RAM JANAM SINGH AND ANR. ETC. ETC.versusSTATE OF UTTAR PRADESH AND ANR. ETC. ETC.

A                RAM JANAM SINGH AND ANR. ETC. ETC.
                                          v.
            STATE OF UTTAR PRADESH AND ANR. ETC. ETC.

                                JANUARY 25, 1994

B                  [K. RAMASWAMY AND N.P. SINGH, JJ.)

           Uttar Pradesh Non-technical (Class-II) Service (Reservation of vacan-
    cies for Demobilised Officers) Rules, 1973--Rules 3(1) and 6-Validity of.

C        Uttar Pradesh Non-technical (Class-II/Group 'B') Services (Appoint-
    ment of Demobilised Officers) Rules 1980: Rules 3(b) & 5-Validity of.

           Constitution of India, 1950: Article 14-Demobilised Defence Of-
    ficers-Officers recmited during emergency and officers recmited during nor-
    mal times-Classification for the purpose of preferential seniority in State
D   Service to former only-Held not arbitrary.

          Article 136-Special Leave Petitiort-Locus standi to file-Affected
    party though not impleaded in High Court proceedings-Can file petition.
                                                                                      -
          Rule 3(1) of the Uttar Pradesh Non-Technical (Class-II) Service
E   (Reservation of Vacancies for the Demobilised Officers) Rules, 1973 as well
    as Rule 3(b) of the Uttar Pradesh Non-Technical (Class-II/Group 'B')
    Services (Appointment of Demobilised Officers) Rules, 1980 provided for
    special seniority for Disabled Defence Service Officers Emergency Com·
    missioned Officers and the Short Service Commissioned Officers of the
F   Armed Forces, who were commissioned on or after November 1, 1962 but
    before January 10, 1968 and again those who were commissioned on or
    after December 3, 1971 and released at any time thereafter.

          Respondent-2, who had been recruited for Short Service Commis·
    sion in the Army on 6th September, 1970 and released on 3rd December,
G   1975 joined the U.P. State Civil Servi!::'e on 16th July, 1982, filed a writ in
    the Allahabad High Court without impleading the appellant who had
    entered into State Service before the respondent • contending that Rule           '   --
    3(1) 1973 Rules and Rule 3(b) of 1980 Rules were violative of Article 14 of       )'-
    the Constitution as they arbitrarily denied the benefit of special seniority
H   to Demobilised Officers commissioned to Armed Forces after January 10,
                                         316                                                   •
                     RAMJANAM v. STATEOFU.P.                            317

1968 aed before December 3, 1971. The High Court allowed the petition A
directing the authorities concerned not to give effect to the provisions of
Rule 3(1) of the 1973 Rules and Rule 3(b) of 1980 Rules for excluding the
period from 11.1.1968 to 2.12.1971 in the matter of determination of the
seniority of the respondent and to grant him the benefit of Army Service
while faxing his seniority. Similar orders h~d been passed by the High
Court in other cases also against which State preferred appeals in this
                                                                            B'
Court.

      In appeal to this Court it was contended on behalf of the appellant
that officers commissioned during the period of emergency being a class
by themselves, there was justification to give them a preferential treatment   C
in matter of seniority. But, there was no conceivable reason to extend the
same benefit in matters of seniority to persons who had been commis-
sioned during normal times. The State also supported the stand of the
appellant.

      Allowing the appeals, this Court                                         D

      HELD: 1. The High Court was in error in treating the respondent
who had been commissioned on 6th September, 1970 after the revocation
of emergency, to belong to the same class as those who had been commis-
sioned after November 1, 1962 but before January 10, 1968. The plea that       E
even persons, who joined army service after cessation of foreign aggression
and revocation of emergency, have to be treated like persons, who have
joined army service during emergency, due to foreign aggression, is a futile
plea and should not have been accepted by the High Court. Therefore, the
respondent is not entitled to the benefit of Rule 3(1) of 1973 Rules or Rule
3(b) of 1980 Rules. [325-E-G; 326-A]                                           F
      2. The seniority of an officer in service is determined with reference
to the date of his entry in the service, which will be consistent with the
requirement of Articles 14 and 16 of the Constitution. Of course, if the
circumstances so require, a group of persons can be treated a class
separate from the rest, for any preferential or beneficial treatment while G
faxing their seniority. But whether such group of persons belong to a
special class for any special treatment, in matters of seniority, has to be
decided on objective consideration and on taking into account relevant
factors which can stand the test of Articles 14 and 16 of the Constitution.
Normally, such classification should be by statutory rule or rules framed H
    318                   SUPREME COURT REPORTS                   [1994] 1 S.C.R.

A   under Article 309 of the Constitution. [323-C-E]

          Direct Recruit Class-II Engineering Officers' Association v. State of
    Maharashtra, [1990] 2 S.C.C. 715 and State of West Bengal v. Aghore Nath
    Dey, [1993] 3 S.C.C. 371, referred to.

B         2.1. The framers of the Rules 1973 and 1980, while treating the
    persons, who had been commissioned on or after November 1, 1962 but
    before January 10, 1968 and again on or after December 3, 1971, took into
    account the circumstances and the background io wilich such persons were
    commissioned in Armed Forces i.e. when the nation was faced with foreign
C   aggressions and tbe cry of the time was that persons should join the Armed
    forces to defend the integrity and sovereignty of the nation. It is well-known
    that many persons in such situation are not inclined to join Armed Forces
    and only those with feeling for the honour of the nation rise to such
    occasions. In this background, 'if such persons have been treated as a
D   separate class for extending any benefit in the matter of seniority, none
    can make any grievance and their classification can be upheld even in the
    light of Articles 14 and 16 of the Constitution. [323-G-H; 324-A-B]                   .-4-..

          2.2. Therefore, persons, who joined after the emergency was over i.e.
    after January 10, 1968 and before December 3, 1971, when another emer-
E   gency was imposed in view of the foreign aggression, can not be treated at
    par or on the same level. [324-B-C]

          D_han Singh v. State of Haryana, [1990] Supp~. 3 S.C.R. 423; Union of
    India v. Dr. S. Krishna Murthy, (1990) 1SL.J.67 and Narender Nath Pandey
    v. State of Uttar Pradesh, A.I.R. 1988 S.C. 1648= [1988] 3 S.C.C. 527,
F
    referred to.

          3. In view of the fact that the appellant has entered into Civil Service
    of the State Government before the respondent, it is not in dispute that he
    is affected in the matter of seniority by the impugned judgment. The
G   appellant has a locus standi to _challenge the said judgment, although he
    was not party to the same and the petition filed on his behalf cannot be
    rejected on that ground. [321-G, 322-C]
                                                                                     ,I
          Prabodh Venna v. State of Uttar Pradesh, A.I.R. (1985) S.C.
H   167 = [1984] 4 S.C.C. 251, referred to.
               RAM JANAM v. STATE OF U.P. [N.P. ~INGH, J.)            319

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 354 of A
1994.

     From the Judgment and Order dated 25.4.1990 of the Allahabad
High Court in W.P. No. 7409 of 1986.

     P.P. Rao, S. Markandeya, Ajay Singh, Ms. C. Markandeya, Harbansh       B
Chaturvedi and H.B. Sharma for the Appellants.

         D.V. Sehgal, T.N. Singh, Gorab Banerjee and R.B. Misra for the
State.

     Yogeshwar Prasad, Sunil K. Jain, S.C. Gup~a, D.K. Garg, Dt. B.S.       C
Chauhan, Manoj Swarup, Ms. Lalitha Kaushik and Devendra Singh for the
Respondents.

         The Judgment of the Court was delivered by

         N.P. SINGH, J. Leave granted.                                      D
       1. This appeal has been filed on behalf of the appellant, who belongs
to the Uttar Pradesh State Civil Service, for setting aside the judgment of
the High Court, allowing the writ application filed on b~half of Respondent
No. 2. Vinod Kumar Kharbanda (hereinafter referred to as "the respon- E
dent"), directing not to give effect to the provisions of Rule 3(1) of Uttar
Pradesh Non-Technical (Class-II) Service (Reservation of Vacancies for
Demobilised Officers) Rules, 1973 and Rule 3(b) of Uttar Pradesh Non-
Technical (Class-II/Group 'B') Services (Appointment of Demobilised Of-
ficers) Rules 1980, for exclusion of the period from 11.1.1968 to 2.12.1971,
while determining the seniority of the said respondent in the State Civil F
Service.

      2. In exercise of the power under the proviso to Article 309 of the
Constitution, the Uttar Pradesh Non-Technical (Class-II) Services (Reser-
vation of Vacancies for the Demobilised Officers) Rules, 1968 were
framed. These Rules were to remain in force for a period of five years from G
the date of their commencement. Rule 2(1) provided that 20% of the
permanent vacancies in a Non-Technical (Class-II) Services to be filled up
by direct recruitment through competitive examination in any year, shall be
reserved for being filled in "by the Emergency Commissioned Officers and
the Short Service Commissioned Officers of the Armed Forces of the H
    320                  SUPREME COURT REPORTS                  [1994] 1 S.C.R.

A   Union, who were commissioned on or after November 1, 1962, and who
    are released at any time thereafter." Rule 4 provided the manner in which
    the seniority of candidates, who were appointed against the afore~aid
    reserved vacancies, was to be determined.

          3. The aforesaid Rules were substituted by the Uttar Pradesh Non-
B   Technical (Class-II) Services (Reservation of Vacancies for Demobilised
    Officers) Rules, 1973. These Rules were also to remain in force for a
    period of five years from the date of their commencement. Rule 3 reserved
    10% of the permanent vacancies in all Non-!echnical (Class-II) Services,
    to be filled substantively by direct recruitment through competitive ex-
c   amination in any year for "the Disabled Defence Service Officers, Emer-
    gency Commissioned Officers and the Short Service Commissioned
    Officers of the Armed Forces of the Union, who were. commissioned on
    or after November 1, 1962, but before January 10, 1968, and again. on or
    after Decembr,r 3, 1971 and released at any time thereafter." Regarding the
D   seniority of candidates appointed against aforesaid reserved vacancies, it
    was said in Rule 6 that seniority "shall be determined on the assumption
    that they entered the service concerned at their second opportunity, of
    competing for recruitment, and they shall be assigned the same year of
    allotment as successful candidates of the relevant competitive examination."

E         4. The aforesaid Rules were again substituted by the Uttar Pradesh
    Non-Technical (Class-II/Group 'B') Services (Appointment of
    Demobilised Officers) Rules, 1980, which came into force with effect from
    August 6, 1978. In Rule 3(b) "Demobilised Officer" was defined to mean
    Disabled Defence Service Officer, Emergency Commissioned Officer and
F   the Short Service Commissioned Officer, of the Armed Forces of the
    Union who was commissioned on or after November 1, 1962 but before
    January 10, 1968 or on or after December 3, 1971 and released at any time
    thereafter. In Rule 5 it was said that seniority of such persons shall be
    determined on the assumption that they entered the service concerned at
    the second opportunity of competing for recruitment, and they shall be
G   assigned the same year of allotment, as to successful candidates of the·
    relevant competitive examination.

         5. The respondent filed the connected writ application alleging that
    he had been recruited for Short Service Commission in the Indian Army
H   on 6th September, 1970 and was released from army ·on 3rd December,
             RAMJANAM v. STATEOFU.P. [N.P.SINGH,J.]                       321

1975. Later he was seleated by the Public Service Commission and joined A
State Civil Service on 16th July, 1982. According to him, Rule 3(1) of the
Uttar Pradesh Non-Technical (Class-II) Services (Reservation of Vacan-
cies for the Demobilised Officers) Rules, 1973 as well as Rule 3(b) of the
Uttar Pradesh Non-Technical (Class-II/Group 'B') Services (Appointment
of Demobilised Officers) Rules, 1980, were discriminatory in nature and B
violative of Article 14 of the Constitution, inasmuch as they provide for
special seniority for Disabled Defence Service Officers and the Short
Service Commissioned Officers of the Armed Forces, who were commis-
sioned on or after November 1, 1962 but before January 10, 1968 and again
those who were commissioned on or after December 3, 1971, but deny the
same to persons commissioned after ·January 10, 1968 and before Decem-           c
ber 3, 1971, without there being any rational basis for the same. According
to the said respondent, there was no justification to exclude the same
benefit to persons, who had been commissioned to the Armed Forces after
January 10, 1968 and before December 3, 1971, because they also belong
to the same class.
                                                                                 D
      6. The writ application of the respondent was allowed on a finding
that the exclusion of the period from 11.1.1968 to 2.12.1971 was wholly
arbitrary and discriminatory in nature. A direction was given not to give
effect to the provisions of Rule 3(1) of the 1973-Rules and Rule 3(b) of
1980-Rules for excluding the period from 11.1.1968 to 2.12.1971 in the           E
matter of determination of the seniority of the respondent in the State Civil
Service and to grant the benefit of Army Servic~ to the said respondent
while fixing his seniority in the State Civil Service.

      7. The appellant, admittedly, was not impleaded as a party to the said     p
writ application, but as he is directly affected like many other officers, who
had entered into the State Civil Service before the respondent, filed the
connected Special Leave Petition, challenging the validity of the judgment
aforesaid. In view of the fact that the appellant had entered into Civil
Service of the State Governmer..t before the respondent, it is not in dispute
that he is affected in the matter of seniority by the impugned judgment. It      G
was held by this Court in the case of Prabodh Varma v. State of Uttar
Pradesh, A.I.R. 1985 S.C. 167 = [1984) 4 S.C.C. 251, that a writ application
in which the necessary parties likely to be affected have not been im-
pleaded, the High Court should not proceed with such writ application,
without imisting, on such persons or some of them in representative              H
    322                   SUPREME COURT REPORTS                    [1994] 1 S.C.R.

A   capacity being made respondents. It was further ·held that if petitioner
    refuses to join them, the High Court ought to dismiss the petition for
    non-rejoinder of necessary parties. Admittedly, none was impleaded even
    in a representative capacity, But, it can be urged on behalf of the respon-
    dent that he had not sought any relief against any individual. He had sought
    the intervention of the High Court to declare Rule 3(1) of 1973-Rules and
B   Rule 3(b) of 1980-Rules as ultra vires, so far they made applicable the
    benefit of those Rules to only specified class of persons and restricted to
    others who were similarly situated. As such respondent was not required
    to implead private respondent, who might be affected by the verdict of the
    Court. Even if this stand is accepted, can it be said that persons who have       -..,._...
                                                                                        (
C   been affected by the judgment of the High Court in the connected writ
    application, cannot challenge the correctness thereof either by filing a
    Review Petition before the High Court or by filing a Special Leave Petition
    before this Court? According to us, the answer is in negative. The appellant
          a
    has locus standi to challenge the said judgment, although he was not party
D   to the same and the Special Leave Petition filed on his behalf cannot be
    rejected on that ground. The delay in filing the Special Leave Petition has
    al.so been fully explained in the facts and circumstances of the case, which
    is condoned.

          8. On behalf of the appellant, it was pointed out that as it is, with the
E   reservation for and appointment of demobilised officers who had been
    commissioned on or after November 1, 1962 but before January 10, 1968
    and those who had been commissioned after Deeember 3, 1971, during the
    periods of emergency, the seniority of the members of the State Civil
    Services has been affected, but such demobilised officers being a class by
F   themselves, there was justification to give them a preferential treatment in
    matter of seniority. But, there cannot be any conceivable reason to extend
    the same benefit in matters of seniority to persons who had been commis-
    sioned during normal times i.e. after January 10, 1968 when the emergency
    had been lifted and before December 3, 1971 when another emergency was
    imposed. The State also supported the stand of the appellant and pur-
G   ported to justify as to how Rule 3(1) of 1973-Rules and Rule 3(b) of the
    1980-Rules covered a class of persons, who cannot be treated at par with
    those appointed after January 10, 1968 and before December 3, 1971.

          9. From time to time controversy regarding inter se seniority is raised
H between persons recruited from different sources to the same service. In
                   RAM JANAM v. STATE OF U.P. [N.P. SINGH, J.]                  323

      past, notional seniority used to be given to one group of officers; purporting   A
      to mitigate their hardship or to rectify any alleged wrong done to them in
      the process of recruitment or promotion. Ultimately, it was realised that if
      liberty is given to fix seniority of an officer or group of officers belonging
      to a particular category with reference to a notional date, that will l<?ad to
      great uncertainty in public service. The date of entry into a particular         B
      service was considered to be the most safe rule to follow while determining
      the inter se seniority between one officer or the other or bet\veen one group
      of officers and the other recruited from the different sources. After refer-
      ring to different judgment of this Court, a Constitution Bench in the case
      of Direct Recruit Class-II Engineering Officer' Association v. State of
      Maharashtra, [1990] 2 S.C.C. 715, came to the same conclusion. The same          C
      has been reiterated in the case of State of West Bengal v. Aghore Nath Dey,
      [1993] 3 S.C.C. 371. It is now almost settled that seniority of an officer in
      service is determined with reference to the date of his entry in the service,
      which will be consistent with the requirement of Articles 14 and 16 of the
      Constitution. Of course, if the circumstances so require a group of persons,     D
      can be treated a class separate from the rest, for any preferential or
      beneficial treatment while fixing their seniority. But, whether such group
      of persons belong to a special class for any special treatment, in matters
      of seniority, has to be decided on objective consideration and on taking
      into account relevant factors which can stand the test of Articles 14 and 16
      of the Constitution. Normally, such classification should be by statutory        E
      rule or rules framed under Article 309 of the Constitution. The far-
      reaching implication of such rules need not be impressed, because they
      purport to affect the seniority of persons, who are already in service. For
      promotional posts, generally the rule regarding merit and ability or
1'.   seniority-cum-merit is followed in most of the services. As such the             F
      seniority of an employee in the later case is material and relevant to further
      his career, which can be affected by factors, which can be held to be
      reasonable and rational.

             10. It appears that the framers of the Rules 1973 and 1980, while
      treating the persons, who had been commissioned on or after November G
      1, 1.962 but before January 10, 1968 and again on or after December 3,
      1971, took into account the circumstances and the background in which
      such persons were .commissioned in Armed Forces i.e. ·.when t~~ nation was
      faced with foreign aggressions and the cry of the time was that persons
      should join the Armed Forces to defend the integrity and sovereignty of H
                                                                                     ,..._   ..

    324                   SUPREME COURT REPORTS                   [1994) 1 S.C.R.

A   the nation. It is well-known that many persons in such situation are not
    inclined to join Armed Forces and only those with felling for the honour
    of the nation rise to such occasions. In this background, if such persons
    have been treated as a separate class for extending any benefit in the matter
    of seniority, none can make any grievance and their classification can be
    upheld even in the light of Articles 14 and 16 of the Constitution.
B
          11. But, we fail to understand as to how persons. who joined after
    the emergency was over i.e. after January 10, 1968 and before December
    3, 1971, when another emergency w::is imposed in view of the foreign
    aggression, can be treated at par or on the same level. It need not be
C   pointed out that such persons were in look out of a career and joined the
    Armed Forces of their own volition. It can be presumed that they were
    prepared for the normal risk in the service of the Armed Forces. Those
    who joined Armed Forces after November 1, 1962 or December 3, 1971,
    not only joined Armed Forces but joined a war which was being fought by
D   the nation. If the benefits extended to such persons, who were commis-
    sioned during national emergencies, are extended even to the members of
    the Armed Forces who joined during normal times, members of the Civil
    Services can make legitimate grievance that their seniority is being affected
    by persons recruited to the service after they had entered in the said service
    without there being any rational basis for the same.
E
          12. In the case of Dhan Singh v. State of Haryana, [1990) Supp. 3
    S.C.R. 423, this Court considered as to whether persons, commissioned
    before November 1, 1962 were entitled to add the period of army service,
    which admittedly included their service during the period of emergency,
F   was answered in the negative. It was held that the relevant rule only
    extended the benefit of army service, to persons who joined army on or
    after November 1, 1962 after declaration of emergency, because such
    persons beloneed to a separate class for preferential treatment. In the case
    of Union of India v. Dr. S. Krishna Murthy, (1990) 1 S.L.J. 67, it was said
    that persons, who had joined after the declaration of emergency, had
    voluntarily offered their services for the defence of the country during the
    period of emergency. They belonged to a separate class ;rod there was no
    question of discrimination in giving any benefit in matters of seniority by
    the rules which were under challenge. The Rules, with which we are
    concerned, were considered by this Court in the case of Narender Nath
H   Pandey v. State of Uttar Pradesh, A.LR. 1988 S.C. 1648 = [1988) 3 S.C.C.
                  RAMJANAM v. STATEOFU.P.[N.P.SINGH,J.]                        325

    527, and it was held that benefits by the Rules aforesaid had been given to A
~   persons, who were either Emergency Commissioned Officers or Short
    Service Commissioned Officers of the Armed Forces of the Union of India,
    who had been commissioned on or after November 1, 1962 during the
    lndo-Chinese War and were demobilised from Armed Forces in or about
    1968; such persons had rendered services to the country during the emer-
    gency when the nation's security was in peril due to external aggression.
                                                                                B

           13. Can it be said that the persons who had joined army after the
     declaration of emergency due to foreign aggression and those who joined
    after the war came to an end, stand on the same footing? Those who joined
    Army after revocation of emergency joined army as a career. It is well-           C
    known that many persons, who joined army service during the foreign
    aggression, could have opted for other career or service. But the nation
    itself being under peril, impelled by the spirit to serve the nation, they
    opted for joining Army where then risk was writ large. No one can dispute
    that such persons formed a class by themselves and by Rules aforesaid an          D
    attempt has been made to compensate those who returned from war if they
    compete in different services. According to us, the plea that even persons,
    who joined army service after cessation of foreign aggression and revoca-
    tion of emergency, have to be treated like persons, who have joined army
    service during emergency, due to foreign aggression, is a futile plea and
    should not have been accepted by the High Court. It need not be impressed         E
    that whenever any particular period spent in any other service by a person
    is added to the service to which such person joins later, it is bound to effect
    the seniority of persons who have already entered in the service. As such
    any period of earlier service should be taken into account for determination
    of seniority in the later service only for some very compelling reasons,          F
    which stand the test of reasonableness and on examination can be held to
    be free from arbitrariness.

          14. The High Court was in error in treating the respondent, who had
    been commissioned on 6th September, 1970 after the revocation of emer- ·
    gency, to belong to the same class as those who had been commissioned G
    after November 1, 1962 but before January 10, 1968. The High Court was
    not justified in directing, not to give effect to Rule 3(1) of 1973-Rules and
    Rule 3(b) of 1980-Rules, so far respondent was concerned, for excluding
    the period from 11.1.1968 to 2.12.1971 while determining the seniority of
    the said respondent.                                                          H
    326                    SUPREME COURT REPORTS                 [1994] 1 S.C.R.

A          15. Accordingly, this appeal is allowed. The impugned.judgment of
    the High Court is set aside. The respondent is held to be net entitled to
    the benefit of Rule 3(1) of 1973-Rules or Rule 3(b) of 1980-Rules. If, in
    the light of the judgment of the High Court, the seniority of respondent
    has been fixed, the State Government shall refix the seniority, in view of
    the judgment of this Court. In the facts and circumstances of the case, there
B   will be no order as to costs.

          Civil Appeal Nos. 355-59/94.

          Leave granted.

C          16. These appeals have been filed on behalf of the State of Uttar
    Pradesh for setting aside the judgments and orders passed by the High
    Court in different writ applications filed on behalf of the respondents of
    the appeals, for direction similar to the direction given by the High Court
    m favour of the aforesaid Shri Vinod Kumar Kharbanda. Some of the writ
D   applications were allowed in terms of the Judgment of the High Court, in
    the case of Shri Kharbanda. The other writ applications were disposed of
    directing the State Government to consider the representations filed by         ~
    writ petitioners in the light of the judgment of the High Court Court in the
    case of Shri Kharbanda. As we have set aside the Judgment of the High
    Court in the case of Shri Kharbanda, these appeals are allowed and
    different judgments and orders of the High Court are set-aside.

    T.N.A.                                                     Appeals allowed.