Holding

The Court held that the Government may, under the 1955 Rules, relax the examination requirement and restore seniority to officials deprived of chances due to the Government's failure to hold the exam, and such relaxation is consistent with the scheme of the 1962 Rules and does not contravene Articles 14 and 16.

Summary

The respondents, senior officers in the Maharashtra Subordinate Secretariat Service, challenged a revised seniority list that placed them below juniors who had passed the departmental examination earlier. The promotion to Superintendent required passing a yearly exam; failure to pass within a stipulated period resulted in loss of seniority under the 1962 Rules. The Government failed to hold the exam in 1968-1970, depriving many officials of chances to appear, but did not extend the period or promote them, instead promoting juniors who had qualified. The High Court ordered the seniority list be recast, but the State appealed. The Supreme Court held that the 1955 Rules empower the Government to relax service conditions to avoid hardship, and that the circular of 1962 could not override this statutory power. Consequently, the Government could restore seniority to "late passing" candidates without violating Articles 14 and 16 of the Constitution. The Court allowed the appeals and dismissed the writ petitions.

Issues considered

Whether the loss of seniority under Rule 2 of the 1962 Rules is operable when the Government fails to hold the departmental examination as required.
Whether the Government, under the 1955 Rules, may relax the condition of passing the examination and restore seniority to candidates without a specific order.
Whether the circular dated 15 January 1962 lawfully restricts the Government's power to relax service conditions relating to promotion.
Whether the revision of the seniority list violates Articles 14 and 16 of the Constitution.
Whether "late passing" candidates are entitled to seniority despite not having passed the examination within the prescribed period.

Legislation cited

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

Subjects

departmental examinationpromotionseniorityservice rulesconstitutional lawArticle 14Article 16relaxation of service conditionslate passingstatutory interpretation

Judgment

~};,-, STATE OF MAHARASHTRA
A
v.
JAGANNATif ACHYUT KARANDIKAR

MARCH 8, 1989

[K.N. SINGH, AND K. JAGANNATHA SHETTY, JJ.] B
" Maharashtra State Subordinate Secretariat Service Rules 1951,
1955 and l962-Rules 1 to 5-Departmental Examination, passing of-
~ Condition precedent for promotion to cadre of Superintendents "late
passing" of examination-Whether affects position in Seniority List-
Whether Government has to make specific O!der relaxing condition for
passing examination-Circular dated Jan. 15, 1962-Effe~t of-Vis-a-
c
... Vis-Statutory Rules .

Respondents 1 to 8 are Assistant Secretaries/Section Officers/
Superintendents who are working in different departments of the State
of Maharashtra. Under the Rules governing their Service conditions the D
Govt •. bad prescribed Departmental Examination for promotion to the
cadre of Superintendents; the passing of the examination was a condi-
lion precedent for the officials for being promoted as superintendents.
The Examination in question was required lo be conducted every year
11 and the officials were required to pass the same within the stipulated
period; and the officials who were not able to pass the said examination E
within the prescribed period were to lose their Seniority, but they were
permitted to take the examination in any number of chances after the
expiry of the stipulated period and they were to be promoted only when
they qualify tbemselve5. The Govt. as required under the Rules, could

'( not bold the examination every year·particularly in the years 1%8, 1969
& 1970. The Govt. neither extended the period within which the
officials were required to pass the examination nor promoted the seniors
F

in the cadre ofSuperintendents subject to their passing the examination
and instead thereof the juniors in the cadre who had qualified in the·
examination were promoted to the cadre of Superintendents. The seniors
in the cadre were promoted only when they qualified the examination
i.e. _later in point of tjnie. G
.,. The Govt. issued a revised Seniority List relating to the cadre of
Superintendents. In the said List the Respondents herein were shown
junio.rs to those persons who had not only qualified the Dept. Examina-
lion later in point of time but also promoted after them. Being
aggrieved, the Respondents herein challenged the validity of tlie revi- H

947
948 SUPREME COURT REPORTS [1989] 1 S.C.R.
/
A sion of the Seniority List as also the validity of the Rules being violative }I I,
of Art. 14 & 16 of the Constitution by filing a Writ Petition in the
Bombay High Court.

The High Court allowed the Writ Peto. and issued the following
two directives to the State Govt.
B
(I) To recast the Revised/Final Seniority List dated 20.12.1982
vis-a-vis the persons shown in the Category of "Late Passing"
after considering the objections of the Writ Petitioners and
Ors. and assign them seniority strictly in accordance with
Rule 2 and the other Government Orders referred to in para-
graph 96 of the Judgment, and
c
(2) The Seniority in the Superintendent's Cadre so fixed should ~
also be considered as seniority for further promotions.

Being dissatisfied with the said order of the High Court, the State
D of Maharashtra filed appeals in this Court after obtaining Special
Leave.

Allowing the appeals this Court,

HELD: Under the 1951 Rules, the candidate could appear for the
E examination after two years of his entering into the cadre. He had three
chances and he must pass within six years of his joining Service. Under
the 1962 Rules a candidate was allowed to take the examination only after
completing five years service in the cadre,' He· had three chances for
taking the examination and that most be"livailed of within four years.
That means he most pass the examination within 9 years' service. Under
F both the Rules, the Govt was required to hold the examination every
year, but no examination was held in 1968, 1969 and 1970. [953F-G I

Those recruited in 1961 are deprived of two chances in 1968 &
1969. The candidates recruited in 1962 are deprived of three chances in
1968, 1969 & 1970 and those of the year 1963 have lost two chances in
G 1969 & 1970. The last batch to lose one chance in 1970 is of the year
1964. [953H; 954A]

Under the 1955 Rules, the Government preserved power to
dispense with or relax the requirements of any rule regulating
"the conditions of service of Government servants; or of any class
H thereof". [954B] - - --- .
STATE OF MAHARASHTRA v. J.A. KARANDIKAR 949

~ There is no restriction as to the exercise of the power or dis-
A
cretion. [954C)

The Circular dated January 15, 1%2 is an executive instruction
whereas the 1955 Rules are statutory since framed under the proviso to
Art. 309 of the Constitution. The Government could not have restricted
,,. the operation of the Statutory Rules by issuing the executive instruction. B
The executive instruction may supplement but cannot supplant the
statutory rules. [954D-E)

--:{ Rule 2 of the 1962 Rules no doubt states that a candidate who does
not pass the examination at the end of 9 years service will lose his
seniority. But this rule cannot be read in isolation. [955D)
c
,., If examination is not held every year. The rule cannot operate to
the prejudice of a person who has not exhausted all his chances. The
person who has not exhausted the available chances to appear in the
examination cannot be denied of his seniority. It would be unjust,
unreasonable and arbitrary to penalise a person for the default of the D
Government to hold the examination every year. That does not also
appear to be the intent or purpose of the 1962 Rules. [955E-F)

-... The Govt. instead of promoting such persons in their turn made
them to wait till they passed the examination. They are the persons
falling into the categorf of "Late Passing". To remove the harship E
caused to them the Govt. wisely restored their legitimate seniority in the
.... promotional cadre. There is nothing improper or illegal in this action
and indeed, it is in harmony with the object of 1962 Rules. [955G-H)

i
~
The Court need not have to reflect upon the Rules of interpreta-
tion since they are well settled. They are now like the habits of driving F
which have become ingrained. They come for assistance by instinct.
The different rules have to be used meticulously to give effect to the
scheme as the clutch, brake and accelerator are used for smooth driv-
ing. These rules are to be harmoniously construed. One should not
concentrate too much on one rule and pay too little attention on the
other' for that would lead astray and result in hardship, such construe- G
l - '.,
-liii-,,·..#1\,-
•'' ~
tion should be avoided. [955C-P I

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3037-
3038 of 1984

From the Judgment and Order dated 12.12.1983 of the Bombay H
950 SUPREME COURT REPORTS [1989] 1 S.C.R.

High Court in W.P. No. 1189 of 1980.
A
S.K. Dholakia, A.S. Bhasme and A.M. Khanwilkar for the
Appellant.

N.B. Shetya, S.B~Bhasme, S. Ramachandran, R. Ramachand-
B ran, Maknand Adkar and Mrs. M. Karanjawala fo1 the Respondents. )<

The Judgment of the Court was delivered by

K. JAGANNATHA SHETTY, J. These two appeals by special
leave are by the State of Maharashtra. They are directed against the
C judgment of the High Court of Bombay dated 12th January, 1983 by
which the High Court issued the following two directives to the State
Government:

_ "(I) To recast the Revised/Final Seniority List dated
20.12.1982 vis-a-vis the persons shown in the category of 'Late
D Passing' and assign them seniority strictly in accordance with
Rule 2 and the other Government orders referred to in
Paragraph 96 of the judgment; and

(2) The seniority in the Superintendent's cadre so fixed ·'°'
should also be considered as seniority fo! further promotions."
E
The background to these directives is, in outline, this:

Respondents 1 to 8 are Assistant Secretaries/Section Officers/
Superintendents in different departments of the Government of ~
Maharashtra. The State Government prescribed departmental exami- ,.
F nations as a condition precedent for promotion to the cadre of \.f'-
Superintendents. The examination was required to be conducted
every year, and the officials have to pass within the stipulated period.
Those who could not pass within the time frame would lose their
seniority but they will be promoted as and when they qualify them-
selves. The Government for some reason or the other could not hold
G the examinations every year. Particularly in 1968, 1969 & 1970, the n
Government did not hold the examinations. The Government, -.J. lil
however, did not pass any order extending the period prescribed for
passing the examinations, nor promoted the seniors subject to their
passing the examination. The juniors who qualified themselves were
promoted overlooking the case of seniors and seniors were only pro-
H moted upon their passing the examination. In the cadre of Superinten-
STATE OF MAHARASHTRA v. J.A. KARANDIKAR [SHETIY, J.] 951

dents, however, the Government revised the seniority list so as to A
reflect the rankings in the lower cadre irrespective of the date of pro-
motion. The validity of the revision of seniority was challenged before
the High Court. The High Court conceded the power to the Govern-
ment to relax the rules relating to passing of the examination in case of
hardship, but refused to recognise the power of the Government to
give seniority to those who could not pass the examination within the B
time schedule. The High Court was of opinion that without specific
orders of the Government relaxing the conditions of the rules, the
persons could not be given seniority for 'Late Passing'. There are also
other reasons given by the High Court which we will presently con-
sider. But before that, it is important that we should have a chronology
of the relevant rules and resolutions of the Government. It is as
follows:
c
On 22nd August, 1951, the Government made a resolution
prescribing departmental. examinl!tion for the members of the Upper ·
Division of the Subordinate Secretariat Service, and further directing
that only those persons who pass the examination should be p~omoted .D
as Superintendents. The accompanying rules (The 1951 Rules) there-
under provided the procedure for passing the examination as well as
the consequences of failure to pass the examination. On 24th August,
1955, the Government framed rules (The 1955 Rules) under the pro-
viso to Article 309 of the Constitution specifically providing power to
dispense with, or relax, the requirements of the operation of any rule E
regulating the conditions of service of Government servants; or of any
... class thereof if it causes undue hardships in any particular case. On
15th January, 1962, the Government issued a circular purporting to
restrict the scope of the rule perrnitting relaxation only in respect of
travelling allowance rules, leave rules, etc. The circular also clarified
· that the 1955 Rules could not be invoked for conferring benefit on an F
individual by relaxing the conditions relating to· recruitment, promo-
tion, grant of extension of service or re-employment. On 28th
December, 1961, the Government made the revised rules in superses-
sion of the 1951 Rules. They were brought into force with effect from
1st January, 1962 (the 1962 Rules). They were made applicable to all
persons recruited to the Upper Division of the Subordinate Secreta- G
riate Service on or after that date and also to those who have been in
service prior to 1st January, 1962 unless they had already passed the
examination under the 1951 Rules. The rules 1to5 are as follows:

"L Every member of the Upper Division of the Sub-
ordinate Secretariat Service will be required to pass within H 1
952 SUPREME COURT REPORTS [1989] 1 S.C.R.

nine years from the date of his entry in the Upper Division,
A
a departmental examination for promotion 'to the posts of
Superintendents according to the prescribed syllabus. For
being eligible to appear for the examination a candidate
must have passed the Post-Recruitment Training Examina-
tion for Junior Assistant·and must have also completed not
B less than five years' continuous service in the ·Upper
Division.

(2) Subject to Rule 1, a candidate will be allowed to
appear for the examination in three chances which must be
availed of within a period of four years. This period of 4
years will not be extended for any reasons irrespective of
c the fact whether a candidate has availed himself of 3
chances or not during the period. Similarly no candidate '1
will be allowed to take during this period more than 3
chances. A candidate who does not pass the examination at
the end of 9 .years service in the Upper Division, will lose
D his seniority to all those candidates ·who pass the examina-
tion before he passes it. '

(3) No persons shall be appointed to the post of
Superintendent unless he has passed the Superintendents'
Examination. Provided that this rule .<shall not apply to
E short term vacancies not exceeding two months.
·-·
(4) Subject to the condition of loss of seniority laid
down in rule 2, a candidate will be allowed to take the
examination in any number of chances after the completion
of 9 years' service.
F
(5) The examination will be held once a year.
xxx xxx xxx xxx"

On December 28, 1970, proviso to above rule 3·has been added. The
said proviso reads:
G
"Provided 'that if the Superintendent's Examination is
not held in any year, a person who has completed 9 years ...:
service and who has not ·exhausted all the permissible
chances, may be promoted to the post of Superintendent,
' ·provided further that he is otherwise suitable for promo-
H tion, subject to the clear condition that he will have to pass
STATE OF MAHARASHTRA v. J.A. KARANDIKAR !SHETfY, J.! 953

the examination at the earliest opportunity whenever it is
A
held."

"It is further clarified that promotions to the posts of
Superintendents should, in view of the above amendments,
be given only after ensuring that there are no persons who
have passed the Superintendents Examination earlier for B
being promoted to the posts of Superintendents."

· We may incidentally refer to the subsequent rules made by the
Government, although it is not applicable to the present case. On June
6, 1977, the Government framed the rules called "The Maharashtra
Government Subordinate Service Rules, 1977". Rule 7 of the rules pro-
vides that if, for any reason, the examination is not held in any particular
c
year, that year shall be excluded in computing the period specified
under the rules. This is, indeed, the true reflection of the underlying
concept of purpose of the earlier rules.

Against this backdrop, we may now consider whether the D
Government was justified in re-arranging the seniority by giving
benefit to persons in the category of "Late Passing".

We are not concerned herein about the seniority of persons in
whose favour the Government has made individual orders extending
the period for passing the examination. We will consider such cases a E
little later. For the present; we may examine the rights of those "Late
Passing" where the Government has not made any specific order relax-

\
ing the conditions for passing the examination. Under the 1951 Rules,
the candidate could appear for the examination after two years of his
entering into the cadre. He has three chances and he must pass within
6 years of his joining service. Under the 1962 Rules the scheme pro- F
' vided· was slightly different. Under that scheme, candidate was
allowed to take the examination only after completing five years
_service in the cadre. He had three chances for taking the examination
and that must be availed of within four years. That means he must pass
the examination within the 9 years' service. Under both the Rules, the
Government was required to hold the examination every year, but no G
examination was held in 1968, 1969 & 1970. This is not in dispute. For
a proper appreciation of the question raised, we must first try to
understand the hardship resulted by not holding the examination in
1968, 1969 & 1970. It is as follows: The candidates recruited in 1960
have lost one chance in 1968. Those recruited in 1961 are deprived of
'I two chances in 1968 and 1969. The candidates recruited in 1962 are H
954 SUPREME COURT REPORTS [1989) 1 S.C.R.

A ,denied of three chances in 1968, 1969 & 1970 and those of the year
1963 have lost two chances in 1969 and 1970. The last batch to lose one
.chance in 1970 is of the year 1964.

The aforesaid Rules expressly provided power to the Govern-
ment t.o grant more chances for passing the examination in any indi-
' B vidual case or in class of cases. Under the 1955 Rules, the Government
preserved power to dispense with, or relax the requirements of any
rule regulating "the conditions of service of government servants; or of
any class thereof'. In the exercise of this power, the Government
could dispense or relax the operation of any rule, if it causes undue
hardships in any particular case. It is needless to state that this power
C includes the power to relax the conditions prescribed for prcunotioJl
since promotion is a condition of se1 vice. There is no restriction as to
the exercise of the power or discretion. The High Court, however, has
observed that the scope of this power has been constrained by the
circular dated 15th January, 1962. The circular states that the 1955
Rules permitting relaxation cannot be utilised to relax the rules which
O regulate conditions of service. It further states that the scope of the
Rules should be limited only to matters relating to travelling
allowance, leave, etc. But this appears to be an exercise in vain.
The circular is an executive instruction whereas the 1955 Rules are
statutory since framed under the proviso to Article 309 of the Con-
stitution. The Government could not have res\ricted the operation of
E the statutory rules by issuing the executive instruction. The executive
instruction may supplement but not supplant the statutory rules. The
High Court was in ertor in ignoring this well accepted principle. ,,.
I
\
When we tum to· the 1962 Rules with the amendments made in
1970, it becomes more clear about the power of the Government to
F relax the conditions for passing the examination. The proviso dated
28th.December, 1970 to rule 3 specifically provides that if the exami-
nation is not held in any year, a person could be promoted to the cadre
of Superi1,1tendent if he has completed nine years' .service. The only
condition is that he should not have exhausted all the permissible
chances. The promotion, made should.be subject to the condition that
G he will have to pass the examination at the earliest apportunity
whenever it is held. The benefit .of this proviso was evidently not
extended to any of the persons falling into the category of "Late
Passing".

Counsel for the contesting respondents however, urged that.the
H proviso does not entitle the candidate to get his legitimate seniority if
STATE OF MAHARASHTRA v. J.A. KARANDIKAR [SHETfY, J.[ 955

he does not pass the examination at the end of nine years' service. He
A
depended upon rule 2 of-the 1962 Rules which states that the candidate
who does not pass the .examination within 9 years' service will lose his
seniority to all those canidates who pass the examination earlier. He
also argued that the proviso is only to rule 3 and not to rule 2 and the
Government has no power to restore the seniority of a person who has
lost it by the operation of.rule 2. B

This is a question of construction of the rules which form part of
the scheme prescribing a condition for promotion. We do not have to
reflect upon the rules of interpretation since they .are well settled.
They are now like the habits of driving which have become ingrained.
They come to our assistance by instinct. We are to use the different
rules meticulously to give effect to the scheme as we use the clutch,
c
brake and accelerator for smooth driving. These rules are to be
harmonionsly construed. We should not concentrate too much on one
rule and pay too little attention on the other. That would lead us astray
and result in hardship. We must avoid such construction. Rule 2 of the
1962 Rules no doubt states that a candidate who does not pass the D
examination at the end of nine years' service will lose his seniority. But
this rule cannot be read in isolation as the High Court did. It has to be
read along with the other rules since it is a part of the scheme provided
for promotion. Rule 5 requires the Government to hold the examina-
tion every year. This rule is the basis of the entire scheme and the
effect of other rules depends upon holding the examination. If exami- E
nation is not held in any year, the rule 2 cannot operate to the
prejudice of a person who has not exhausted all his chances. The
person who has not exhausted the available chances to appear in the
examination cannot be denied of his seniority. It would be unjust,
unreasonable and arbitrary to penalise a person for the default of the
Government to hold the examination every year. That does not also F
appear to be the intent or purpose of the 1962 Rules.

If the examination is not held in any year, the person who has not
exhausted all the permissible chances has a right to have his case
considered for promotion even if he has completed 9 years' service.
The Government instead of promoting such persons in their turn made G
them to w11it till they passed the examination. They are the persons
falling into the category of "Late Passing". To remove the hardship
caused to them the Government wisely restored their legitimate
seniority in the promotional cadre. There is, in our opinion, nothing
improper or illegal in this action and indeed, it is in harmony with the
object of the 1962 Rules. H
956 SUPREME COURT REPORTS [1989] 1 S.C.R.

A This \akes us to the question whether the Government was
justified in ilidividual cases to relax the period for passing the examina-
tion. It is said that the number of persons falling into this category are
not more than five. In the rejoinder filed on behalf of the Govern-
ment, it is stated that the Government made some orders extending
the period for individuals to pass the examination on administrative
B
grounds or on some genuine hardships. It is also stated that such
orders were made upon recommendations by the respective depart-
ments and those persons passed the examination within the period
extended. There is no reason to doubt the correctness of these state-
ments made in the rejoinder. The power to relax the conditions of the
rules to avoid undue hardship in any case or class of cases cannot now
c be gainsaid. It would be, therefore, futile for the respondents to make
any grievance.

In the result and for the reasons stated, we allow these appeals
and in reversal of the judgment of the High Court, we dismiss the writ
D petitions filed by the contesting respondents. In the circumstances of
the case, however, we make no order as to costs.

Y.L. Appeals allowed.

··~