Holding

The 1976 and 1977 orders fixing seniority by a criterion different from that prescribed in Rule 35 were invalid, as administrative instructions cannot amend a statutory rule, and therefore the petitioners had no enforceable right under those orders.

Summary

The petitioners, former Emergency Commissioned Officers, were appointed to the Tamil Nadu Commercial Tax Service after discharge from the Army. Rule 35 of the Tamil Nadu State and Subordinate Service Rules required seniority to be fixed by date of appointment, but the State Government issued orders in 1976 and 1977 fixing seniority on the basis of the year they would have been appointed after military service, a benefit later extended to medical and engineering services but not to non‑technical services. The petitioners challenged the 1980 order cancelling the earlier orders, claiming a right to seniority and alleging denial of a hearing and arbitrary discrimination. The Supreme Court held that the 1976‑77 orders were invalid because they altered the statutory rule without amendment, and that administrative instructions cannot amend a rule that expressly provides a method of seniority fixation. Consequently, the petitioners could not claim any right under those orders and no hearing was required. The Court dismissed the appeal and special leave petitions.

Issues considered

The validity of administrative instructions issued by the State Government altering seniority fixation contrary to Rule 35 of the Tamil Nadu Service Rules.
Whether the 1976 and 1977 orders fixing seniority on the basis of post‑military appointment year were lawful.
Whether the petitioners were entitled to a hearing before the 1980 order cancelling the earlier orders.
Whether the differential treatment of non‑technical officers amounts to arbitrary discrimination violating Articles 14 and 16 of the Constitution.
Whether seniority benefits granted to medical and engineering services can be extended to non‑technical services without amending the statutory rules.

Legislation cited

Constitution of Indias. Art.14, s. Art.16, s. Art.309

Subjects

Service LawSeniority FixationAdministrative InstructionsRule 35DiscriminationConstitutional LawPublic Service Commission

Judgment

EX. CAPT. K. BALASUBRAMANIAN ETC.
v. A
STATE OF TAMIL NADU AND ANR. ETC.

MARCH 14, 1991

[K. JAGANNATHA SHETTY AND S.C. AGRAWAL, JJ.) B

Constitution of India, 1950: Articles 14, 16-Tamil Nadu State
~ and Subordinate Service Rules-Fixation of seniority-Benefit of mili-
, tary service to Emergency Commissioned Officers/Short .Service Regu-
lar Commissioned Officers-Given to Medical and Engineering
Services-Not to those in non technical services-Whether arbitrary
and discriminatory. c
Service Law: Tamil Nadu State and Subordinate Service Rules:
Rule 35-Fixation of seniority-Emergency Commissioned Officers/
Short Service Regular Commissioned Officers-On Re-employment in
State Service-Non-Technical Service-Commercial Tax Officers- D
Reckoning of seniority-Giving benefit of Military Service-Issue of
administrative instructions-Validity of.

The appellant/petitioners joined the Anny as Emergency Com-
missioned Officers in 1963 and were discharged during the years 1967
to 1970. After their discharge they joined the Commercial Tax Service E
).._ under the Respondent-State on selection by the State Public Service
Commission.

- It was provided under R.35 of the Tamil Nadu State and Subor-
dinate Service Rules that their seniority in the department would be
fixed in the order of preference indicated by the Service Commission p
and not with reference to the service in the Armed Forces.

\..;~,,--· However, in respect of similar candidates who were appointed as
Assistant Surgeons, the Government order provided that their seniority
would be fixed by allotting them the year in which they would have been
appointed to the post at the first possible attempt after the date· of G
joining military service/training. Thus, the concession of seniority
reckoned with reference to date of appointment in the Anny, which has
~ been extended to Asstt. Surgeons was denied to similar candidates
.,..._,.selected to other services categorised as non-technical.

On a suggestion made by the Public Service Commission, the H

845
846 SUPREME COURT REPORTS (1991] 1 S.C.R.

Respondent-State passed orders extending the benefit to the other ""
A
services also. The Respondent-State further extended the benefit of
fixation of seniority to all such candidates irrespective of their year of
recruitment. The appointing authorities were directed to take steps to
refix the seniority of such officials after issuing notice to all the affected
parties. Accordingly notices were issued, and in response thereof rep-
B resentations were received by the Respondent-State, which, after due
consideration decided not to implement the orders extending the --"'\
benefits to other candidates in the non-technical category.

Aggrieved by the said order issued on 3.8.1980 the affected
persons filed Writ Petitions before the High Court. A Single Judge
allowed the Writ Petitions holding that under orders dated November
c 16, 1976 and June 15, 1977, which were passed on the recommendations
of the Public Service Commission, the petitioners had acquired certain
rights in the matter of seniority and promotion and since the Govern-
ment order dated 3.3.1980 took away the said rights of the petitioners,
they should have been afforded an opportunity of hearing before pas-
D sing the said order. On appeal, the Division Bench set aside the judg-
ment of the Single Judge. .

In the appeal and special leave petitions preferred against the said
judgment it was contended that it was permissible for the State Govern- -'-..,
ment to i$sue administrative instructions with regard to determination
E . of the seniority and to remove the lacuna which was found in the exist-
ing rules, viz. discrimination between the Medical/Engineering service
and other services.

Dismissing the matters, this Court,

HELD: L Although the Government cannot amend the statutory
F
rules by Administrative instructions, if the rules are silent on any
particular point, the Government can fill up the gaps and supplement
:x
the rules and issue instructions not inconsistent with the rules already
framed. In the instant case, it cannot be said that on the date of issue of
orders dated November 16, 1976 and June 15, 1977, the rules were
G silent on the matter of fixation of seniority of persons recmited to the
Tamil Nadu Commercial Tax Service. [852E-F)
-(
Sant Ram Sharma v. State of Rajasthan & Anr., (1968] 1 SCR
111; Union of India v. H.R. Patankar & Ors., [1985] 1 SCR 400 and
State of Gujarat v. Akhilesh C. Bhargav & Ors., [1987] 3 SCR 1091,
H referred to.
K. BALASUBRAMANIAN v. STATE OF TAMIL NADU 847

~ 2. There was an express provision in the statutory rules viz. Rule
A
35 of the Tamil Nadu State and Subordinate Service Rules providing
that seniority shall be fixed on the basis of the date of appointment. By
orders dated November 16, 1976 and June 15, 1977, the said principle
for fixation of seniority contained in rule 35 was sought to be altered in
respect of Emergency Commissioned Officers /Short Service Regular
Commissioned Officers and the seniority was sought to be fixed on the B
basis of a different criterion, namely, by treating them as belonging to
..J--- the year in which they would have been appointed to the posts in their
first possible attempt after the date of joining military duty. This was
inconsi..'>tent with the principle for fixing the seniority contained in rule
_ · - 35 and this could only be done by suitably amending the said rules not
by issuing administrative instructions. The directions contained in
orders dated November 16, 1976 and June 15, 1977 were invalid being C
contrary to the provisions contained in Rule 35. Since the said orders
~'"'(· were invalid the appellant petitioners could not claim any right on the
basis of the said orders and there was, therefore, no question of afford-
ing them an opportunity of a hearing before passing the order dated
March 3, 1980. In so far as appointments to Medical and Engineering D
Services are concerned suitable amendments were made in the relevant
Service Rules relating to those services whereby the benefit of the Army
service was given in the matter of fixation of seniority. No similar
amendment has been made in the rules governing the non-technical
)..._ services e.g., Commercial Tax Service to which the appellant petitio-
ners were appointed. [853C-G] E

.. 3. Emergency Commissioned Officers/Short Service Regular
Commissioned Officers who have joined Medical and Engineering
Services of the Respondent-State were ,technically qualified in their
fields and they had worked in the Army in the same field in which they
are now employed in the State service. The benefit of the experience F
·:><'!" gained by them during the period of their service in the Army on the
· posts viz. Medical/Engineering held by them was available to the State
when they joined the Medical/Engineering Services of the Respondent-
State. The nature of the duties discharged by the appellant /petitioners
in the Army were different from the duties they are now required to
perform as Commercial Tax Officers in the State service. It cannot, G
. therefore, be said that the Emergency Commissioned Officers/Short
~--Service Regular Commissioned Officers who have j<_!ined the Medical
and Engineering Service of the State and the appellant/petitioners who
have joined the Commercial Tax Department of the State are persons
similarly situate in the matter of determination of seniority and for
counting their earlier Army Service for that purpose. (854B-D1 H
848 SUPREME COURT REPORTS [1991] 1 S.C.R.

Union of India & Ors. etc. v. Dr. S. Krishna Murthy & Ors. etc., ¥
A [ i989] Supp. 1 SCR 275, distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2992
of 1986.

B From the Judgment and Order dated 22.7.1986 of the Madras
High Court in W.P. No. 815 of 1985. ~

T.S. Krishnamurthy Iyer, Miss Purnima Bhat, Atul Sharma,
A. V. Pillai and E.C. Agrawala for the Appellant.

c
P. Chidambaram, R. Ayyam Perumal, K.C. Dua, V. Krishna-
murthy and R. Mohan for the Respondents.

The Judgment of the Court was delivered by
~.

-
S.C. AGRAWAL, J. This appeal and the connected petitions for
D special leave to appeal are directed against the common judgment of
the Division Bench of the Madras High Court dated July 22; 1986
whereby the judgment of the learned Single Judge has been set aside
and the writ petitions filed by the appellant as well as the petitioners in
the special leave petitions (referred to as 'the petitioners' for the sake -i.._
of convenience) have been dismissed.
E
The petitioners joined the Indian Army as Emergency Commis-
sioned Officers (ECOs) in 1963 after the Chinese aggression. They .-.
were discharged from the Army during the years 1967 to 1970. After
their discharge from the Army, they joined the Commercial Tax
Service of the State of Tamil Nadu on being selected by the Tamil
F N adu Public Service Commission through a competitive examination.
For rehabilitation of ECOs/Short Service Regular Commissioned ""':y ·
Officers (SSRCOs) on their release from the Armed Forces, the
Government of Tamil Nadu had by G .0. Ms. No. 84 dated January 1,
1967, reserved 25% of the vacancies to be filled by direct recruitment
during the four years 1967-1970 in respect of certain categories of posts
G in the State services. By Order, G.Q. Ms. No. 686 dated March 24,
1970, the Government of Tamil Nadu, in modification of the said~
order reserved 25% of the vacancies in non-technical posts under vari-
ous groups (both Gazetted and non-Gazetted) to be filled by direct
recruitment during five years commencing from 1969 for rehabilitation
of ECOs/SSRCOs on their release from the Armed Forces. The said
H order made provision for relaxation of age in case of such officers for
K. BALASUBRAMANIAN v. STATE OF TAMiL NADU 849

~the purpose of tectuitment to the reserved vacancies. As regards
seniority provision was made in paragraph 8 of the said ordet which A
prescribed as under: ·

lnter-se seniority among the candidates selected fot the .
.reserved vacancies will be determined by the Commission.
So far as the seniority in the depattmeht is concerned, the :B
officers will take their seniority with reference to the order
of preference indicated by the Commission and not with
reference to the service with the Armed Forces."

~ It appears that in respect of doctors who had joined the defence
forces in connection with the emergency declared in 1962 and who
were subsequently appointed in the cadte of Assistant Surgeons in the c
State of Tamil Nadu, the Government had issued an Order G.O. Ms.
--.. .(No. 2020 dated September 23, 1965, whereby seniority of such an
incumbent was to be fixed by allotting them the year in which he would
have been appointed to the post at his first possible attempt after the
date of joining military service/training. The Tamil Nadu Public D
Service Commission, in their letter dated February 6, 1973 addressed
to the Chief Secretary to the Government of Tamil Nadu, made a
reference to G.O. Ms. No. 2020 Health dated September 23, 1965 with
)-. rAegard to fixation of seniority of candidates appointed to the post of
ssistant Surgeon against vacancies reserved for ECOs/SSRCOs and
expressed the view that allowing one of released persons like Doctors E

--
to enjoy the concession of their seniority being reckoned with refer-
ence to their date of appointment in the Anny and at the same time
denying such a concession to ECOs/SSRCOs selected to a non-
technical post will not be fair and such differential treatment will not
also be in the interests of rehabilitating released Army personnel. The
. ~Public Service Commission, therefore, commended that the principle F
'~ followed in the matter of determining seniority in respect of released
·Army Doctors with reference to the date of their joining duty in the
Armed Forces be extended to all services as recruitment to all the
services are made on the basis of the competitive examinations com-
prising either of a written test or" an oral test or a combination of both.
In the said letter, it was requested that orders in paragraph 8 of G
\........G.0.Ms. 686 may be suitably modified. Keeping in view the aforesaid
view expressed by the State Public Service Commission, the Govern-
ment of Tamil Nadu passed an order G.O.Ms. No. 25 dated November
16, 1976 whereby, in supersession of the earlier' procedure prescribed
for determining the seniority of the ECOs/SSRCOs recruited for non-
technical posts (both. Gazetted and non-Gazetted) against reserved H
850 SUPREME COURT REPORTS (1991] 1 S.C.R.

vacancies in G.O.Ms. No. 686 dated March 24, 1970, the following --..J.
A
procedure was prescribed:

"(i) the seniority of the Emergency Commissioned/Short
Service Regular Commissioned Officers recruited to the
State Civil Services (both Gazetted and Non-Gazetted)
B between 24.3.70 to 4.10.73 against reserved vacancies shall
be fixed treating them as belonging to the year in which
they would have been appointed to. the posts in their first-~
possible attempt after the date of joining military service/
training."

After the issuance of the aforesaid order dated November 16,
c 1976, it was represented to the State Government that the concession
granted to the ECOs/SSRCOs recruited to the Civil Services of the
State between March 24, 1970 to October 4, 1973 in fixing seniority
may be extended to all ECOs/SSRCOs recruited to the Civil Services
of the State instead of confining it only to those recruited between
D 1970 and 1973. The State Government decided to accede to that
request and issued a fresh G.O.Ms. No. 734 dated June 15, 1977
whereby the orders in para l(i) of the Order dated November 16, 1976
were thus modified:

"1. (i) The seniority of Emergency Commissioned Officers/ ~
E Short Service Regular Commissioned Officers recruited to
the non-technical posts against reserved vacancies shall be
fixed treating them as belonging to the year in which they
would have been appointed to the posts in their first possi-
ble attempt after the date of joining military duty. In the
case of candidates who joined Military service on or before
--
F 30th June of a year, the year of allotment would be the same;
while in the case of those who joined the Military service""""'·__::,,, t
on or after Ist July of a year, the year of allotment would be ·
the next year."

By the said order, it was also directed that the appointing autho-
G rity should take steps to refix the seniority of the ECOs/SSRCOs
recruited to the Civil Service with reference to instructions after issu-
ing notices to all affected parties. In accordance with the aforesaid_..(
directions, notices were issued to the other officers whose seniority .
was likely to be disturbed in view of the concession extended to ECOs/
SSRCOs under Order dated June 15, 1977. After taking into con-
H sideration the representations received in pursuance of the said notice

.~
K. BALASUBRAMANIAN v. STATE OF TAMIL NADU [AGRAWAL, J.]851

~the State Government issued an Order G.O.Ms. No. 233 dated March
A
3, 1980 whereby the orders dated November 16, 1976 and June 15,
1977 were cancelled. In the said order, it was stated that:

"The Government have carefully examined the above
repesentations with reference to the legal position. They
consider that the vested seniority rights already accrued to B
individuals by virtue of the rules in force cannot be divested
by issuing fresh rules and giving retrospective effect to
them. The Government have therefore decided not to
implement those orders by amending the special Rules

- governing these non technical posts."

The petitioners as well as some other ECOs/SSRCOs filed writ
petitions in the Madras High Court challenging the validity of the said
-~ order dated March 3, 1980. The writ petitions were heard by a learned
c

Single Judge of the High Court who allowed the same by his judgment
dated December 4, 1984. The learned Single Judge was of the view
that under orders dated November 16, 1976 and June 15, 1977, which D
were passed on the recommendations of the Tamil N adu public Service
Commission, the petitioners had acquired certain rights in the matter
of seniority and promotion and since the impugned Government order
takes away the said rights of the petitioners, the petitioners should
),... have been afforded an opportunity of a hearing before passing the
impugned order which had not been done in this case. Appeals were E

-
filed by the State Government as well as by private respondents
against the said decision of the learned Single Judge. The said appeals
were decided by a Division Bench of the High Court by its judgment
dated July 22, 1976, whereby it was held that the provision with regard
to fixation of seniority in the cadre of Commercial Tax Officers
(CTOs) in which the petitioners were appointed is governed by Rule F
y 35 of the General Rules which are contained in Part II of the Tamil
"' Nadu State and Subordinate Service Rules made under proviso to
Article 309 of the Constitution and under the said rule, seniority is to
be fixed on the basis of date of appointment to the service. The learned
Judges found that the said Rules had not been amended and in the
absence of an amendment in rule 35, the orders with regard to fixation G
\ of seniority of ECOs/SSRCOs contained in Orders dated November
~ 16, 1976 and June 15, 1977 were invalid and no rights could accrue to
the petitioners on the basis of the said orders which may require ,
affording an opportunity to them. With regard to Doctors and
Engineers, the learned Judges have pointed out that suitable amend-
ments had been made in the relevant statutory rules relating to both H
852 SUPREME COURT REPORTS [1991] 1 S.C.R.

the services. The learned Judges, therefore, while setting aside the
A order of the learned Single Judge, dismissed the Writ petitions of the
petitioners but observed that the judgment would not prevent the
State Government from amending the Rules made under Article 309
of the Constitution and if and when rules are made and if any persons
are affected, they are entitled to challenge the said Rules. Feeling
B aggrieved by the said decision of the division Bench of the High Court,
the petitioners have approached this Court.

The first contention that has been urged by the learned counsel
for the petitioners is that the concessions contained in the orders dated
November 16, 1976 and June 15, 1977 were not invalid inasmuch as it
was permissible for the State Government to issue administrative
c instructions with regard to determination of the seniority of the ECOs/
SSRCOs and by the said orders which were issued on the recommenda-
tions of the State Public Service Commission the lacuna which was
found in the existing rules was sought to be removed and that it was
permissible for the State Government to issue administrative instruc-
D tions to remove such a lacuna. In support of the said submission,
reliance has been placed on the decisions of this Court in Sant Ram
Sharma v. State of Rajasthan & Anr., [1968] 1SCR111; Union of India
v. H.R. Patankar & Ors., [1985) 1 SCR400 and State of Gujarat v.
Akhilesh C. Bhargav & Ors., [1987) 3 SCR1091.

E In the above mentioned decisions, it has been laid down that
although the Government canno.t amend the statutory rules by
administrative instructions, but if the rules are silent on any particular
point, the Government can fill up the gaps and supplement the rules
and issue instructions not inconsistent with the rules already framed.
In the instant case, it cannot be said that on the date of issue of orders
F dated November 16, 1976 and June 15, 1977, the rules were silent on
the matter of fixation of seniority of persons recruited to the Tamil ---,,. ·
Nadu Commercial Tax Service. Appointment to the said service was ~
governed by General Rules contained in Part II of the Tamil Nadu
State and Subordinate Rules. Clauses (a) and (aa) of rule 35 of the said
General Rules provide as under:
G
"(a) The seniority of a person in a service;class or cate- J'
gory or grade shall unless he has been reduced to lower--"\
rank as a punishment, be determined by the rank obtained
by him in the list of approved candidates drawn up by the
Trmil Nadu Public Service Commission or other appointing
H authority, as the case may be, subjectto the rule cf reserva-
K. BALASUBRAMANIAN v. STATE OF TAMIL NADU [AGRAWAL, J.]853

tion where it applies. The date of commencement of his
A
probation shall be the date on which he joins duty irrespec-
tive of his seniority,

(aa) The seniority of a person in a·service, class or cate-
gory or grade shall, where the normal method of recruit-
ment to that service, class, category or grade is by more B
than one method of recruitment, unless the individual has
been reduced to a lower rank as a punishment, be d~ter-.
mined with reference to the date on which he is appointed
to the service, class, category or grade:"

-
·-- ~-

This shows that there was an express provision in the statutory
rules providing that seniority shall be fixed on the basis of the date of
appointment. By orders dated November 16, 1976 and June 15, 1977,
-~ the said principle for fixation of seniority contained in rule 35 was
C

sought to be altered in respect of ECOs/SSRCOs and the seniority was
sought to be fixed on the basis of a different criterion, namely, by
treating them as belonging to the year in which they would have been
appointed to the posts in their first possible attempt after the date of
joining military duty. This was inconsistent with the principle for fixing
the seniority contained in rule 35 of the General Rules and this could
only be done by suitably amending the said rules and it could not be
).. done by issuing administrative instructions. The High Court has, in
our opinion, rightly held that the directions contained in orders dated E
Nevember 16, 1976 and June 15, 1977 were invalid being contrary to
the provisions contained in rule 35 of the General Rules. Since the said
orders were invalid, the peritioners could not claim any right on the
basis of the said orders and there was, therefore, no question of afford-
ing them an opportunity of a hearing before passing the order dated
March 3, 1980. In so far as appointments to medical and engineering F
~-,<services are concerned, the High Court has pointed out that suitable
amendments were made in the relevent Service Rules relating to those
services whereby the benefit of the Army service was given· in the
matter of fixation of seniority of ECOs/SSRCOs, who had joined the
medical and engineering services. No similar amendment has been
made in the rules governing the non-technical services, e.g., Commer- G
\,._cial Tax Service to which the petitioners were appointed.

The learned counsel for the petitioners have next contended that
the petitioners have been subjected to arbitrarty discrimination in the
matter of fixation of their seniority inasmuch as ECOs/SSRCOs who
have joined the medical and engineering service of the Government of H
854 SUPREME COURT REPORTS [1991] 1 S.C.R.

Tamil Nadu have been given the benefit of their service in the Army in ')ti.._
A the matter of fixation of seniority whereas similar benefit has been
denied to the petitioners even though the petitioners as well as other
ECOs/SSRCOs who have joined medical and engineering service were
all similarly situate. In this connection, reliance has been placed on
the decision of this Court in Union of India & Ors. ets. v. Dr. S.
B Krishna Murthy & Ors. etc., [1989] Supp. (1) SCR 275. This conten-
tion, in our view, is misconceived. ECOs/SSRCOs who have joined
medical and engineering services of the State of Tamil Nadu were--~
technically qualified in their fields and they had worked in the Army in
the same field in which they are now employed in the State service.
The benefit of the experience gained by them during the period of __....,,. ___
their service in the Army on the posts viz. medical/engineering held by
c them was available to the State they joined the medical/engineering
services of the State of Tamil Nadu. The same cannot be said for the
petitioners because the nature of the duties discharged by them in the
Army were different from tlie duties they are now required to perform
as CTOs in the State service. It cannot, therefore, be said that the
D ECOs/SSRCOs who have joined the medical and engineering services
of the State of Tamil Nadu and the petitioners who have joined the
Commercial Tax Department of the State are persons similarly situate
in the matter of determination of seniority and for counting the e~rlier
Army service for that purpose.

E In Union of India v. Dr. S. Krishna Murthy, case (supra), the
ECOs/SSRCOs on discharge from the Army had joined the Indian
Forest Service and the Indian Police Service and provision was made in
the Regulation of Seniority Rules governing these Services whereby it
was provided that year of allotment of an officer appointed to the said
Service shall be deemed to be the year in which he would have been so
F appointed at his first or second attempt after the date of joining pre-
commission training or the date of their commission where there was ·).:/ •
only post-commission training. The validity of the said rules was chal-
lenged by other direct recruits to those Services on the ground that the
ECOs/SSRCOs could not be classified into a separate category. The
said contention was rejected by this Court and it was held that ECOs/
G SSRCOs formed a definite class, distinct from other officers of the
Indian Forest Service and Indian Police Service, and that the said
classification was founded on an intelligible differentia which distin~
guishes them from other officers and that the classification has rational
relation to the objects sought to be achieved by the Rules inasmuch as
it has been made for the purpose of compensating the ECOs/SSRCOs
H for the lost opportunity because of their joining the Army service.
K. BALASUBRAMANIAN v. STATE OF TAMIL NADU [AGRAWAL, J.]855

~he said decision may have a bearing in the event of rule being framed A
making provision for giving the benefit of Army service in the matter
of fixation of seniority of the petitioners and other persons who have
joined the Commercial Tax Service of the State of Tamil Nadu. Since
there is no such rule, the petitioners cannot derive any assistance from
this decision.
B
In the circumstances, we find no ground to interfere with the
>-crecision of the High Court. The appeal as well as the special leave
petitions are, therefore, dismissed but with no orders as to costs .

.,-G.N. Appeal and Petitions
dismissed.

·1