RAM SEWAK PRASADversusSTATE OF U.P. AND ORS

A                          RAM SEWAK PRASAD
                                   v.
                         STATE OF U.P. AND ORS.

                                 JULY 11, 1991
                                                                                   ,,
8
           [KULDIP SINGH AND M. FATHIMA BEEVI, JJ.]

          Uttar Pradesh Subordinate Excise Service Rules, 1967-Rule 3(ix)
                                                                                        t
    and 5 and Uttar Pradesh Subordinate Excise Service Rules, 1983-Rule
    3(g), 3(j), 5 and 21( ])-Interpretation of-Excise Inspector-Appoin-
    ted on ad hoc basis-Held entitled to claim seniority and promotion
c   vis-a-vis those who were appointed later in point of time.

         The petitioner was appointed as Excise Sub-Inspector in February
    1964 in the State of U.P. and was later promoted as Excise Inspector on
    ad hoc basis on February 24, 1972. He was confmned as Excise Sub-
    Inspector w.e.r. April 1, 1%7. Though promoted on ad hoc basis, the
D   petitioner bas continuously been working as Excise Inspector since
    February 24, 1972. Ragbubir Singh and Ram Dban, respondents are
    direct recruits to the post of Excise Inspector and tbay bad joined the
    cadre later in point of time than the petitioner i.e. after 24.2.1972. They
    were promoted to the post of Excise Superintendent on 29.9.1983 and
    the petitioner was Ignored. Being aggrieved the petitioner bas filed this
E   petition under Article 32 of the Constitution.

           According to the State and other respondents, the petitioner's
    promotion to the post of Excise Inspector being on ad hoc basis was
    against the 1%7 rules, be continues to be an ad hoc appointed and as
    such is not a member of the Excise Inspectors service constituted under
F   the rul2s. His nanie bas not been shown In the seniority list of Excise        I
    Inspectors. According to them bis case has rightly not been considered
    for further promotion. On the other band, It is contended on behalf or
    the petitioner that the 1%7 Rules in as much as they confine the channel
    of promotion to Tari Inspectors and Clerks were wholly arbitrary and
    as such violative of Articles 14 and 16 of the Constitution. It is submit-
G   ted on bis behalf that the petitioner is, in any case, entitled to be pro-
    moted substantively to the cadre of Excise Inspectors under 1983 rules
    and be is also entitled to fixation of seniority by counting bis entire        ,
    service as Excise Inspector from 1972 onwards. Respondents concede
    that the petitioner can be appointed under 1983 rules, but contend that
    be is not entitled to the benefit of past service for purposes of seniority.
H


                                        884
                           RAM SEWAK v, STATE OF U.P.                         885

          Allowing the writ petition this Court
                                                                                     A
          HELD: When the 1967 rules were enforced on May 24, 1967 there
    was in existence a permanent cadre of Excise Suh-Inspectors. The
    nature of duties of both the cadres were similar. The Excise Inspectors,
    on molasses duty of the ranges, used to supervise the work of Excise
    Sub-Inspectors under them. The Excise Suh-Inspectors were thus                   B
    natural contenders for the post of Inspectors. There was no justification
    whatsoever with the framers of the 1967 rules to have kept the Excise
    Sub-Inspectors out of the channel of promotion to the post of Excise
    Inspectors. Prime facie there is no escape from the conclusion that the
    Excise Sub-Inspectors were dealt with in an arbitrary manner by tl\e
    framers of 1967 rules. [890H-89JB]

          It is not disputed that under the 1983 rules, the petitioner is
    eligible to be promoted and appointed as Excise Inspector. [891 C-D I

          The 1983 rules came into force on March 24, 1983. There is
    nothing on the record to show as to why the petitioner was not con-              D
    sidered for promotion under the 1983 rules till today. Inaction on the
    part of the State Government is wholly unjustified. The petitioner has
    been made to suffer for no fault of his. He has been serving the State Govern-
    ment as Excise Inspector since February 24, 1972 satisfactorily. [891E]

           Rule 2 l(i) of the 1983 rules specifically permits substantive E
    appointment to the cadre of Excise Inspectors with back date. In all
    probability the provision of back date appointment was made in the
~    1983 rules to do justice to persons like the petitioner. The petitioner is
    eligible under the rules to be appointed as Excise Inspector by way of .
    promotion. Accordingly the Court directed that the petitioner shall be
    deemed to be appointed by way of promotion as substantive Excise F
    Inspector under the 1983 rules with effect from February 24, 1972. The
    petitioner shall be entitled to the benefit of his entire period of service as
    Excise Inspector from February 24, 1972 towards fixation of bis senio-
    rity in the cadre of Excise Inspector. The petitioner shall be considered
    for promotion to the post of Excise Superintendent from a date earlier
    than the date when respondents Ram Dhan and Raghubir Singh were G
    promoted to the said post. The petitioner shall also be entitled to be
    considered to the post of Assistant Excise Commissioner in accordance
    with the rules from a. date earlier than the date when any of bis juniors
    were promoted to the said post. [891 G, 892B-E J

          None of the respondents who have already been promoted to the              H
    886                   SUPREME COURT REPORTS               [1991) 2 S.C.R.

A   higher rank of Excise Superintendents or Assistant Excise Commissio-
    ners be reverted to accommodate the petitioner or any other person
    similarly situated. The State Government shall create additional posts
    in the cadre of Excise Superintendents and Assistant Excise Commis-
                                                                                ~
                                                                                    t
    sioners to accommodate the petitioner and other similar persons, if
    necessary. [892F]
B
         Masood Akhtar Khan & Ors. v. State of Madhya Pradesh, [1990]
    4 S.C.C. 24; Direct recruits Class-II Engineering Officers Associati'an
  .v. State.of Maharashtra & Ors., [1990] 2 s.c.c. 715; P. Mahendran &
   Ors. etc. v. State of Karnataka & Ors. etc., [1990] 1S.C.C.411; State of
   Pu._njab v. Jagdip Singh & Ors., [1%4] 4 S.C.R. 964; Krishena Kumar
C & Ors. v. Union of India & Ors., [1990] 4 S.C.C. 207; A.K. Bhatnagar
   & Ors. v. Union of India & Ors., [1990] 2 Scale 949; Baleshwar Dass &
   Ors. etc. v. State of U.P. & Ors., [1981] 1 S.C.R. 449; Narender
   Chadha & Ors. v. Union of India & Ors., [1986] 1 S.C.R. 211; Rejen-
   dera Prasad Dhasmane v. Union of India & Ors., [1988] 3 J.T. 190 and
   Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., [1990] 4
D J.T. 211, referred to.

          ORIGIJ:'AL JURISDICTION: Writ Petition (Civil) No. 13704
    of 1983.

          (Under Article 32 of the (;onstitution of India).
E
          P.N. Lekhi and M.K. Garg for the Petitioner.

          Prithvi Raj. P.P. Rao, Govind Mukhoty, Satish Chander,                ~
    Raju Ramachandran, Mrs. S. Dikshit, A.K. Sangal, P.K. Chakra-
    borty. Ms. Sandhya Goswami and Y.C. Maheshwari for the Res-
F   ponJents.

         K.R. Gupta. Smt. Nanita Sharma, R.C. Gubrele, Vivek Sharma
    anJ O.P. Sharma for the Intervener.

          The Judgment of the Court was delivered by
G
         KULDIP SINGH, J. Ram Sewak Prasad, the petitioner before
    us, was appointed as Excise Sub-Inspector, in the State of Uttar
    Pradesh in February, 1964 and was promoted to the post of Excise
    Inspector on ad hoc basis on February 24, 1972. He was confirmed as
    Excise Sub-Inspector by an order dated December 2, 1972 with effect
H   from April 1, 1967. Though promoted on ad hoc basis the petitioner
           RAM SEWAK v. STATE OF U.P. [KULDIP SINGH, J.]          887

has continuously been working as Excise Inspector since February 24,
                                                                         A
1972.

      Raghubir Singh and Ram Ohan, respondents are direct recruits
to the post of Excise Inspector. They joined as such on March 29, 1972
and May 14, 1972 respectively. They were promoted to the post of
Excise Superintendent by an order dated September 29, 1983. It is not B
disputed that the petitioner was not considered for promotion along-
with the respondents or at any time thereafter. Even his name was not
shown in the seniority list of Excise Inspectors circulated from time to
time. The respondents, including the State Government, have taken
the stand that the petitioner's promotion to the post of Excise
Inspector was against the rules, jie continues to be an ad hoc appointee C
and is not a member of the Excise Inspectors Service constituted under
the rules. For that reason he is neither been shown in the seniority list
of Excise Inspectors nor considered for promotion to the post of
Excise Superintendent.

      It is necessary to examine the relevant statutory rules regulating D
recruitment and conditions of service of the Excise Inspectors. Rule
3(ix) and 5 of the Uttar Pradesh Subordinate Excise Service Rules,
1967 (hereinafter called '1967 rules') are as under:

           "3(ix). "Member of the service" means a person appointed
           in a substantive capacity under the provisions of these E
           rules, or of rules in force previous to the enforcement of
           these rules to a post in the cadre of the service"

           "5. Sources of recruitment-Recruitment to the service shall
           be made-
                                                                         F
                 (a) by direct recruitment of candidates, on the result
                 of a combined competitive examinations conducted
                 by the Commission, who having been selected in the
                 prescribed manner for undergoing practical training
                 have completed the course of training and passed the
                 departmental examination prescribed in rule 23:        .G

                       Provided that no candidate shall be allowed to
                 avail of more than three chances for appearing at the
                 competitive examination;

                 (b) by promotion of permanent clerks of the office at   H
    888                    SUPREME COURT REPORTS          (1991] 2 S.C.R.

                     the Headquarters of the Excise Commissioner and
A                    other regional and Subordinate Excise Offices of As-
                     sistant Excise Commissioners and Superintendents of
                     Excise in Uttar Pradesh; and

                     (c) by promotion of permanent Tari Supervisors
B
         The 1967 rules were superseded by the Uttar Pradesh Subordi-
    nate Excise Service Rules, 1983 (hereinafter called 1983 rules) which
    came into force on March 24, 1983. Rule 3(g), 3(j), 5 and 21(1) of the
    1983 rules are reproduced hereinafter:
                                                                              ..
               "3(g). "Member of Service" means a person substantively
c              appointed under or the rules or orders in force prior to the
               commencement of these rules to a post in the cadre of the
               service".

               "3(j). "Substantive appointment" means an appointment,
D              not being an ad-hoc appointment, on a post in the cadre of
               the service, made after selection in accordance with the       '
               rules and, if there are no rules, in accordance with the
               procedure prescribed for the time being by executive in-
               structions, issued by the Government."

E                    Sources of Recruitment. "5. Recruitment to the
                                             various categories of
                                             posts in this service shall
                                             be made from the follow-
                                             ing sources:

F                                              (A) EXCISE INSPECTOR

               ( 1) 90% by direct recruitment on the result of a combined
               competitive examination conducted by the Commission.

               (2) 10% by promotion from amongst the permanent sub-
G              Excise Inspectors.

               "Rule 21(1) Except as hereinafter provided, the seniority
               of persons in any category of post shall be determined from
               the date of the order of substantive appointment and if two
               or more persons are appointed together, by the order in
H              which their names are arranged in the appointed order;
              RAM SEWAK v. STATE OF U.P. [KULDIP SINGH,!.]            889

                     Provided that if the appointment order specifies a      A
               particular back date with the effect from which a person is
               substantively appointed, that date, will be deemed to be
               the date of order of substantive appointment and, in other
               case it will mean the date of issue of the order;"

          Mr. Satish Chandra, learned se.nior advocate, appearing for B
    some of the respondents who are direct recruits of 1982/83 has con-
    tended that the 1967 rules were holding the field when the petitioner
    was promoted as Excise Inspector on ad hoc basis. According to him
    only clerks and Tari Supervisors could be considered for promoti~n to
    the post of Excise Inspector under rule 5 of the 1967 rules and the
    Excise Sub-Inspectors were not eligible. The petitioner's promotion C
    being in violation of the 1967 rules, he was not a member of t~e service.
    and as such was rightly not shown in the seniority list of Excise Ins-
    pectors. He, however, accepts the position that the petitioner can be
    considered for promotion to the post of Excise Inspector under the
    1983 rules and would become member of the service from the date of
    promotion under the said rules. Mr. Satish Chandra finally contended D
    that the appointment of the petitioner from 1972 to 1983 being viola-
    tive of 1967 rules, the benefit of the said service cannot be given to the
    petitioner towards seniority in the cadre of Excise Inspectors. In sup-
    port of his arguments Mr. Salish Chandra relied upcn the judgments of
    this Court in Masood Akhtar Khan and Others v. State of Madhya
    Pradesh and Others, [1990] 4 S.C.C. 24 and Direct recruits class-II E
    Engineering Officers Association v. State of Maharashtra and Others,
    [1990] 2 S.C.C. 715. Mr. Govind Mukhoty, Mr. P.P. Rao and Mr.
j
    O.P. Sharma, learned senior advocates appearing for various respon-
    dents reiterated, with different flavour, the arguments advanced by
    Mr. Satish Chandra. They further cited P. Mahendran and Ors etc. v.
    Stat~ of Karnataka and Ors. etc., [1990] 1 SCC 411; State of Punjab v. F
    Jagdip Singh and Ors., [1964] 4 SCR 964; Krishena Kumar and Ors. v.
    Union of India and Ors., [1990] 4 SCC 207 and A.K. Bhatnagar and
    Ors. v. Union of India and Ors., [1990] 2 Scale 949. Mr. Prithviraj,
    learned senior advocate appearing for the State of Uttar Pradesh
    stated that it may be possible to absorb the petitioner in the cadre of
    Excise Inspectors from the date of enforcement of the 1983 rules but G
    the benefit of serviCe rendered by him as Excise Inspector prior to that
    date cannot be given to him.

          Mr. P.N. Lekhi, learned senior advocate appearing for the
    petitioner vehemently argued that the petitioner was promoted· in
    'public interest' as Excise Inspector in the year 1972 and since then he H
    890                    SUPREME COURT REPORTS             I1991) 2 S.C.R.
    has been working as such continuously. He is being paid the same
A
    salary for doing the same work as is being done by the directly
    recruited Excise Inspectors. There can be no justifiable reason to treat
    the petitioner as an ad hoc Excise Inspector even after working as such
    for almost two decades. According to him the 1967 rules which con-
    fined the channel of promotion to Tari Inspectors and Clerks were
8   wholly arbitrary and as such violative of Articles 14 and 16 of the
    Constitution of India. The Excise Sub-Inspectors are at a lower-rung
    in the same hierarchy of service to which Excise Inspectors belong.
    The Sub-Inspectors perform similar duties of less responsibility. Mr.
    Lekhi further contended that providing avenue of promotion to Tari
    Inspectors and Clerks who had no similarity or service-link with the
    cadre of Excise Inspectors and deprivi~g the same to the Excise Sub-
c   Inspectors render the 1967 rules arbitrary and discriminatory. He
    relied upon Bafeshwar Dass and Ors. etc. v. State of U.P. and Ors.,
    [ 1981] 1 SCR 449; Narender Chadha and Ors. v. Union of India and
    Ors., [1986) 1SCR211; Rajendera Parsad Dhasmane v. Union of India
    and Ors., [1988) 3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc. v.
D   State of U.P. and Ors., [1990] 4 J.T: 211. Mr. Lekhi finally submitted
    that the petitioner is, in any case, entitled to be promoted substan-
    tively to the cadre of Excise Inspectors under the 1983 rules and he is
    entitled to fixation of seniority by counting his entire service as Excise
    Inspector from 1972 onwards.

E         It is not necessary to go into the judgments cited by the learned
    counsel for the parties. The judgments are on the peculiar facts of
    these cases and do not render much assistance to resolve the con-
    troversy before us.

          The 1967 rules provided recruitment to the cadre of Excise             '·
F   Inspectors by way of direct recruitment and by promotion. Recruit-
    ment by promotion was only confined to permanent clerks in the office
    of Excise Commissioner and Tari Supervisors. The Excise Sub-
    Inspectors were not eligible. On the plain interpretation of 1967 rules
    Mr. Salish Chandra is justified to contend that the petitioner was not
    eligible for promotion to the post of Excise Inspector and as such he
G   could not be considered to be member of the Uttar Pradesh Subordi-            '
    nate Excise Service as constituted under the 1967 rules. On the other
    hand there is plausibility in the argument of Mr. P.N. Lekhi that rule 5
    of the 1967 rules which denies avenue of promotion to the Excise
    Sub-Inspectors is arbitrary and discriminatory. When the 1967 rules
    were enforced on May 24, 1967 there was in existence a permanent
H   cadre of Excise Sub-Inspectors. The nature of duties of both the cadres
          RAM SEWAK v, STATE OF U.P. IKULDIP SINGH. J.I              891
                                                                     ,
were similar. The Excise Inspectors, on molasses duty of the ranges,
                                                                            A
used to supervise the work of Excise Sub-Inspectors under them. The
Excise Sub-Inspectors were thus natural contenders for the post of
Inspectors. There was no justification whatsoever with the framers of
the 1967 rules to have kept the Excise Sub-Inspectors out of the chan-
nel of promotion to the post of Excise Inspectors. Prima facie there is
no escape from the conclusion that the Excise Sub-Inspectors were           B
dealt with in an arbitrary manner by the framers of 1967 rules. How-
ever, the view we propose to take on the interpretation of 1983 rules it
is not necessary for us to deal with the respective arguments of the
learned counsel for the parties regarding the 1967 rules.

      Rule 5 of the 1983 rules provides recruitment to the cadre of
Excise Inspectors from two sources, 90% by direct recruitment and           c
 10% by promotion from amongst the permanent Excise Sub-Inspec-
tors. It is not disputed that under the 1983 rules the petitioner is
eligible to be promoted and appointed as Excise Inspector. In the writ
petition the petitioner has specifically pleaded that the service record
of the petitioner is unblemished and he is holding the post of Excise       0
Inspector within the 10% promotion quota provided for the per-
manent Excise Sub-Inspectors. The State Government in its counter
has not denied these averments. The 1983 rules came into force on
March 24, 1983. There is nothing on the record to show as to why the
petitioner was not considered for promotion under the 1983 rules till
today. Inaction on the part of the State Government is wholly               E
unjustified. The petitioner has been made to suffer for no fault of his.
He has been serving the State Government as Excise Inspector since
February 24, 1972 satisfactorily. Least the State Government could do
was to consider the petitioner for promotion under the 1983 rules.
Mr. Prithviraj, learned counsel for the State of Uttar Pradesh has
however fairly stated that the State Government is willing to promote       F
the petitioner to the cadre of Excise Inspectors under the 1983 rules
effect from the date of enforcement of the said rules.

      Rule 21( !) of the 1983 rules provides that the seniority of a
person in any category of post shall be determined from the date of the
order of substantive appointment. First proviso provides that if the        G
appointment order specifies a particular back date with effect from
which a person is substantively appointed then the said back-date shall
be deemed to be the date of order of substantive appointment. It is
thus obvious that rule 21( I) of the 1983 rules specifically permits sub-
stantive appointment to the cadre of Excise Inspectors with back
date. The framers of the 1983 rules were conscious that the cadre of        H
    89~                    SUPREME COURT REPORTS             I 1991] 2 S.C.R.

A   Excise Sub-Inspectors was in existence from 1964 onwards and some of
    them were promoted to the post of Excise Inspectors much earlier to
    the enforcement of the 1983 rules. In all probability the provision of
    back-date appointment was made in the 1983 rules to do justice to
    persons like the petitioner. The petitioner is eligible under the rules to
    be appointed as Excise Inspector by way of promotion. It is not dis-
B   puted that the petitioner was appointed as Excise Inspector on
    February 24, 1972 and he has been actually working in the said post
    continuously from that date and has been drawing the salary of the
    post of Excise Inspector. This is a fit case where the petitioner should
    be appointed as Excise Inspector under the 1983 rules by giving him
    back date appointment with effect from February 24, 1972.
c
          We, therefore, hold that the petitioner shall be deemed to be
    appointed by way of promotion as substantive Excise Inspector under
    the 1983 rules with effect from February 24, 1972. The petitioner shall
    be entitled to the benefit of his entire period of service as Excise
    Inspector from February 24, 1972 towards fixation of his seniority in
D   the cadre of Excise Inspector. We fµrther direct that the petitioner
    shall be considered for promotion to the post of Excise Superintendent
    from a date earlier than the date when respondents Ram Ohan and
    Raghubir Singh were promoted to the said post. The petitioner shall
    also be entitled to be considered to the post of Assistant Excise Com-
    missioner in accordance with the rules from a date earlier than the date
E   when any of his juniors were promoted to the said post.

          We make it clear that none of the respondents who have already
    been promoted to the higher rank of Excise Superintendents or
    Assistant Excise Commissioners be reverted to accommodate the
    petitioner or any other person similarly situated. The State Govern-
F   ment shall create additional posts in the cadre of Excise Superinten-
    dents and Assistant Excise Commissioners to accommodate the
    petitioner and other similar persons, if necessary.

         The writ petition is allowed with costs in the above terms. We
    quantify the costs as Rs.10,000 to be paid by the State of Uttar
G   Pradesh.

    Y.Lal.                                                  Petition allowed.