held by the Apex Court is a
condition and incidence of service and as held by
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216 SUPREME COURT REPORTS [2015] 15S.C.R.

A the Apex Court in the above Judgement, even there
is an obligation on the part of the State under Ar-
ticles 14 and 16 of the Constitution to create pro-
motional avenues for the employees and any Rule
or procedure, which goes against the above
B dictum, could well be termed as an arbitrary exer-
cise of power and violative of Articles 14 and 16 of
the Constitution.
45. The impugned Rules put LDCs/UDCs/Special Pay
UDCs/Tax Assistants in a most disadvantageous
c position than their far juniors of Data Entry Operators,
even though the nature of duties and powers exercised
by them while holding the post of LDCs/UDCs/Special
Pay UDCs/Tax Assistants not only carry a complex
nature of duties but also high responsibilities, which would
D increase manifold by promotion from LDC to
UDC/Special Pay UDC and from UDC/Special Pay UDC
to TaxAssistant. Therefore, we have no hesitation to hold
that the impugned Rules are violative of Articles 14 and
16 of the Constitution and are liable to be quashed."
E
The above consideration reveals, that the co-incidental
prejudice suffered by the erstwhile members of the ministerial
cadre, consequent upon the merger of cadres constituted the
foundational basis, of the determination. Their lost chances
F of promotion, and the prejudice suffered by them on the subject
of seniority, on account of deprivation of the chances of
promotion, remained uppermost in the mind of the High Court,
while recording its final conclusion in paragraph 46 as under:-
"46. We have given our anxious consideration to
G all the aspects of the case put forth by both sides
and found that the Tribunal has analyzed the case
in a proper perspective and having regard to the
guidelines issued by the Apex Court regarding
fixation of inter se seniority in such cases and has
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 217
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

arrived at an unerring conclusion to hold that the A
seniority principle stipulated in the impugned
notifications is unfair to the ministerial cadre of the
Department and considering any other date than
the date of initial appointment is discriminatory and
arbitrary. We are unable to find any illegality or B
irregularity or perversity in approach in the well
considered and merited decision arrived at by the
Tribunal. Therefore, we see no merit in the
contentions raised by the petitioners/Data Entry
Operators and the same deserve to be rejected." C
16. The challenge to the impugned orders passed by
the Administrative Tribunal, and affirmed by the High Court,
will need an evaluation at our hands, in the background of the
consideration applied in the adjudication of the controversy.
We shall, at the first instance, venture to determine whether D
the propositions applied for the determination of the controversy
by the Administrative Tribunal and by the High Court, were in
consonance with the law declared by this Court.
17. ltwould be relevant to mention, thatthe disputed issue E
of seniority, came to be determined in the impugned orders,
by placing reliance on Om Prakash Sharma's case (supra).
To understand the controversy settled by this Court in the
aforementioned judgment, it is essential to extract the
conclusions drawn therein. The same are accordingly being F
extracted hereunder:-
"2. Department styled as workshop mentioned at
Serial No. 2 above was merged with the department
office of the Chief Electrical Engineer, Bombay. This
merger continued till July 31, 1979. Effective from G
August 1, 1979, all the three original departments
trifurcated on August 31, 1956 were re-
amalgamated in the matter of staff and a common
seniority list was introduced in respect of all the four
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218 SUPREME COURT REPORTS [2015] 15 S.C.R.

A cadres which were prior to September 1956 on a
common seniority list. Pursuant to the
amalgamation common seniority list (Annexure 6)
was drawn up. It purports to be the combined
seniority list of the Railway Administration, Electrical
B Department, Central Railway, Jhansi. Validity of the
seniority list is impugned in this appeal. In this
seniority list Appellant 1 is at Serial No. 3, Appellant
2 is at Serial No. 4, and Appellant 3 is at Serial No.
10. The department has assigned seniority to
c Respondents 3-6, in the same seniority list at Serial
Nos. 2, 5, 6 and 9 respectively in the cadre of head
clerks. The appellants contend that when the three
departments had a common seniority list, the
appellants were senior to Respondents 3 to 6, but
D after trifurcation and re-amalgamation Respondents
3 to 6 who belonged to erstwhile workshop staff
and who were amalgamated with the staff of the
Chief Electrical Engineer, Bombay, obtained
accelerated promotion because of easy availability
E of vacancies. Consequently, when re-
amalgamation was introduced from August 1, 1979
when Respondents 3 to 6 reverted to the common
seniority list with appellants and other similarly
situated persons, they scored a march over the
F appellants because of a fortuitous event. The
contention in terms is that where staff employed in
different units under the administrative control of one
higher officer are borne on a common seniority list,
when because of trifurcation re-amalgamation all
G are brought back on the common seniority list, their
position ante must be reflected in the seniority list.
Original seniority it is said must prevail otherwise
any other view would be denial of equality of
opportunity in the matter of public employment
H guaranteed under Article 16 of the Constitution.
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 219
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

Accordingly the appellants challenged the seniority A
list in Writ Petition 1415of1983 in the High Court
of Judicature atAllahabad.ADivision Bench of the
High Court by a short cryptic order rejected the writ
petition observing that the Court did not find any
merit in the writ petition. Hence this appeal by B
special leave.
3. The appellants have an iron-clad case. The facts,
not disputed, .to summarise briefly are that under
the Divisional Electrical Engineer there were three
separate departments under his administrative c
control. Members of the staff of the three
departments were borne on a common seniority
list. In other words they were deemed to belong to
one office in the matter of seniority and promotion.
This is not only not disputed but the averment to D
that effect in para 6 of the petition has been
admitted in the counter-affidavit filed on behalf of
the Railway Administration. It is again admitted that
the three appellants since their entry into service
were senior to Respondents 3 to 6. For the E
administrative convenience the Railway
Administration trifurcated the cadres. In other
words, three units were separated from each other
which resulted in each unit having its own seniority
list and the common seniority list became irrelevant F
from the date of the trifurcation. The Unit No. 2 called
the workshop was amalgamated with the office of
the Chief Electrical Engineer, Bombay. That is not
controverted. Respondents 3 to 6 belonged to the
administrative staff in the department styled as the G
workshop. The result of the trifurcation and
amalgamation of the workshop with the Bombay
office was that the workshop staff including
Respondents 3 to 6 were taken over on the seniority
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220 SUPREME COURT REPORTS [2015] 15 S.C.R.

A list maintained by the Bombay office. It is admitted
that on account of availability of vacancies in the
Bombay office Respondents 3 to 6 got some
accelerated promotions in the cadre of head clerks.
Surprisingly after a span of 23 years, Railway
B Administration reconsidered its earlier decision
and detached the workshop staff from the office of
the Chief Electrical Engineer, Bombay and brought
it back to Jhansi and three former departments
under Divisional Electrical Engineer were
c amalgamated. In other words situation ante as on
August 31, 1956 was restored, and members of
the staff were brought on common seniority list
cadre-wise. This factual averment is unambiguously
admitted. Consequent upon amalgamation in 1979
D a fresh commori seniority list was drawn up in which
cadre-wise Respondent 3 was shown senior to
Appellants 1 and 2 and Respondents 5, 6 and 9
were shown senior to Appellant 3. Obviously when
the amalgamation took place, Respondents 3 to 6
E could not score a march over erstwhile seniors on
any valid principle of seniority. This would
unquestionably be denial of equality under Article
16 of the Constitution. It may be that they might have
enjoyed some accelerated promotion when
F workshop staff was amalgamated with the Bombay
office. But when they were repatriated and re-
amalgamated with original two offices and brought
back on the common seniority list, they must find
their original place qua the appellants. This is not a
G case where appellants were passed over at the time
of selection or denied promotion on the ground of
unsuitability. In such a situation status quo ante has
to be restored. Obviously Respondents 3 to 6 will
be below the appellants and any other view to the
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 221
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

contrary would be violative of Article 16 as it would A
constitute denial of equality in the matter of
promotion. Therefore, the seniority list drawn up on
a principle contrary to what is discussed herein
would be bad in law and deserves to be quashed."
A perusal of the above judgment reveals, that there were 8
three independent divisions, under a singular control, namely,
(1) Divisional Electrical Engineers, Jhansi, (2) Office of the
Assistant Electrical Engineers (Workshop), Jhansi, and (3)
Office of the Assistant Electrical Engineer, Jabalpur. These ·
three divisions had separate offices. The clerical staff of the C
said departments, namely, clerks, senior clerks, head clerks
and chief clerks, were borne on a common seniority list till
31.8.1956. From 1.9.1956 onwards, these three divisions/
departments, earlier under the singular control of the Divisional
Electrical Engineer, Jhansi, were separated from each other D
(consequent upon the introduction of divisionalization, in the
railways). These three divisions, therefore, became three
independent departments. The clerical staff of the three
separated departments, came to be placed in independent
seniority lists. The aforesaid process came to be reversed, E
and the earliertrifurcation, was undone by re-amalgamation,
which resulted in the restoration of status quo ante, as it
prevailed up to 31.8.1956. In the background of the
foundational facts narrated hereinabove, this Court concluded
that the process of trifurcation, followed by the process of re- F
amalgamation, restoring the status quo ante, could not result
in some of the members of the erstwhile common cadre in
scoring a march with reference to seniority, over others who
were earlier senior to them. We shall first endeavour to
determine whether the legal position declared by this Court in G
Om Prakash Sharma's case (supra) could have been applied
to the present controversy.
18. The factual position in Om Prakash Sharma's case
(supra) reveals, that the employees whose inter-~e seniority
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222 SUPREME COURT REPORTS [2015] 15 S.C.R.

A dispute arose for consideration, were holding the position of
clerks, senior clerks, head clerks and chief clerks in three
divisions under the control of the Divisional Electrical Engineer,
Jhansi. The said three divisions were made independent
departments, and the employees working in each of the
B departments whilst continuing as clerks, senior clerks, head
clerks and chief clerks, were placed in different seniority lists.
All the above posts in the three departments were re-
amalgamated. Consequent upon re-amalgamation, a common
seniority list came to be framed for clerks, senior clerks, head
c clerks and chief clerks. It is in the above circumstances, that
this Court concluded, that the process of trifurcation, and
subsequent re-amalgamation, would result in denial of equality,
if persons who were junior prior to 31.8.1956, were assigned
positions of seniority above to those who were senior to them
D prior to the trifurcation. And that, such an action would result in
denial of equality, provided for under Article 16 of the
Constitution of India. It was, therefore concluded, that
consequent upon the re-amalgamation, resulting in the
employees being brought back in the common seniority list,
E they must be arrayed in the seniority list, in the same manner
as they were positioned prior to the trifurcation.
19. Insofar as the present controversy is concerned, it is
apparent from the factual narration recorded hereinabove, that
the ministerial cadre as it originally existed, comprised of posts
F of Deputy Office Superintendent (Levels 1 and 2), Upper
Division .Clerk, Lower Division Clerk, Stenographer (Senior
Grade and Ordinary Grade), Draftsman etc. Consequent upon
promulgation of the Electronic Data Processing Posts (Group
'C' Technical Posts) Recruitment Rules, 1992, a separate
G cadre .of Data Entry Operators came to be created.
Appointment thereto, at the time of initial constitution of the
cadre of Data Entry Operators, was made out of the original
ministerial cadre. The posts under the 1992 Rules, had a
different qomenclature, vis-a-vis the posts in the ministerial
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 223
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

cadre. Their duties and responsibilities were separate and A
distinct, from that of the ministerial cadre. So were their
avenues of promotion. The lowest post in the cadre of Data
Entry Operators was designated as Data Entry Operator Grade
'P\. Onward promotion was to the post of Data Entry Operator
Grade 'B', and thereafter, to Data Entry Operator Grade 'C', B
and finally, to Data Entry Operator Grade 'D'. In the above
view of the matter, it is not possible for us to accept, that the
creation of the cadre of Data Entry Operators, can be described
as a mere bifurcation of the original cadre. A bifurcation
simpliciter would envisage a division of the same posts, as c
they originally existed, in two separate units. The controversy
adjudicated upon in Om Prakash Sharma's case (supra) is
illustrative of a simpliciter bifurcation (actually trifurcation),
where the cadre posts remained the same, but there was a
vertical division, whereby the said posts were re-constituted· D
as two (actually three) separate cadres. Thereafter, the cadres
were re-amalgamated, so as to restore the earlier position. In
the present controversy, it is not possible to conclude, that the
original position was ever restored. Consequent upon the
promulgation of the TA Rules, 2003 and the STA Rules, 2003, E
the amalgamation resulted in appointments to the cadres of
TaxAssistants and SeniorTaxAssistants. Neither of the parties
concerned, held either of these posts prior to the promulgation
of the abovementioned rules. It is, therefore, that we must
conclude, that the judgment rendered in Om Prakash Sharma's F
case (supra) was incorrectly applied, while adjudicating upon
the present controversy.
20. It is also not possible for us to accept, that the
promulgation of the TA Rules, 2003 and the STA Rules, 2003
can be termed as a process of re-amalgamation of the erstwhile G
cadre. Consequent upon the promulgation of the above rules,
posts from the ministerial cadre (regulated by the Central
Excise and Land Customs Department Group 'C' Posts
Recruitment Rules, 1979), and the posts under the cadre of
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224 SUPREME COURT REPORTS [2015] 15 S.C.R.

A Data Entry Operators (regulated by the Electronic Data
Processing Posts (Group 'C' Technical Posts) Recruitment
Rules, 1992), came to be merged into independent cadres of
· Tax Assistants and Senior Tax Assistants. What was
contemplated under the TA rules, 2003 and the STA Rules,
B 2003, was an amalgamation of posts from two separate
cadres. This certainly did not result in restoration of the status
quo ante, as it existed prior to the promulgation of the 1992
Rules. The position here is of amalgamation, and not re-
amalgamation as is in Om Prakash Sharma's case (supra).
c Members of the two separate cadres, which were sought to
be amalgamated, were required at the time of initial
constitution of the cadres, to qualify the departmental
examination, and alternatively the departmental computer
proficiency examination, under Rules 4(2) and 4(3) of the TA
D Rules, 2003 and under Rule 5(v) of the STA Rules, 2003. The
above departmental examinations would render them suitable
to discharge the duties of the posts of Tax Assistants and Senior
Tax Assistants respectively. It is therefore apparent, that on
the amalgamation of the pre-existing cadres, they would be
E required to discharge additional duties of a different nature,
for which their proficiency was being ensured through the
prescribed departmental examinations. It is, therefore, not
possible for us to conclude, that the TA Rules, 2003 and the
STA Rules, 2003 had the effect of re-amalgamation of the
F ministerial cadre and the cadre of Data Entry Operators, so
as to restore the position which existed, before the creation of
the cadre of Date Entry Operators.
21. At the cost of repetition we wish to reiterate, that the
factual scenario which emerges for determination in the
G present controversy, is not akin to that which had arisen for
consideration before this Court in Om Prakash Sharma's case
(supra). Therein, the original cadre which comprised of the
posts of clerks, senior clerks, head clerks and chief clerk, was
trifurcated and then re-amalgamated. The re-amalgamated
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 225
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

cadre also comprised of posts of clerks, senior clerks, head A
clerks and chief clerks. The conclusions drawn in the above
judgment, therefore, cannot be applicable to the facts and
circumstances of the present case. We are satisfied in
concluding, that the Courts below clearly erred in disposing
of/determining the controversy in hand by applying the law B
declared by this Court in Om Prakash Sharma's case (supra).
22. We shall now venture to deal with another aspect of
the matter, emerging out of the impugned order passed by the
High Court. The conclusions drawn by the High Court, as have
been recorded in paragraph 46 of the impugned judgment and C
order dated 13.4.2007, emerged out of a consideration which
was noticed in paragraphs 38 to 45. Paragraphs 38 and 43
to 46 of the impugned judgment and order, have already been
extracted hereinabove. A perusal of the above consideration
reveals, that the High Court was swayed by the co-incidental D
prejudice suffered by the erstwhile members of the ministerial
cadre, resulting in lost chances of promotion. The aforesaid
consideration could have been justified only if chances of
promotion are treated as conditions of service. Insofar as the
instant aspect of the matter is concerned, this Court has E
repeatedly examined the issue whether chances of promotion
constitute conditions of service. In this behalf, reference may
be made to a few judgments rendered by this Court:
(i) First of all, we may advert to the decision rendered by F
this Court in State of Maharashtra &Anr. v. Chandrakant
Anant Kulkarni & Ors., (1981) 4 SCC 130, wherein a
three Judge Bench of this Court held as under:-
"16. Mere chances of promotion are not conditions
of service and the fact that there was reduction in G
the chances of promotion did not tantamount to a
change in the conditions of service. A right to be
considered for promotion is a term of service, but
mere chances of promotion are not. Under the
H
226 SUPREME COURT REPORTS [2015] 15 S.C.R.

A Departmental Examination Rules for STOs, 1954,
framed by the former State Government of Madhya
Pradesh, as amended on January 20, 1960, mere
passing of the departmental examination conferred
no right on the STls of Bombay, to promotion. By
B passing the examination, they merely became
eligible for promotion. They had to be brought on
to a select list not merely on the length of service,
but on the basis of merit-cum-seniority principle. It
was, therefore, nothing but a mere chance of
c promotion. In consequence of the impugned orders
of reversion, all that happened is that some of the
STls, who had wrongly been promoted as STOs
Grade Ill had to be reverted and thereby lost a few
places. In contrast, the conditions of service of
D ASTOs from Madhya Pradesh and Hyderabad, at
least so far as one stage of promotion above the
one held by them before the reorganisation of
States, could not be altered without the previous
sanction of the Central Government as laid down
E in the Proviso to sub-section (i) of Section 115 of
the Act."
(ii) Reference may also be made to the decision of this
Court in Palaru Ramkrishnaiah & Ors. v. Union of India &
Anr., (1989) 2 SCC 541, wherein a three Judge Bench
F of this Court held as under:-
"12. In the case of Ramchandra Shankar Deodhar,
(1974) 1 sec 317, the petitioners and other
allocated Tahsildars from ex-Hyderabad State had
under the notification of the Raj Pramukh dated
G
September 15, 1955 all the vacancies in the posts
of Deputy Collector in the ex-Hyderabad State
available to them for promotion but under
subsequent rules of July 30, 1959, 50 per cent of
the vacancies were to be filled by direct recruitment
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 227
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

and only the remaining 50 per cent were available A
for promotion and that too on divisional basis. The
effect of this change obviously was that now only
50 per cent vacancies in the post of Deputy
Collector being available in place of all the
vacancies it was to take almost double the time for B
many other allocated Tahsildars to get promoted
as Deputy Collectors. In other words it resulted in
delayed chance of promotion. It was, inter alia,
urged on behalf of the petitioners that the situation
brought about by the rules of July 30, 1959 c
constituted variation to their prejudice in the
conditions of service applicable to them
immediately prior to the reorganisation of the State
and the rules were consequently invalid. While
repelling this submission the Constitution Bench .D
held: (SCC p. 329, para 15)
"All that happened as a result of making
promotions to the posts of Deputy Collectors
divisionwise and limiting such promotions to 50
per cent of the total number of vacancies in the E
posts of Deputy Collector was to reduce the
chances of promotion available to the
petitioners. It is now well settled by the decision
of this Court in State of Mysore v. G. 8. Purohit,
1967 SLR 753, that though a right to be F
considered for promotion is a condition of
service, mere chances of promotion are not. A
rule which merely affect chances of promotion
cannot be regarded as varying a condition of
service. In Purohit case (supra), the districtwise G
seniority of sanitary inspectors was changed to
Statewise seniority, and as a result of this change
the respondents went down in seniority and
became very junior. This, it was urged, affected
H
228 SUPREME COURT REPORTS [2015] 15 S.C.R.

A their chances of promotion which were protected
under the proviso to Section 115, sub-section
(7). This contention was negatived and
Wanchoo, J., (as he then was), speaking on
behalf of this Court observed: 'It is said on behalf
B of the respondents that as their chances of
promotion have been affected their conditions
of service have been changed to their
disadvantage. We see no force in this argument
because chances of promotion are not
c conditions of service.' It is, therefore, clear that
neither the Rules of 30-7-1959, nor the
procedure for making promotions to the posts
of Deputy Collector divisionwise varies the
conditions of service of the petitioners to their
D disadvantage."
xxx xxx xxx
15. It cannot be disputed that the Director General
of Ordnance Factories who had issued the Circular
dated November 6, 1962 had the power to issue
E
the subsequent Circular dated January 20, 1966
also. In view of the legal position pointed out above
the aforesaid circ1:Jlar could not be treated to be
one affecting adversely any condition of service of
the Supervisors 'A'. Its only effect was that the
F
chance of promotion which had been accelerated
by the Circular November 6, 1962 was deferred
and made dependent on selection according to the
Rules. Apparently, after the coming into force of the
order dated December 28, 1965 and the Circular
G
dated January 20, 1966 promotions could not be
made just on completion of two years' satisfactory
service under the earlier Circular dated November
6, 1962 the same having been superseded by the
later circular. It is further obvious that in this view of
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 229
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

the matter Supervisors'/!\ who had been promoted A
before the coming into force of the order dated
December 28, 1965 and the Circular dated January
20, 1966 stood in a class separate from those
whose promotions were to be made thereafter. The
fact that some Supervisors'/!\ had been promoted B
before the coming into force of the order dated
December 28, 1965 and the Circular dated January
20, 1966 could not, therefore, constitute the basis
for an argument that those Supervisors '/!\whose
cases came up for consideration for promotion c
thereafter and who were promoted in due course
in accordance with the rules were discriminated
against. They apparently did not fall in the same
category."
(iii) This Court had also declared the position of law, on D
the above aspect of the matter, in Syed Khalid Rizvi &
Ors. v. Union of India & Ors., 1993 Supp. (3) SCC 575,
wherein a three Judge Bench observed as under::..
"30. The next question is whether the seniority is a
E
condition of service or a part of rules of recruitment?
In State of M.P. v. Shardul Singh, (1970) 1 SCC
108, this Court held that the term conditions of
service means all those conditions which regulate
the holding of a post by a person right from the time
F
of his appointment (emphasis supplied) to his
retirement and even beyond, in matters like
pensions etc. In l.N. Subba Reddy v. Andhra
University, (1977) 1 SCC 554, the same view was
reiterated. In Mohd. Shujat Ali v. Union of India,
G
(1975) 3 SCC 76, a Constitution Bench held that
the rule which confers a right to actual promotion or
a right to be considered for promotion is a rule
prescribing a condition of the service. In Mohd.
Bhakar v. Krishna Reddy, 1970 SLR 768, another
H
230 SUPREME COURT REPORTS [2015] 15S.C.R.

A Constitution Bench held that any rule which affects
the promotion of a person relates to his condition
of service. In State of Mysore v. G.B. Purohit, 1967
SLR 753, this Court held that a rule which merely
affects chances of promotion cannot be regarded
B as varying a condition of service. Chances of
promotion are not conditions of service. The same
view was reiterated in another Constitution Bench
judgment in Ramchandra Shankar Deodhar v. State
of Maharashtra, (1974) 1 SCC 317. No doubt
c conditions of service may be classified as salary,
confirmation, promotion, seniority, tenure or
termination of service etc. as held in State of Punjab
v. Kailash Nath, (1989) 1 SCC 321, by a Bench of
two Judges but the context in which the law therein
o was laid must be noted. The question therein was
whether non-prosecution for a grave offence after
expiry of four years is a condition of service? While
negativing the contention that non-prosecution after
expiry of 4 years is not a condition of service, this
E Court elaborated the subject and the above view
was taken. The ratio therein does not have any
bearing on the point in issue. Perhaps the question
may bear relevance, if an employee was initially
recruited into the service according to the rules and
F promotion was regulated in the same rules to higher
echelons of service. In that arena promotion may
be considered to be a condition of service. In A.K.
Bhatnag;,:ir v. Union of India, (1991) 1 SCC 544,
this Court held that seniority is an incidence of
G service and where the service rules prescribe the
method of its computation it is squarely governed
by such rules. In their absence ordinarily the length
of service is taken into account. In that case the
direct recruits were made senior to the recruits by
H regularisation although the appellants were
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 231
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

appointed earlier in point of time and uninterruptedly A
remained in service as temporary appointees along
with the appellants but later on when recruited by
direct recruitment, they were held senior to the ·
promotees.
31. No employee has a right to promotion but he B
has only the right to be considered for promotion
according to rules. Chances of promotion are not
conditions of service and are defeasible. Take an
illustration that the Promotion Regulations envisage
maintaining integrity and good record by Dy. S.P. c
of State Police Service as eligibility condition for
inclusion in the select-list for recruitment by
promotion to Indian Police Service. Inclusion and
approval of the name in the select-list by the UPSC,
after considering the objections if any by the Central D
Government is also a condition precedent. Suppose
if 'B' is far junior to '/:\in State Services and 'B' was
found more meritorious and suitable and was put
in a select-list of 1980 and accordingly 'B' was
appointed to the Indian Police Service after E
following the procedure. 'A' was thereby
superseded by 'B'. Two years later 'A' was found fit
and suitable in 1984 and was accordingly
appointed according to rules. Can 'A' thereafter say
that 'B' being far junior to him in State Service, '/\ F
should become senior to 'B' in the Indian Police
Service. The answer is obviously no because 'B'
had stolen a march over 'A' and became senior to
'A'. Here maintaining integrity and good record are
conditions of recruitment and seniority is an G
incidence of service. Take another illustration that
the State Service provides - rule of reservation to
the scheduled castes and scheduled tribes. '/:\is a
general candidate holding No. 1 rank according to
H
232 SUPREME COURT REPORTS [2015] 15 S.C.R.

A the roster as he was most meritorious in the State
service among general candidates. 'B' scheduled
castes candidate holds No. 3 point in the roster and
'C', scheduled tribe holds No. 5 in the roster.
Suppose Indian Police Service Recruitment Rules
B also provide reservation to the Scheduled Castes
and Scheduled Tribes as well. By operation of the
equalityofopportunitybyArticles 14, 16(1), 16(4)
and 335, 'B' and 'C' were recruited by promotion
from State Services to Central Services and were
c appointed earlier to '/!>:.in 1980. '/!>:.thereafter in the
next year was found suitable as a general candidate
and was appointed to the Indian Police Service.
Can 'A' thereafter contend that since 'B' and 'C'
were appointed by virtue of reservation, though
o were less meritorious and junior to him in the State
service and gradation list would not become senior
to him in the cadre as IPS officer. Undoubtedly 'B'
and 'C', by rule of reservation, had stolen a march
over 'A' from the State Service. By operation of rule
E of reservation 'B' and 'C' became senior and 'A'
became junior in the Central Services. Reservation
and roster were conditions of recruitment and
seniority was only an incidence of service. The
eligibility for recruitment to the Indian Police
F Service, thus, is a condition of recruitment and not
a condition of service. Accordingly we hold that
seniority, though, normally an incidence of service,
Seniority Rules, Recruitment Rules and Promotion
Regulations form part of the conditions of
G recruitment to the Indian Police Service by
promotion, which should be strictly complied with
before becoming eligible for consideration for
promotion and are not relaxable."
(iv) More recent in time, is the judgment rendered by
H another three Judge Division Bench in S.S. Bola & Ors.
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 233
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

v. B.D. Sardana & Ors., (1997) 8 SCC 522. The majority A
opinion in the above judgment was rendered by Justice
K. Ramaswamy. In the process of consideration, he
observed as under:-
"145. It is true that the Rules made under the proviso
to Article 309 of the Constitution can be issued by B
amending or altering the Rules with retrospectivity
as consistently held by this Court in a catena of
decisions, viz., B.S. Vadera v. Union of India, AIR
-1969 SC 118; Raj Kumarv. Union of India, (1975)
4 SCC 13; K. Nagaraj v. State of A.P., (1985) 1 c
SCC 523; T.R. Kapur v. State of Haryana, 1986
Supp. SCC 584, and a host of other decisions. But
the question is whether the Rules can be amended
taking away the vested right. As regards the right
to seniority, this Court elaborately considered the D
incidence of the right to seniority and amendment
of the Act in the latest decision in Ashok Kumar
Gupta v. State of U.P., (!977) 5 SCC 201, relieving
the need to reiterate all of them once over. Suffice
it to state that it is settled law that a distinction E
between right and interest has always been
maintained. Seniority is a facet of interest. The rules
prescribe the method of selection/recruitment.
Seniority is governed by the existing rules and is
required to be worked out accordingly. No one has F
a vested right to promotion or seniority but an officer
has an interest to seniority acquired by working out
the Rules. It would be taken away only by operation
of valid law. Right to be considered for promotion
is a rule prescribed by conditions of service. A rule G
which affects the promotion of a person relates to
conditions of service. The rule merely affecting the
chances of promotion cannot be regarded as
varying the conditions of service. Chances of
promotion are not conditions of !3Rrv!ce. A rule which H
234 SUPREME COURT REPORTS [2015] 15S.C.R.

A merely affects the chances of promotion does not
amount to change in the conditions of service."
Consequent upon the above detailed consideration,
Justice K. Ramaswamy recorded hfs conclusion in paragraph
153. On the issue in hand, sub-paragraph AB of paragraph
B 153 is relevant and is being extracted hereunder:-.
"AB. A distinction between right to be considered
for promotion and an interest to be considered for
promotion has always been maintained. Seniority
c is a facet of interest. The rules prescribe the method
of recruitment/selection. Seniority is governed by
the rules existing as on the date of consideration
for promotion. Seniority is required to be worked
out according to the existing rules. No one has a
D vested right to promotion or seniority. But an officer
has an interest to seniority acquired by working out
the rules. The seniority should be taken away only
by operation of valid law. Right to be considered
for promotion is a rule prescribed by conditions of
service. A rule which affects chances of promotion
E
of a person relates to conditions of service. The
rule/provision in an Act merely affecting the chances
of promotion would not be regarded as varying the
conditions of service. The chances of promotion
are not conditions of service. A rule which merely
F
affects the chances of promotion does not amount
to change in the conditions of service. However,
once a declaration of law, on the basis of existing
rules, is made by a constitutional court and a
mandamus is issued or direction given for its
G
enforcement by preparing the seniority list,
operation of the declaration of law and the
mandamus and directions issued by the Court is
the result of the declaration of law but not the
operation of the rules per se."
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNiON OF 235
INDIA & OTHERS [JAG DISH SINGH KHEHAR, J.]

Justice S. Saghir Ahmad concurred with the view A
expressed by Justice K. Ramaswamy. A dissenting view
was recorded by Justice G.B. Pattanaik. On the subject
in hand, however, there was no dissent. The conclusions
recorded by Justice G.B. Pattanaik were to the following
effect:- B
."199. To the said effect the judgment of this Court
in the case of State of Punjab v. Kish an Das, ( 1971 )
1 SCC 319, wherein this Court observed an order
forfeiting the past service which has earned a
government servant increments in the post or rank c
he holds, howsoever adverse it is to him, affecting
his seniority within the rank to which he belongs or
his future chances of promotion, does not attract
Article 311 (2) of the Constitution since it is not
covered by the expression reduction in rank. D
200. Thus to have a particular position in the
seniority list within a cadre can neither be said to
be accrued or vested right of a government servant
and losing some places in the seniority list within
E
the cadre does not amount to reduction in rank even
though the future chances of promotion get delayed
thereby. It was urged by Mr Sachar and Mr Mahabir
Singh appearing for the direct recruits that the effect
of redetermination of the seniority in accordance
F
with the provisions of the Act is not only that the
direct recruits lose a few places of seniority in the
rank of Executive Engineer but their future chances
of promotion are greatly jeopardised and that right
having been taken away the Act must be held to be - G
invalid. It is difficult to accept this contention since
chances of promotion of a government servant are
not a condition of service. In the case of State of
Maharashtra v. ChandrakantAnant Kulkarni, (1981)
4 SCC 130, this Court held: (SCC p. 141, para 16)
H
236 SUPREME COURT REPORTS [2015] 15 S.C.R.

A "16. Mere chances of promotion are not
conditions of service and the fact that there was
reduction in the chances of promotion did not
tantamount to a change in the conditions of
service. A right to be considered for promotion
B is a term of service, but mere chances of
promotion are not."
201. To the said effect a judgment of this Court in
the case of K. Jagadeesan v. Union of India, (1990)
2 SCC 228, wherein this Court held: (SCC pp. 230-
c 31, para 7)
"The only effect is that his chances of promotion
or his right to be considered for promotion to
the higher post is adversely affected. This cannot
D be regarded as retrospective effect being given
to the amendment of the rules carried out by the
impugned notification and the challenge to the
said notification on that ground must fail."
202. Again in the case of Union of India v. S.L. Dutta,
E (1991) 1SCC505, this Court held: (SCC p. 512,
para 17)
"In our opinion, what was affected by the change
of policy were merely the chances of promotion
of the Air Vice-Marshals in the Navigation
F Stream. As far as the posts of Air Marshals open
to the Air Vice-Marshals in the said stream were
concerned, their right or eligibility to be
considered for promotion still remained and
hence, there was no change in their conditions
G of service."
xxx xxx xxx
212. So far as the rules dealing with Irrigation
Branch are concerned, the said rules namely the
H Punjab Service of Engineers (Irrigation Branch)
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 237
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

Class I Service Rules, 1964 have not been A
considered earlier by this Court at any point of time.
One Shri M.L. Gupta was appointed to the post of
Assistant Executive Engineer as a direct recruit on
27-8-1971, pursuant to the result of a competitive
examination held by the Haryana Public Service B
Commission in December 1970. The said Shri
Gupta was promoted to the post of Executive
Engineer on 17-9-1976. He made a representation
to the State Government to fix up his seniority in
accordance with the service rules but as the said c
representation was not disposed of for more than
three years he approached the High Court of Punjab
and Haryana by filing CWP No. 4335 of 1984. That
petition was disposed of by the High Court on the
undertaking given by the State that the seniority will D
be fixed up soon. The said undertaking not having
been complied with, the said Shri Gupta
approached the High Court in January 1986 by filing
a contempt petition. In September 1986 the State
Government fixed the inter se seniority of the said E
Shri Gupta and other members of the Service and
Gupta was shown at Serial No. 72. Two promotees
had been shown at Serial Nos. 74 a.nd 75. Those
two promotees filed a writ petition challenging the
fixation of inter se seniority between the direct F
recruits and promotees and the High Court of
Punjab and Haryana by its judgment passed in May
1987 quashed the order dated 29-9-1986
whereunder the seniority of the direct recruits and
promotees has been fixed and called upon the State G
Government to pass a speaking order assigning
position in the gradation list. The State Government
issued a fresh notification on 24-7-1987 giving
detailed reasons reaffirming the earlier seniority
which had been notified on 29-9-1986. Prior to the
H
238 SUPREME COURT REPORTS [2015] 15 S.C.R.

A aforesaid notification of the State Government Shri
Gupta had filed a writ petition in the Punjab and
Haryana High Court which had been registered as
CWP No. 6012 of 1986 claiming his seniority at
No. 22 instead of 72 which had been given to him
B under the notification dated 29-9-1986. The
promotees also filed a writ petition challenging the
government order dated 24-7-1987 which was
registered as CW P No. 5780 of 1987. Both the writ
petitions, one filed by the direct recruit, Shri Gupta,
c (CWP No. 6012of1986) and the other filed by the
promotees (CWP No. 5780 of 1987) were
disposed of by the learned Single Judge by
judgments dated 24-1-1992 and 4-3-1992,
respectively, whereunderthe learned Single Judge
D accepted the stand of the promotees and Shri
Gupta was placed below one Shri O.P. Gagneja.
The said Shri Gupta filed two appeals to the Division
Bench against the judgment of the learned Single
Judge, which was registered as Letters Patent
E Appeals Nos. 367 and 411 of 1992. The aforesaid
letters patent appeals were allowed by judgment
dated 27-8-1992. This judgment of the Division
Bench of the Punjab and Haryana High Court was
challenged by the State of Haryana in the Supreme
F Court which has been registered as CAs Nos.
1448-49 of 1993. This Court granted leave and
stayed the operation of the judgment in the matter
of fixation of seniority. The promotees also
challenged the said judgment of the Division Bench
G in this Court which has been registered as CAs
Nos. 1452-1453 of 1993. During the pendency of
these appeals in this Court, an Ordinance was
promulgated on 13-5-1985 as Ordinance No. 6 of
1995 and the said Ordinance was replaced by the
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 239
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

impugned Act 20 of 1995 by the Haryana A
Legislature. The validity of the Act was challenged
by the said Shri Gupta and pursuant to the order of
this Court the said writ petition having been
transferred to this Court has been registered as TC
No. 40 of 1996. So far as the validity of the Act is B
concerned, the question of any usurpation of judicial
power by the legislature does not arise in relation
to the Irrigation Branch inasmuch as the
Recruitment Rules of 1964 framed by the Governor
of Punjab in exercise of power under proviso to C
Article 309 of the Constitution which has been ·
adapted by the State of Haryana on and from the
date Haryana was made a separate State had not
been considered by this Court nor has any direction
been issued by this Court. The legislative o
competence of the State Legislature to enact the
Act had also not been assailed and in our view
rightly since the State Legislature has the powers
under Entry41 of List II of the Seventh Schedule to
frame law governing the conditions of service of E
the employees of the State Government. That apart
Article 309 itself stipulates that the appropriate
legislature may regulate the recruitment and
conditions of service of persons appointed to public
services and posts in connection with the affairs of F
the Union or of any State subject to the provisions
of the Constitution. Proviso to Article 309 confers
power on the President in connection with the affairs
of the Union and on the Governor in connection with
the affairs of the State to make rules regulating the G
recruitment and the conditions of service until
provision in that behalf is made by or under an Act
of the appropriate legislature under Article 309 main
part. In this view of the matter, the legislative
H
240 SUPREME COURT REPORTS [2015] 15 S.C.R.

A competence of the State Legislature to enact the
legislation in question is beyond doubt. The only
question which, therefore, arises for consideration
and which is contended in assailing the validity of
the Act is that under the Act the direct recruits would
B lose· several positions in the gradation list and
thereby their accrued and vested rights would get
jeopardised and their future chances of promotion
also would be seriously hampered and such
violation tantamounts to violation of rights under
c Part Ill of the Constitution. For the reasons already
given while dealing with the aforesaid contention
in connection with the Public Health Branch and the
Buildings and Roads Branch the contention raised
in the transfer case cannot be sustained and,
D therefore, the transfer case would stand dismissed.
The Act in question dealing with the service
conditions of the engineers belonging to the
Irrigation Branch must be held to be a valid piece
of legislation passed by the competent legislature
E and by giving it retrospective effect no constitutional
provision has been violated nor has any right of the
employee under Part Ill of the Constitution been
infringed requiring interference by this Court."
(v) Finally, reference may be made to a decision
F rendered by this Court in Union of India &Ors. v. Colonel
G.S. Grewal, (2014) 7 SCC 303, wherein this Court
observed as under:-
"28. As pointed out above, the Tribunal has partly
allowed the OA of the respondent primarily on the
G
ground that the decision contained in the
Government Order dated 23-4-2010 amends the
promotion policy retrospectively thereby taking
away the rights already accrued to the respondent
in terms of the earlier policy. It is also mentioned
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 241
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

that the revised policy fundamentally changes the A
applicant's prospects of promotion. What is ignored
is that the promotions already granted to the
respondent have not been taken away. Insofar as
future chances of promotions are concerned, no
vested right accrues as chance of promotion is not B_
a condition of service. Therefore, in the first
instance, the Tribunal will have to spell out as to
what was the vested right which had already
accrued to the respondent and that is taken away
by the Policy decision dated 23-4-2010. In this c
process, other thing which becomes relevant is to
consider that once the respondent is permanently
seconded in QGQA and he is allowed to remain
there, can .there be a change in his service
conditions vis-a-vis others who are his counterparts D
in DGQA, but whose permanent secondment is not
in cloud? To put it otherwise, the sole reason for
issuing Government Policy dated 23-4-2010 was
to take care of those cases where permanent
secondment to DGQA was wrongly given. As per E
the appellants, since the respondent had suffered
final supersession, he was not entitled to be
seconded permanently to DGQA. This is disputed
by the respondent. That aspect will have to be
decided first. That apart, even if it be so, as F
contended by the appellants, the appellants have
not recalled the permanent secondment order. They
have allowed the respondent to stay in DGQA
maintaining his promotion as Colonel as well, which
was given pursuant .to this secondment. The G
question, in such circumstances, that would arise
is whether the respondent can be treated differently
even if he is allowed to remain in DGQA viz. whether
not allowing him to take further promotions, which
benefit is still available to others whose permanent
H
242 SUPREME COURT REPORTS [2015] 15S.C.R.

A secondment is not in dispute, would amount to
discrimination or arbitrariness thereby offending
Articles 14 and 16 of the Constitution of India. In
our opinion, these, and other related issues, will
have to be argued and thrashed out for coming to
B a proper conclusion."
23. It is apparent from a collective perusal of the
conclusions recorded in the judgments extracted in the
foregoing paragraph, that chances of promotion do not
constitute a condition of service. In that view of the matter, it is
C inevitable to hold, that the High Court erred in recording its
eventual determination on the basis of the fact that the
promulgation of the TA Rules, 2003 and the STA Rules, 2003
was discriminatory and arbitrary with regal"c! to the fixation of
the inter se seniority, since the same seriously prejudiced the
D chances of promotion of the erstwhile members of the
ministerial cadre, namely, those members of the original
ministerial cadre, who had not opted for appointment/
absorption into the cadre of Data Entry Operators, with
reference to and in comparison with, those members of the
E original ministerial cadre who had opted for appointment/
absorption into the cadre of Data Entry Operators.
24.As a proposition of law it is imperative for us to record,
that chances of promotion do not constitute conditions of
F service, and as such, mere alteration of chances of promotion,
would not per se call for judicial interference. The above general
proposition would not be applicable, in case the chances of
promotion are altered arbitrarily, or on the basis of
considerations which are shown to be perverse or mala fide.
G 25. In the background of the factual and legal position
debated and concluded hereinabqve, only one submission
survives for our consideration, namely, whether the inter se
seniority determined at the initial constitution of the cadres of
Tax Assistants and Senior Tax Assistants under Rule 4 of the
H
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 243
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

TA Rules, 2003 and Rule 5 of the STA Rules, 2003, respectively, A
is acceptable in law. It is not the case of the appellants, that
any perversity or malafides are involved in the above
determination, it is however the pointed submission of the
appellants, that the same is arbitrary and discriminatory. And
therefore, violative of the provisions of Articles 14 and 16 of B
the Constitution of India. In this behalf, the submission
advanced on their behalf was two-fold. Firstly, that dissimilar
posts had been equated. And secondly, that the equation of
posts determined merely on the pay-scales attached to them,
would not be acceptable in law. c
26. Insofar as the former of the said two contentions is
concerned, the submission was again two-fold. Firstly, reliance
had been placed on Rule4 of the TA Rules, 2003. Under Rule
4(1) thereof, Upper Division Clerks and Data Entry Operators
Grade 'A' had been equated with one another, and members D
belonging to the aforesaid two cadres had been given the
highest position in the seniority list (at the stage of the initial
constitution). The inter se seniority amongst the Upper Division
. Clerks and Data Entry Operators, is mandated to be
determined, for purposes offurther promotion, with effect from E
the date on which the concerned incumbent was appointed on
regular basis as such. The submission advanced by the
learned counsel was, that sub-rule (2) of Rule 4 of the TA Rules,
2003, required a Data Entry Operator Grade '/!\, who had
come to be appointed as Tax Assistant, at the initial constitution F
under the TA Rules, 2003, to pass a departmental examination
within two years of such appointment, failing which such Data
Entry Operator Grade'/!\, would not be entitled to any further
increment. Accordingly, the submission advanced at the hands
of learned counsel was, that the aforesaid mandate clearly G
demonstrated, that a Data Entry Operator Grade'/!\, had per
se been found to be deficit, for discharging duties against the
post of Tax Assistant. The aforesaid deficiency was sought to
be satisfied and fulfilled, according to learned counsel, by
H
244 SUPREME COURT REPORTS [2015] 15 S.C.R.

A requiring the Data Entry Operator Grade 'A', to qualify a
departmental examination, within a period of two years. That
being the acknowledged position emerging from the statutory
rules, the contention advanced was, that the post of Data Entry
Operator Grade 'P\, could not have been treated as equal to
B the post of Upper Division Clerk, and as such, the determination
of inter se seniority for onward promotion regulated by Rule
4(1 )of the TA Rules, 2003, must bedeemed to be both arbitrary
and discriminatory, and as such, violative of Articles 14 and
16 of the Constitution of India.
C 27. In order to counter the submission advanced at the
hands of the learned counsel, as has been narrated in the
foregoing paragraph, it was the contention of learned counsel
representing the erstwhile Data Entry Operators Grade 'A,
who came to be appointed as Tax Assistants, at the initial
D constitution of the aforesaid cadre, under the mandate of Rule
4 of the TA Rules, 2003, that the erstwhile members of the
ministerial cadre, on the above analogy, must also be likewise
considered to be deficit in effectively discharging the duties
assigned to the post of Tax Assistant, inasmuch as, sub-rule
E (3) of Rule 4 of the TA Rules, 2003 likewise mandates, that a
member of the ministerial cadre holding the post of Lower
Division Clerk on regular basis, and falling within the seniority
list determined by the appointing authority, would have to pass
the departmental computer proficiency examination. It was
F further submitted, that only from the date of passing the above
examination, the person concerned would be deemed to have
been promoted as TaxAssistant. It was the pointed contention
of learned counsel, that whilst the deficiency in Data Entry
Operators Grade 'P\, was with reference to lack of knowledge
G of relevant procedures, the deficiency in members of the
ministerial cadre was on account of lack of knowledge relating
to computer applications.
28. Learned senior counsel representing the Union of
H India painstakirigly pointed out, that the ministerial cadre as it
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 245
INDIA &OTHERS [JAGDISH SINGH KHEHAR, J.]

was originally constituted, handled all procedures manually. A
Consequent upon a policy decision having been taken, it was
decided to computerize the functioning of the Customs and
Central Excise Department. This resulted in the promulgation
of the Electronic Data Processing Posts (Group 'C' Technical
Posts) Recruitment Rules, 1992. The creation of the cadre of B
Data Entry Operators was considered to ee imperative, to give
effect to the aforesaid administrative determination, to
computerize the functioning of the Customs and Central Excise
Department. According to the learned senior counsel, on
completion of the process of computerization it was felt, that c
for an effective functioning of the Customs and Central Excise
Department, the existing persons who were proficient in
matters of relevant procedures, needed working experience
with reference to computer applications. Likewise, Data Entry
Operators, it was felt, needed proficiency with reference to D
relevant procedures. Therefore, it was pointed out, that neither
the erstwhile members of the ministerial cadre, nor the
members of the cadre of Data Entry Operators, were fully
qualified to handle the duties and responsibilities in the
Customs and Central Excise Department, after its E
computerization. Therefore, while merger of above two cadres
was given effect to . the deficiencies in the two cadres were
sought to be removed by requiring them to qualify the
prescribed departmental examination.
29. Asimilar contention was advanced by learned counsel F
representing the private respondents, on the basis of Rule 5
of the STA Rules, 2003. We have already analysed
hereinabove the effect of merger contemplated under Rule 5
of the STA Rules, 2003. Despite our analysis of the aforesaid
provision, to which learned counsel forthe rival parties have G
expressed their approval, the contention advanced by the
learned counsel was based on clause (v) of Rule 5 of the STA
Rules, 2003. Yet again, the contention was, that Data Entry
Operators Grade 'C' could not be equated with Assistants,
H
246 SUPREME COURT REPORTS [2015] 15S.C.R.

A and likewise Data Entry Operators Grade 'B' could not be
equated with Tax Assistants. The pointed submission in this
behalf was, that Data Entry Operators were required by the
mandate of clause (v) of Rule 5 of the STA Rules, 2003, to
qualify a departmental examination for achieving proficiency
B in the relevant procedures, within two years, failing which they
would not be eligible.for any further increment. The instant
submission is akin to the one advanced at the hands of learned
counsel on the basis of sub-rules (3) and (4) of Rule 4 of the
TA Rules, 2003. The response at the hands of the learned ·
c senior counsel representing the Union of India, and the
members of the cadre of Data Entry Operators was, that the
deficiency highlighted by the learned counsel with reference
to Data Entry Operators need to be examined closely,
inasmuch as, a similar deficiency was likewise highlighted in
D clause (v) of Rule 5 of the STA Rules, 2003, even with reference
to erstwhile members of the ministerial cadre. The erstwhile
members of the ministerial cadre, it was pointed out, were
required to qualify a departmental examination on the subject
of computer applications, within two years, failing which they
E too would not be eligible for any further increment.
30. Learned senior counsel representing the Union of
India, reiterated the factual and legal position, as he had
highlighted with reference to Rule 4 of the TA Rules, 2003,
whilst interpreting Rule 5 of the STA Rules, 2003. Yet again it
F was pointed out, that on the completion of the computerization
process, there were deficiencies in ministerial cadre, as also,
in the cadre of Data Entry Operators, and therefore, at the initial
constitution of the cadre of Senior Tax Assistants, the
deficiencies in both the cadres were sought to be satisfied, by
G providing for different departmental examinations for them. It
was the contention of the learned senior counsel representing
the Union of India, that the submission of learned counsel,
pointing out deficiency in only one of the cadres, namely, the ·
cadre of Data Entry Operators, was wholly unjustified and
H unacceptable.
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 247.
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

31. Having given our thoughtful consideration to the A
submissions advanced at the hands of the learned counsel for
the rival parties, on the basis of Rule 4 of the TA Rules, 2003,
and Rule 5 of the STA Rules, 2003, it is not possible for us to
conclude, that members of either of the two cadres (the
erstwhile ministerial cadre, and the cadre of Data Entry B
Operators) can be treated to be superior to one or the other,
on account of the pointed deficiency, highlighted by the learned
counsel. It clearly emerges from the provisions relied upon,
that consequent upon the completion of the process of
computerization, in the Customs and Central Excise c
Department, the erstwhile members of the ministerial cadre
needed to be trained in computer applications, and the
erstwhile members of the cadre of Data Entry Operators
required to be instructed in relevant procedures. Thus viewed,
it is not possible for us to accept the contention of learned D
counsel, that either of the two cadres ought to be treated as
superior to the other. The first contention, premised on Rule 4
of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003,
respectively, is devoid of any merit, and is accordingly hereby
rejected. E
32. We shall now deal with the second submission
advanced before us during the course of hearing, namely, the
second contention noticed in paragraph 26 above. The pointed
submission advanced before us was, that the equation of posts
under Rule 4 of the TA Rules, 2003, and under Rule 5 of the F
STA Rules, 2003, was based exclusively on the pay-scales
attached to them. The resultant inter se seniority between the
posts at the initial constitution of the cadres under reference,
was also based exclusively on the pay-scales of the posts
sought to be merged. The aforesaid determination, under G
Rules 4 and 5 referred to hereinabove, according to learned
counsel, is wholly impermissible in law.
33. In order to canvass the proposition noticed in the
foregoing paragraph, learned counsel placed reliance on the
H
248 SUPREME COURT REPORTS [2015] 15 S.C.R.

A decision rendered by this Court in Chandrakant Anant
Kulkarni's case (supra). The controversy in the judgment cited
for our consideration, was aimed at determining, whether there
was denial of fair and equitable treatment, within the meaning
of sub-section (5) of Section 115 of the States Reorganization
B Act, 1956. The aforesaid fair and equitable treatment was,
with reference to the posts of Assistant Sales Tax Officers (from
the former States of Madhya Pradesh and Hyderabad) and
Sales Tax Inspectors (from the former State of Bombay), who
were allocated to the new State of Bombay. The question
c which arose for consideration, also had a bearing on the right
to promotion to the next higher post of Sales Tax Officer. This
Court while determining the above controversy, held as under:-
"9. Prior to the reorganisation of the States, a
conference of the Chief Secretaries of the States
D that were to be affected by the reorganisation was
held at Delhi on May 18 and 19, 1956 for the
purpose of the formulation of the principles upon
which integration of services was to be effected.
The Government of India by their letter dated April
E 3, 1957 informed the State Government that the
work of integration of services should be dealt with
by them in the light of the general principles already
settled at the Chief Secretaries Conference. This
has been construed to be a valid delegation of
F powers to prepare the preliminary and final
gradation lists under the direction and with the
sanction of the Central Government. The
Government of India by its circular dated May 11,
1957 to all the State Governments stated inter alia
G that it agreed with the views expressed on behalf
of the States' representatives that it would not be
appropriate to provide any protection in the matter
of departmental promotion. This circular has been
interpreted as a prior approval of the Central
H Government in terms of the proviso to sub-section
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 249
INDIA &OTHERS [JAGDISH SINGH KHEHAR, J.]

(7) of Section 115 of the Act in the matter of change A
in the conditions of service relating to departmental
promotions.
10. The following principles had been formulated
for being observed as far as may be, in the
integration of government servants allotted to the B
services of the new States:
"In the matter of equation of posts:
(i) Where there were regularly constituted
similar cadres in the different integrating units c
the cadres will ordinarily be integrated on that
basis; but
(ii) Where, however, there were no such
similar cadres the following factors will be
taken into consideration in determining the
D
equation of posts-
(a) nature and duties of a post;
(b) powers exercised by the officers holding a
post, the extent of territorial or other charge held E
or responsibilities discharged;
(c) the minimum qualifications, if any, prescribed
for recruitment to the post, and
(d) the salary of the post." F
It is well settled that these principles have a statutory force.
11. There is a long line of decisions of this Court
starting from the Union of India v. P.K. Roy, (1968)
2 SCR 186, laying down that the Central
G
Government has been constituted to be the final
authority in the matter of integration of services
under sub-section (5) of Section 115 of the Act. The
matter of equation of posts is purely an
administrative function. It has been left entirely to
H
250 SUPREME COURT REPORTS [2015] 15S.C.R.

A the Central Government as to how it has to deal
with these questions. The Central Government had
established an Advisory Committee for the purpose
of assisting in the proper consideration of the
representations made to it. There is nothing in
B Sections 115 to 117 of the Act prohibiting the
Central Government in any way from taking the aid
and assistance of the State Government in the
matter of effecting the integration of services. As
observed by this Court in Roy case the usual
c procedure followed by the Central Government in
the matter of integration of services generally, is in
order. It is not open to the court to consider whether
the equation of posts made by the Central
Government is right or wrong. This was a matter
D exclusively within the province of the Central
Government. Perhaps, the only question the court
can enquire into is whether the four principles
agreed upon at the Chief Secretaries Conference
had been properly taken into account. This is the
E narrow and limited field within which the supervisory
jurisdiction of the Court can operate. But where, as
here, in the matter of equation of posts, the Central
Government had properly taken into account all the
four principles decided upon at the Chief
F Secretaries Conference, the decision cannot be
assailed at all. In the present case, notonly the
Central Government had laid down the principles
for integration, but also considered the
representations and passed the final orders and
G the provisional gradation lists were prepared and
published by the State Government under the
direction and with the sanction of the Central
Government.
12. In accordance with the principles settled at the
H Chief Secretaries Conference, the Government of
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 251.
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

India, in consultation with the Central Advisory A
Committee, directed that the posts of ASTOs in the
former States of Madhya Pradesh and Hyderabad
should be continued in an isolated category, there
being no corresponding post in the successor State
of Bombay with which they could be equated. There B
were 19 AST Os in the pay scale of Rs 150-10-200-
EB-15-250 from Madhya Pradesh and 23ASTOs
in the pay scale of Rs 170-8~-225-EB-13-320 from
Hyderabad allocated to the new State of Bombay.
In the former State of Bombay there was no similarly c
constituted cadre of ASTOs, but there were posts
of STls in the pay scale of Rs 120-8-144-EB-8-200-
10/2-250. It would have been inequitable and unfair
to equate ASTOs from Madhya Pradesh and
Hyderabad with STls from Bombay, looking to the D
nature of their posts, the powers and
responsibilities and the pay scales attached to the
same. The A.STOs from Madhya Pradesh and
Hyderabad were, in the first instance, superior to
STls in their respective States and the post of ASTO E
in those States was a promotion post. In addition,
AST Os in those States were Assessing Authorities
and they enjoyed statutory powers of their own to
assess tax and levy penalties, whereas the STls in
Bombay had no such powers to assess tax or levy F
penalty but had merely to scrutinise returns and
generally act in a subordinate capacity to STOs.
Evidently, the State Government was wrong in
directing by its Resolution dated November 16,
1957 that the seniority of ASTOs from Madhya
G
Pradesh and Hyderabad and STls from Bombay
be fixed in the cadre of STls in the reorganised State
of Bombay on the basis of continuous service
including that in the lower grade. The principle
adopted by the State Government for determining
H
. 252 SUPREME COURT REPORTS [2015] 15 S.C.R.

A their relative inter se seniority was obviously wrong,
being contrary to the principles settled at the Chief
Secretaries Conference. As already stated, the
Government of India, on representation by the
affected ASTOs from Madhya Pradesh and
B Hyderabad, in consultation with the Central Advisory
Committee, directed that the inter se seniority
should be fixed taking into account continuous
service in the equated grade only subject to the inter
se seniority of the officers coming from the several
c integrating regions. Upon that basis, the State
Government by its Resolution dated September 10,
1960, rightly modified Notes 3 and 6 of its 1957
Resolution and directed that the seniority as on
November 1, 1956 of ASTOs from Madhya
D Pradesh and Hyderabad be fixed above the
persons in the cadre of STls and that the inter se
seniority of ASTOs from Madhya Pradesh and
Hyderabad be fixed on the basis of their continuous
service asASTOs in their respective States."
E Having dealt with the controversy on the parameters
recorded through the aforesaid observations, this Court
concluded as under:-
"19. Be that as it may, the fact remains that the
condition regarding the passing of the departmental
F examination became incapable of compliance in
the case of ASTOs from Madhya Pradesh and
Hyderabad who had been promoted as STOs
Grade Ill. They were entitled to such promotion
without passing su·ch examination. Under the
G relevant ruies which regulated their conditions of
service, there was only a possibility of reversion in
the eventuality of their not passing the examination
within the stipulated time. Since no examinations
admittedly have been held, there is no question of
H
DH OLE GOVIND SAHEBRAO & OTHERS v. UNION OF 253
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

their reversion asASTOs. lfthe decision of the High A
Court were to be upheld, it would imply that many
of the ASTOs from Madhya Pradesh and
Hyderabad who had been promoted as STOs
Grade Ill and during the past 20 years have reached
the higher echelons of service, would now have to B
be put back as ASTOs, for no fault of their own.
Many of them either have retired or are on the verge
of retirement.
20. There was thus no alternative for the State
Government but to suspend the operation of the C
amendment made on January 20, 1961 to Rule 1
(b )(ii) of the Recruitment Rules, by its order dated
October 1, 1965, which made the passing of the
STO examination a condition precedent for
promotion of STls to STO Grade Ill. There can be D
no doubt that the State Government's Resolution
dated June 13, 1964 and its memorandum of
November 21, 1964, clarifying that theASTOs from
Madhya Pradesh and Hyderabad were entitled for
promotion to the post of STO Grade Ill without E
passing the departmental examination, placed STls
from Bombay at a disadvantage. To ensure 'fair and
equitable treatment', the State Government rightly
dispensed with the requirement of passing the
departmental examination in the case of STls from F
the former State of Bombay.
21. In the end, reverting back to the main question.
On an overall view of things, we are satisfied that
the State Government acted with the best of
intentions. It endeavoured to strike a balance G
between the competing claims to relative seniority.
When sub-section (5) of Section 115 of the Act
speaks of"fair and equitable treatment", obviously
it envisages a decision which is fair and equitable
to all." H
254 SUPREME COURT REPORTS [2015] 15 S.C.R.

A 34. Reliance was also placed on the decision of this
Court in S.P. Shivprasad Pipal v. Union of India & Ors., (1998)
4 SCC 598. In the said judgment, this Court considered the
validity of the notification dated 3.2.1987, which had resulted
in the constitution of a Central Labour Service, by a merger of
B three existing cadres. According to the appellant before this
Court, the three cadres which were sought to be amalgamated,
had different statutory functions, different qualifications and
different duties and powers. By merging the three cadres,
according to the appellant before this Court, unequals had been
c treated as equals. The pointed contention on behalf of the
appellant, who belonged to one of the three cadres was, that
he had been placed in a condition, worse than the position he
occupied in the original cadre. The claim of the appellant was,
that his chances of promotion had been substantially
o diminished. One of the grounds for raising the challenge was,
that the merger of the three cadres was in violation of Articles
14 and 16 of the Constitution of India. This Court having taken
into consideration the decision in the Chandrakant Anant
Kulkarni's case (supra), concluded as under:-
E "14. The Cadre Review Committee after examining
the kinds of duties discharged by these officers
decided that since they all worked in the area of
labour welfare, it would be desirable that they could
widen their experience. This would be possible if
F the cadres were integrated and the posts were
made interchangeable so that the members of the
cadre could get a more" varied experience in
different areas of labour welfare, thus making for a
better-equipped cadre. Therefore, although the
G exact nature of work done by the three cadres was
different, it would be difficult to say that one cadre
was superior or inferior to the other cadre or
service.
15. A decision to merge such cadres is essentially
H a matter of policy. Since the three cadres carried
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 255
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

the same pay scale at the relevant time, merging A
of the three cadres cannot be said to have caused
any prejudice to the members of any of the cadres.
The total number of posts were also increased
proportionately when the merger took place so that
the percentage of posts available on promotion was B
not in any manner adversely affected by the merger
of the cadres. ·
16. The appellant, however, contends that as a result
of the merger his promotional chances have been
very adversely affected because his position in the C
seniority list has gone down. Rule 9 of the Central
Labour Service Rules, 1987 under which the
merger is effected, lays down the rules of seniority.
It provides that the inter se seniority of the officers
appointed to the various grades mentioned in D
Schedule I at the initial constitutional stage of the
service shall be determined according to the ·length
of regular continuous service in the grade subject
to maintenance in the respective grade of inter se
seniority of officers recruited in their respective E
original cadres. The proviso to this Rule prescribes
that although Assistant Labour Commissioner
(Central), Labour Officer and Assistant Welfare
Commissioner shall be equated, all Assistant
Labour Commissioners (Central) holding such F
posts on or before 31-12-1972 shall be en bloc
senior to Labour Officers and (2) Senior Labour
Officers and Regional Labour Commissioners shall
be equated. But all Regional Labour
Commissioners holding such posts on or before G
2-3-1980 shall be en bloc senior to the Senior
Labour Officers.
17. Explaining the proviso the respondents have
said that before 31-12-1972 Assistant Labour
Commissioners were in a higher pay scale than H
256 SUPREME COURT REPORTS [2015] 15S.C.R.

A Labour Officers. The parity between their pay
scales came about only from.January 1973. That
is why to preserve their inter se position, Assistant
La..," ,, Commissioners appointed prior to 31-12-
1g12 have ,_,0c;n placed above Labour Officers.
B Similarly, Regional Labour Commissioners drew
a higher pay scale than Senior Labour Officers prior
to 1980. The parity has come about in 1980 and
hence Regional Labour Commissioners holding
such posts on or before 2-3-1980 have been placed
c above Senior Labour Officers.
18. The seniority rules have thus been carefully
framed taking all relevant factors into consideration.
The respondents have also pointed out that as a
matter of fact, by reason cf the merger, the appellant
D has r1Gl, in fact, suffered ar.y prejudice and he has
also received promotions.
19. However, it is possible that by reason of such a
merger, the chance of promotion of some of the employees
E may be adversely affected, or some others may benefit in
consequence. But this cannot be a ground for setting aside
the merger which is essentially a poticy decision. This Court in
Union of India v. S.L. Dutta, (1991) 1 SCC 505, examined this
contention. In S.L. Dutta case a change in the promotional
policy was challenged on the ground that as a result, service
F conditions of the respondent were adversely affected since
his chances of promotion were reduced. Relying upon the
decision in the State of Maharashtra v. Chandrakant Anant
Kulkarni, (1981 )4 sec 130, this Court held that a mere chance
of prof",otion was ·1ot a condition of service and the fact that
G tt,..;re was a reduction in the crance of promotion would not
amount to a shn11ge :n the conditions of service."
35. It is in the background of the aforesaid submission
advanced at the hands of learned counsel, that we would
H consider the validity of the merger of cadres contemplated by
DHOLE GOVIND SAHEBRAO & OTHERS v. UNION OF 257
INDIA & OTHERS [JAGDISH SINGH KHEHAR, J.]

Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, A
2003. The position in the present controversy is not
comparable to the position examined by this Court in the
Judgments referred to hereinabove. It needs to be understood,
that the cadre of Data Entry Operators, was created out of the
original ministerial cadre. It is, therefore apparent, that the B
members of the two cadres were originally discharging similar
duties. It is only as a consequence of the administrative
decision to computerize the fun·ctioning of the Customs and
Central Excise Department, that a separate cadre of Data
Entry Operators came to be created. The newly created cadre, C
exclusively functioned towards giving effect to the decision to
computerize the functioning of the department. There was
thereafter a division of duties discharged by the original
members of the ministerial cadre. One cadre of employees
exclusively thereafter discharged procedural duties of the o
department, whereas, the other cadre of employees exclusively
thereafter discharged duties aimed at computerization of the
functioning of the department. Even though, it is apparent,
that the Data Entry Operators exclusively functioned towarc'
the process of computerization of the functioning of the E
Customs and Central Excise Department, yet that could not
be possible without their existing experience in the erstwhile
ministerial cadre. Consequent upon the merger of posts,
consequent; upon the promulgation of the TA Rules, 2003, and
the STA Rules, 2003, the nature and duties of the two cadres F
were combined. Consequent upon their appointment as Tax
Assistar:its and Senior Tax Assistants, members of the
erstwhile ministerial cadre, and members of the cadre of Data
Entry Operators, were required to perform both procedural
duties and duties relating to computer applications. The G
deficiencies in the two cadres sought to be merged, were
sought to be overcome, by subjecting the members of the 1':10
cadres to different examinations, whereby, the two cadres were
trained for discharging their duties efficiently, on merger, whilst
holding the posts of Tax Assistants/Senior Tax Assistants. It H
258 SUPREME COURT REPORTS [2015] 15S.C.R.

A is, therefore, not possible for us to accept, that there was any
serious difference between the two merged cadres, either on
the issue of nature of duties, or on the subject of powers
exercised by the officers holding the post, or the extent of
territorial or other charge held, or responsibilities discharged
B by them, or for that matter, the qualifications prescribed forthe
posts. On account of the aforesaid, by and large similarity, we
are satisfied, that the merger of the cadres, and the
determination of the inter se seniority on merger, were justifiably
determined, on the basis of the different pay-scales of the
c cadres merged, under the TA Rules, 2003 and the STA Rules,
2003. By the mandate of the above Rules, all posts in equivalent
pay-scales were placed at the same level. Posts in the higher
scale of pay, were given superiority on the subject of inter se
seniority, with reference to posts in the lower scale of pay. In
D our considered view, the above determination, at the hands of
the rule framing authority, on the issue canvassed before us,
cannot be termed either arbitrary or discriminatory. We are,
therefore satisfied in concluding, that the provisions of Rule 4
of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003,
E cannot be faulted on the touchstone of Articles 14 and 16 of
the Constitution of India.
36. For all the reasons recorded hereinabove, we are
satisfied, that the different orders passed by the A~ministrative
Tribunal, and the common order dated 13.4.2007 passed by
F the High Court, are liable to be set aside. The same are
accordingly hereby set aside. The appeals filed by those who
moved to the cadre of Data Entry Operators from the ministerial
cadre, and were thereupon amalgamated in the cadre of Tax
Assistants/SeniorTaxAssistants, are allowed. The connected
G appeals preferred by the Union of India, are also allowed. In
the above view of the matter, the authorities shall give effect to
Rules 4 and 5 of the TA Rules, 2003 and the STA Rules, 2003,
respectively, without any further delay.
Bibhuti Bhushan Bose Appeals allowed.
H