Holding

The 1980 Rules do not extend seniority to officers commissioned after 5 August 1978; seniority is a civil right and the respondent is not eligible for the benefit.

Summary

The respondent, Dinkar Sinha, was commissioned as an Indian Army officer in March 1979, discharged in 1988, and later joined the Uttar Pradesh Police Service under vacancies reserved for ex‑army personnel. He sought additional seniority under the Uttar Pradesh Non‑Technical (Class‑II/Group B) Services Appointment of Demobilized Officers Rules, 1980, which grant up to three years of seniority to demobilized officers whose recruitment process began or concluded under the 1973 Rules. The State rejected his claim, arguing that the 1980 Rules apply only to officers selected before the expiry of the 1973 Rules (5 August 1978). The High Court allowed his petition, but the Supreme Court set aside that order, holding that seniority is a civil right, not a fundamental right, and that the 1980 Rules have a limited, retrospective application only to officers whose selection was completed before the 1973 Rules expired. Consequently, the respondent, having become a commissioned officer after that date, is not entitled to the seniority benefit.

Issues considered

Whether the respondent is entitled to seniority under the 1980 Rules despite being commissioned after the expiry of the 1973 Rules.
Whether seniority is a fundamental right or a civil right requiring a valid rule under a statute.
Whether the 1980 Rules can be given retrospective effect to cover officers selected after the 1973 Rules expired.
Interpretation of the temporary nature of the 1973 Rules and their extinguishment on expiry.

Legislation cited

Constitution of Indias. Article 309, s. Article 352, s. Article 372
General Clauses Act, 1897
Government of India Act, 1935s. Section 241

Subjects

senioritydemobilized officersreservation of vacanciesservice rulescivil rightArticle 309Uttar Pradesh Police Serviceex‑army recruitmenttemporary statutes

Judgment

} STATE OF U.P. AND ANR. A
v.
DINKAR SINHA

MAY 9, 2007

[S.B. SINHA AND MARKANDEY KATJU, JJ.] B

Constitution of India, 1950-Article 309-U.P. Non-Technical (Class-
II) Services (Reservation of Vacancies for the Demobilized Services) Rules,
1968-Rule 4-U.P. Non-Technical (Class-fl) Services (Reservation of
Vacancies for the Demobilized Services) Rules, 1973-Rule 3-U.P. Non
c
Technical (Class II/Group B Services) Appointment of Demobilized Officers
Rules, 1980-Rules 4 & 5-Employee commissioned as an Army Officer after
the expiry of 1973 Rules-1980 Rules were framed to regularize the
appointments of demobilized officers under 1968 and 1973 Rules-Employee
claiming the benefit of seniority under the 1980 Rules-State rejected the D
claim on the ground that he was commissioned after the expiry of 1973
..;.. Rules-Writ Petition before High Court was allowed-Correctness of-Held,
> claim of seniority is not a fundame.1tal right but a civil right which can be
made only under a Service Rule framed under a statute-On facts, the benefit
of seniority and pay under the 1980 Rules is not applicable to the employee E
as he is not a demobilized officer under the 1980 Rules-Hence, the claim
of seniority rejected

U.P. Non-Technical (Class-II) Services (Reservation of Vacancies for the
Demobilized Services) Rules, 1968 was framed for a period of five years
providing reservation to the vacant posts for demobilized officers, who were F
commissioned in Armed Forces at the time of Chinese aggression in 1962.
l Similarly, U.P. Non-Technical (Class-II) Services (Reservation of Vacancies
for the Demobilized Services) Rules, 1973 were framed for a period of five
years providing reservation of the vacant posts for the demobilized officers,
whO 'were commissioned during the Chinese aggression and lndo-Pak war. In
G
1977, the State issued a Government Order reducing the percentage of
reservation. Thereafter, U.P. Non Technical (Class II/Group B Services)
Appointment of Demobilized Officers Rules, 1980 was framed for the limited
purpose of regularizing the appointments of the demobilized officers. The
1980 Rules were subsequently amended providing a benefit of an additional
305
H
306 SUPREME COURT REPORTS (2007] 6 S.C.R.

A three years' maximum seniority to a candidate over and above the period served
by him in the Armed Forces.

Respondent was commissioned as an Army officer in March 1979 but
was discharged in May 1988. Thereafter, he joined State Police Service
against reserved vacancies for ex-Army persons in terms of the Government
B Order of 1977. A representation made by the respondent to grant him the
benefit of additional seniority under the amended 1980 Rules was rejected by
the State on the ground that he cannot be considered as a demobilized officer
under 1973 Rules since he was commissioned as an Army Officer after the
expiry of the 1973 Rules and hence the 1980 Rules were not applicable to
C him. A Writ Petition filed by the respondent was allowed by High Court.

In appeal to this Court, the State contended that the respondent has been
commissioned as an Army Officer only in 1979 i.e. after the expiry of the
1973 Rules and hence the 1973 Rules were not applicable to him; and that
the 1980 Rules were also inapplicable to the respondent as they were framed
D for the limited purpose of regularizing the appointments of demobilized
officers under the 1973 Rules.

The respondent contended that he was selected in 1976 and having been .....
given seniority during the period of Emergency, the 1973 Rules and the 1980
E Rules were applicable to him; and that Rule 5 of the 1980 Rules has a wider
application and covers cases where the 1973 Rules would apply.

Allowing the appeals, the Court

HELD: 1.1. Seniority may not be a fundamental right but is a civil right.
F Infringement of the said right would be permissible only if there exists any
rules validly framed under a statute and/or the proviso appended to Article
309 of the Constitution oflndia. It cannot act in a vacuum. Any rule taking
away such rights would deserve strict interpretation. (Para 17] (315-E, Fl ...I..

lndu Shekhar Singh & Ors. v. State of U.P. & Ors., (2006] 8 SCC 129;
G Bim/esh Tanwar v. State of Haryana & Ors., [2003] 5 SCC 604 and Prafulla
Kumar Das v. State of Orissa, [2003] 11 SCC 614, referred to.

1.2. The contention of the respondent that having joined the pre-
commissioned training in 1976 he would be entitled to the benefit of the 1973
Rules has no merit. The 1980 Rules only have a limited operation by
H regularizing appointments of demobilized officers whose selection process
STATE OF U.P. v. D!NKAR SINHA 307
had been commenced or concluded under the 1973 Rules but appointments A
had not been made before the expiry thereof. There was no provision for
reservation of vacancies for the demobilized officers of the Armed Forces of
the Union of India. [Para 2011316-E, Fl

1.3. The 1973 Rules was a temporary statute. It died its natural death
on expiry thereof. The 1980 Rules does not contain any repeal and saving B
clause. The provisions orthe relevant provisions of the General Clauses Act,
1897 will thus have no application. Once a statute expires by efflux of time,
the question of giving effect to a right arising thereunder may not arise. In
any event, no such right accrued to the respondent. Reservation might have
been fixed by reason of a Government Order issued in the year 1977 but the
same had nothing to do with the 1973 Rules or with the 1980 Rules. Provision C
for reservation made in general by the State in exercise of its executive power
could not have conferred a benefit in terms of the provisions of a rule which
seeks to apply to a particular categor:' of employees in the service.
[Para 211 [316-F, G; 317-Al

1.3. The 1980 Rules neither repealed nor replaced the 1973 Rules. The D
question of continuation of the 1973 Rules by the 1980 Rules thus, did not
and could not arise. The 1980 Rules provided for a limited application viz.
regularization of appointment of demobilized officers. Whereas the 1973 Rules
provided for reservation of vacancies for the demobilized officers, the l 980
Rules provided for appointment of demobilized officers to a limited category E
of employees. The 1980 Rules has been given a retrospective effect only for
regularization of appointment of demobilized officers and that by reason
thereof, the 1973 Rules had not been kept alive. If the respondent became a
Commissioned Officer only after the expiry of 1973 Rules, the question of
his getting any benefit under the 1973 Rules would not arise. The 1980 Rules
would cover only those persons who were appointed against the vacancies p
referred to in the 1973 Rules and not those who joined much later.
(Paras 22 and 231 (317-B, C, D; 318-C, El
l.

Ramji Purshottam (Dead) by LRs. & Ors. v. Laxmanbhai D. Kurlawala
(Dead) by LRs. & Anr., (20041 6 SCC 455; Dilbagh Singh v. State of U.P. &
Ors., (1995] 4 SCC 495; Mahesh Chand & Ors. v. State of UP. & Ors., [2000] G
10 SCC 492; Ram Janam Singh v. State of U.P. & Anr., [1994! 2 SCC 622;
Narendra Nath Pande & Ors. v. State of U.P. & Ors., [1988] 3 SCC 527 and
Rana Randhir Singh & Ors. v. State of U.P. & Ors., [1989] Supp. 1 SCC 615,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1262 of2004. H
308 SUPREME COURT REPORTS [2007] 6 S.C.R.

A From the Final Judgment and Order dated 08.2.2002 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
1754 (SB) of2000.

WITH

B C.A. Nos. 1265 and 1267 of2004.

S.R. Singh, Sandeep Singh, Jatinder Kumar Bhatia, Sunita Pandit, D.K.
Singh, Anita Pandey; Pradeep Shukla and Rajiv Mehta for the Appellants.

Nagendra Rai and Mahabir Singh, Sr. Advs., M.A. Chinnasamy, B.B.
C Chauhan K. Krishna Kumar, Sunil Kumar Jain, S. Borthakur, Jaya Tomar and
Anuvrat Sharma for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Whether in the facts and circumstances of this case,
D the respondent herein was entitled to seniority on the basis of his
Commissioned Service in the Army is the question involved in these appeals
which arises out of the judgment and order dated 8.02.2002 passed by the
Lucknow Bench of the High Court of Judicature at Allahabad in Writ Petition
No. 1754 (SB) of2000.
E
2. The Governor of the then United Province (now the State of Uttar
Pradesh) in exercise of his power under Section 241 of the Government of
India Act, 1935 framed U.P. Police Service Rules, 1942 (for short "the 1942
Rules"). The terms and conditions of the services of the employees including
recruitment thereto are governed thereby. Rule 21 of the 1942 Rules reads as
F under:

"Seniority in the Service shall be determined according to the date of
the order of appointment in a substantive capacity and if two or more
candidates are appointed on the same date, their seniority inter se
shall be determined according to the order in which their names
G appear in the order of appointment:

Provided that-

(I) The inter se seniority of direct recruits selected in one batch shall
be determined according to their merit at the selection but a candidate
H
STATE OF U.P. v. DINKAR SINHA [S.B. SINHA, J.] 309
may lose his seniority if he fails to join without sufficient reasons A
when appointment is offered to him and the decision of the Governor
as to the sufficiency of the reasons shall be final;

(2) The inter se seniority of the promotees, selected at one selection,
relating to one particular year of recruitment shall be determined
according to their seniority in the post from which they are promoted;... B
(5) Vacancies are required to be filled on every occasion both by
direct recruitment and promotion and the inter se seniority of persons
appointed by promotion and direct recruitment against the vacancies
of a particular year, shall be determined by arranging their names
alternatively, the first name being of the person appointed by C
promotion, and placing the names of the remaining persons below en
bloc.

Explanation.- A direct recruit will not be entitled to seniority of the
year earlier to the year of his recruitment solely on the ground that
there had been no recruitment in that year." D
3. The said Rule upon coming into force of the Constitution of India,
continued to remain in force in terms of Article 372 of the Constitution of
India. The President of India proclaimed Emergency on 1.11.1962 under
Article 352 of the Constitution of India consequent upon the Chinese
aggression. On account of grave threat to the security of India, a large scale E
recruitment of officers was to be made therefor. To answer the call of the
nation, a large number of young persons gave up their softer career options
and got themselves recruited to the Armed Forces of the Union of India to
serve the motherland. The Emergency so proclaimed was revoked on
10.01.1968. F
4. The Governor ofU.P. on or about 29.03.1968 framed rules known as
U.P. Non Technical (Class-II) Services (Reservation of Vacancies for the
Demobilized Officers) Rules, 1968 (for short "the 1968 Rules") for a period of
five years whereby and whereunder inter alia reservation to the extent of
20% of the vacant posts were conceived for demobilized officers who had G
been commissioned in the Armed Forces during the Emergency. For the said
purpose, relaxations were also made in certain areas. Rule 4 of the 1968 Rules
provided grant of seniority to such demobilized offi-:ers by raising a legal
fiction, subject however to the condition, that they would be deemed to have
entered service at their second opportunity of competing for recruitment.
H
310 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 5. On or about 3.12.1971, in the wake of Indo-Pak war with regard to
Bangaldesh imbroglio, another external Emergency was proclaimed. A large
scale recruitment was also made to Short Service and Emergency Commission
wherein again many young persons opted to join the Armed Forces of the
Union of India.

B 6. The Governor of U.P. on or about 6.08.1973 framed rules known as
U.P. Non Technical (Class-II) Services (Reservation of Vacancies for the
Demobilized Officers) Rules, 1973 (for short "the 1973 Rules") containing
similar provisions. However, the extent of reservation was reduced from 20%
to I0%. The benefit of the 1973 Rules was extended only to those officers
C who were commissioned between 1.11.1962 to 10.01.1968 and upto those who
joined on or after 3.12.1971 and released at any time thereafter. The 1973
Rules were made applicable for a limited period of five years. It expired on
5.08.1978.

It appears that a GO bearing No. 2003 was issued by the Government
D of U.P. on 20.08.1977 providing for reservation to the extent of 8% only which
was eventually reduced to 2% in Class - II and Class - III Services of the State
Government.

7. A new set of Rules known as U.P. Non Technical (Class - II/ Group
"B" Services) App<;intment of Demobilized Officers Rules, 1980 (for short "the
E 1980 Rules") was made by the State on or about 19.08.1980 for the purpose
of regularizing the appointments of demobilized officers whose selection
process had been commenced or concluded under the 1973 Rules but
appointments had not been made before the expiry thereof.

Indisputably, the 1980 Rules do not contain any provision in regard to
F reservation of vacancies for the demobilized officers of the Armed Forces of
the Union of India.

8. Interpretation and/ or application of the said Rules and the precedents
operating in the field are required to be considered in this case in the
G aforementioned backdrop.

A process of selection started in the case of the respondent in the year
1973 in the Engineering Corps of the Indian Army. He was selected therefor.
He joined the pre-commissioned training on 18.05.1978 and was commissioned
as an officer of the Indian Army only from 17.03.1979. In the meanwhile,
H Emergency was lifted on 27.03.1977. He was discharged from the Indian Army
STATE OF U.P. v. DINKARSINHA [S.B. SINHA,J.) 311

-) on I8.05. I988. Pursuant to the selection in respect of the vacancies which A
arose in the year 1984, he joined U.P. Police Service as an ex-Anny officer
against 8% vacancies reserved for such ex-Anny persons in terms of the
aforementioned GO dated 20.08.1977.

9. We may notice that interpretation of the 1968 Rules as also the 1973
Rules came up for consideration before this Court in Narendra Nath Pande B
and Ors. v. State of U.P and Ors., [1988] 3 SCC 527. wherein it was held:

" ... There is a question of competing in the examination. Rule 6 does
not provide for any gap to be taken into consideration, yet it is
apparent that some reasonable period has to be allowed to a candidate
so as to enable him to avail himself of the opportunity of appearing C
at the competitive examination for h1> recruitment in the Provincial
Civil Service. It cannot be gainsaid that to compete in the examination,
a candidate has to make preparation for that. Competitive examinations
are generally difficult and, in our opinion, at least two years' time
should be allowed to a candidate, after his discharge, for his preparation D
for the competitive examination and that will be his first opportunity.
The second opportunity will arise in the next year, that is, in the third
year of his discharge from the anned forces. In other words, he should
be allowed three years or competing in the relevant examination for
recruitment in the civil service.
E
14. Even after he becomes successful, he is not recruited immediately.
There is the question of availability· of vacancies and posting. It is
common knowledge that some time is taken for posting. On a proper
construction of Rule 6, the period spent by a candidate for competing
in the examination which, in our opinion, will not be more than three
years, and the period of time taken for his recruitment or posting will F
also be taken into consideration for the purpose of computing the
seniority of a war service candidate. Thus, if a candidate is discharged
in the year 1968, he should be given three years' time to avail himself
of the opportunity of competing in the examination. Suppose, he is
successful in the examination held in 1971 and posted in 1973. In view G
of Rule 6, he would be deemed to have entered service at the second
opportunity of competing for recruitment and the entire period from
the date of assumed entry in the service up to his recruitment in 1973
shall be taken into account for the purpose of computing seniority
and pay. If, however, a candidate does not avail himself of the
opportunity within three years of his discharge from war service or H
312 SUPREME COURT REPORTS [2007] 6 S.C.R. r
A takes the examination but becomes unsuccessful, the period between -{ _
.......
\
his discharge and subsequent recruitment will not be taken into
account for the purpose of computing the seniority. Rule 6 should be
given a reasonable interpretation ... "

Yet again, the question in regard to determination of seniority of the
B Deputy Superintendents of Police in terms of Rule 21 of the 1942 Rules came
in Rana Randhir Singh and Ors. v.
up for consideration before this Court..,,•ilf'
State of U.P. and Ors., [19~.9] Supp. L~~C 615].

10. With a view to meet the requirements of the judgment of this Court
in Narendra Nath Pande (supra), the 1980 Rules were amended in terms
c whereof Rule 5 was applied limiting to three years' maximum seniority over
and above the seniority given for the period served by the candidate in the
Armed Forces. Diverse Rules were again framed with which we are not
concerned at this stage, but we may note that by U.P. Act No. 29 of 1999,
reservation in favour of the ex-servicemen in Group A and B Services in the
D State of U.P. was abolished.

I I. Respondent was placed at Serial No. 137 in the seniority list as
belonging to the 1984 batch as a direct recruit. Shri Surendra Singh Negi, a .._
direct recruit of the 1976 batch was placed at Serial No. 14. Respondent made ..
a representation to give to him the benefit of the 1980 Rules, which was
E rejected by the State Government by an order dated 14.09.2000 stating that:

(i) he joined the Indian Army after the expiry of the Proclamation of
Emergency;
(ii) he cannot be considered as a demobilized candidate after the
expiry of the 1973 Rules;
F
(fu) The 1980 Rules had limited applicability, viz., only to those officers ,.___
whose selection process had commenced and concluded prior to ..L
6.08.1978.

12. Respondent aggrieved thereby filed a writ petition before the Lucknow
G Bench of the High Court of Judicature at Allahabad. Those who were above
him in the seniority list, being 118 in number and who would have been )-

affected if a relief had been granted, were, however, not imp leaded as parties
...
in the said petition.
,A
We may furthermore notice that on 19.12.2000, the Uttar Pradesh Non-
H Technical (Class - II/ Group "B") Services (Appointment of Demobilized
STATEOFU.P. v. DINKARSINHA [S.B. SINHA.J.] 313
Officers) (Second Amendment) Rules, 2000 (for short "the 2000 Rules") were A
framed. These Rules have been given retrospective effect, i.e., from 6.08.1978.
However, on 3.02.2001, the State made third amendment in the 1980 Rules
restoring the original position prevailing before coming into force of the 2000
Rules as the said Rules were held to be illegal having been framed in violation
of the judgment of this Court in Ram Janam Singh v. State of U.P. and Anr.,
[1994) 2 sec 6221. B
By reason of the impugned judgment, the said writ petition has been
allowed.

13. The learned counsel appearing on behalf of the appellants and the
intervenor, would, in support of these appeals, inter a/ia submit: C
(i) The 1980 Rules cannot be said to be retrospective in nature nor
the same is in continuation of the 1973 Rules and in that view
of the matter, the High Court committed a manifest error in passing
the impugned judgment.
D
(ii) The 1980 Rules have a limited application insofar as the same
sought to protect only those officers in whose cases the
_,. recruitment process started in the year 1973 and were not applicable
>- in the cases of those who were recruitt.d after it came into force.
(iii) Whereas the 1973 Rules provided for reservation, the 1980 Rules
E
did not provide for any, save and except to a limited extent and,
thus, the same could not be applied in the case of the respondent.
(iv) Respondent was recruited against the vacancies which arose in
the year 1984 only in the year 1988 and, thus, having been
appointed in the State's service only on 17.03.1979, the 1980
F
Rules or the 1973 Rules could not have any application in the
case of the respondent.
(v) The Seniority was given only to the Emergency Commissioner
officers.
(vi) In view of the decision of this Court in Ram Janam Singh v. State G
of U.P. and Another (1994) 2 SCC 622, wherein law has been laid
down as to who would get the benefit of the 1980 Rules, the
impugned judgment must be held to be bad in law.

14. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the
respondent, on the other, submitted: H
314 SUPREME COURT REPORTS (2007) 6 S.C.R.

A (i) Respondent was selected in 1976 and having been given seniority -{.
during the period of Emergency, the 1973 Rules, as incorporated
by reference, the 1980 Rules will apply.
(ii) In view of the decision of this Court in Dilbag Singh v. State of
U.P. and Ors., (1995] 4 SCC 495 as well as that of a 3-Judge Bench
B of this Court in Mahesh Chand and Ors. v. State of U.P. and Ors.,
(2000] I0 SCC 492, Rule 5 of the 1980 Rules must be held to have
a wider application and would also cover cases where the 1973
Rules would apply.
(iiO In any event, the respondent having acquired a vested right in
C terms of the 1973 Rules, the impugned judgment should not be
interfered with.

15. Admittedly, the 1968 Rules governed the field during the period
November, 1962 and January, I968, but the same would have no application
in the instant case. Applicability of the I973 Rules is in question. The said
D Rules, as noticed hereinbefore, remained in force only for a period of five
years from the date of its commencement, i.e., 6.08.1973.

Rule 3 of the 1973 Rules provided for reservation of vacancies inter alia
for those who were Emergency Commissioned Officers before 10.01. 1968 and
again on or after 3.12.1971.
E
The 1980 Rules defined demobilized officers in the following terms:

"Demobilised Officer" means Disabled defence Service Officer,
Emergency Commissioned Officer and the short service commissioned
officer, of the Armed Forces of the Union who was commissioned on
F or after November 1, 1962 but before January I0, 1968 or on or after
December 3, I971 and released at any time thereafter."

Rule 4 of the 1980 Rules provided for appointment stating:

"4. Appointment .-A person selected for appointment to a non-technical
G Class II/Group 'B' service or post against the vacancies reserved for
demobilised officers, as a result of recruitment, the process of which
was concluded or commenced prior to August 6, 1978, in accordance
with the provisions of the Uttar Pradesh Non-technical (Class II)
Services (Reservation of Vacancies for Demobilised Officers) Rules,
1973 (hereinafter to be referred to as the said rules), shall be eligible
H
STATE OF U.P. v. DINKAR SINHA [S.B. SINHA.J.) 315

and be considered for appointment against the vacancies reserved for A
demobilised officers under the said rules:

Provided that the reserved vacancies shall be utilised first for the
appointment of disabled defence service officers, and, if any such
vacancies still remain unfilled, the same shall then be made available
to other emergency commissioned officers and short service B
commissioned officers.

Explanation-The notification of vacancies or the advertisement thereof
by the Commission shall, among others, be a process of recruitment
within the meaning of this rule."
c
16. Rule 5 of the 1980 Rules provided for seniority and pay of persons
appointed against the vacancies referred to in the 1973 Rules, the relevant
portion whereof reads, thus:

"5. Seniority and pay.-(!) Seniority and pay of persons appointed
against the vacancies referred to in the said rules shall be determined D
on the assumption that they entered the service concerned at the
second opportunity of competing for recruitment, and they shall be
assigned the same year of allotment as successful candidates of the
relev~t competitive examination: ..."
17. Seniority may not be a fundamental right, but is a civil right. [See E
Jndu Shekhar Singh and Ors. v. State of U.P. and Ors., [2006] 8 SCC 129,
Bimlesh Tanwar v. State ofHaryana and Ors., (2003] 5 SCC 604 and Praful/a
Kumar Das v. State of Orissa, [2003] I I SCC 614 Infringement of the said
right would be permissible only if there exists any rules validly framed under
a statute and/ or the proviso appended to Article 309 of the Constitution of F
India. It cannot act in a vacuum. Any rule talcing away such rights would
deserve strict construction.

I 8. The 1968 Rules, the 1973 Rules and the 1980 Rules were framed with
a view to encourage young men to join Indian Army. They were made with
a view to meet particular exigencies. Whereas the I 968 Rules and the I973 G
Rules were primarily made for providing reservation to vacancies for demobilized
officers, the 1980 Rules sought to achieve a different purpose, as it does not
provide for any reservation.

Whereas Rule 3(1) of the 1973 Rules provided for reservation of 10%
to the Emergency Commissioned or Short Service Commissioned officers who H
316 SUPREME COURT REPORTS [2007] 6 S.C.R.

A were commissioned during the period mentioned therein, Rule 4 thereof
conferred benefit on persons appointed only in that category. Benefit of i-
seniority and pay was to be extended on such employees on assessment of
their second opportunity of competing. Such second opportunity was to be
counted from the date of birth in respect of minimum age for competing. The
B State made the said provision only for a section of employees who might have
intended to sacrifice their soft career during the period of Emergency as
recruitment process in their case might have started during the period when
the 1973 Rules were in force but could not be completed. The 1980 Rules seek
to give limited retrospective effect by conferring benefits in regard to
appointment to the reserved post for the demobilized officers whose process
C of recruitment was to be completed or commenced before 6.08.1978 in
accordance with the 1973 Rules. Rule 5 of the 1980 Rules, however, is in pari
materia with Rule 6 of the 1973 Rules.

19. Respondent had never contended that his case was governed by the
1973 Rules. He proceeded on the basis that only because the process of
D selection started in the year 1975, and he having been selected when the 1973
Rules were applicable, his case for recruitment did not come within the
purview of the reserved category of candidates as envisaged under the '1973
Rules which, it will bear repetition to state, was in force only upto 5.08.1978.

20. Submission of Mr. Rai that the respondent having joined the pre-
E commissioned training in 1976 would be entitled to the benefit of the 1973
Rules or thereby rights were accrued to him, in our opinion, has no merit.

The 1980 Rules, as noticed hereinbefore, only have a limited operation
by regularizing appointments of demobilized officers whose selection process
F had been commenced or concluded under the 1973 Rules but appointments
had not been made before the expiry thereof. There was no provision for
reservation of vacancies for the demobilized officers of the Armed Forces of
the Union of India.

21. The 1973 Rules was a temporary statute. It died its natural death
G on expiry thereof. The 1980 Rules does not contain any repeal and saving
clause. The provisions of the relevant provisions of the General Clauses Act
will, thus, have no application. Once a statute expires by efflux of time, the
question of giving effect to a right arising thereunder may not arise. In any
event, in this case, no such right accrued to the respondent. Reservation to
the extent of 2% might have been fixed by reason of a Government Order
H
STATE OF U.P. v. DINKAR SINHA [S.B. SINHA. J.] 317
-}- issued in the year 1977 but the same had nothing to do with the 1973 Rules A
or with the 1980 Rules. Provision for reservation made in general by the State
in exercise of its executive power could not have conferred a benefit in terms
of the provisions of a rule which seeks to apply to a particular category of
employees in the service.

22. The 1980 Rules neither repealed nor replaced the 1973 Rules. The B
question of continuation of the 1973 Rules by the 1980 Rules, thus, did not
and could not arise. The 1980 Rules provided for a new set of rules. They
t., were to have a limited application, viz., regularization of appointment of
demobilized officers.

Not only the nomenclature of the 1980 Rules is different from that of
c
the 1973 Rules, the purport and object is also different. Whereas the 1973
Rules provided for reservation of vacancies for the demobilized officers, the
1980 Rules provided for appointment of demobilized officers to a Jim ited
category of employees.
D
23. The 1980 Rules to the aforementioned effect has been given a
retrospective effect, i.e. from 6.08.1978 only for achieving the said purpose
noticed hereinbefore. By reason thereof, thus, the 1973 Rules had not been
kept alive. We may at this juncture notice that Lahoti, J. (as the learned Chief
Justice then was) in Ramji Purshottam (Dead) by LRs. And Ors. v. Laxmanbhai E
D. Kurlawala (Dead) By LRs. And Anr., (2004] 6 SCC 455 stated:

"14. Justice G.P. Singh states in Principles of Statutory Interpretation
(9th Edn., 2004, at p. 462)-

"[T]he fact that a prospective benefit under a statutory provision is F
in certain cases to be measured by or depends on antecedent facts
does not necessarily make the provision retrospective .... the rule
..i against retrospective construction is not always applicable to a statute
merely 'because a part of the requisites for its action is drawn from
time antecedent to its passing'."
G
In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash
Chandra Yograj Sinha the Constitution Bench held that Bombay Act
57 of 194 7 is a piece of legislation passed to protect the tenants
against the evil of eviction. And the benefit of the provisions of the
Act ought to be extended to the tenants against whom the proceedings H
are pending on the date of coming into force of the 'legislation."
318 SUPREME COURT REPORTS [2007] 6 S.C.R.

A 24. In Di/bag Singh (supra), whereupon strong reliance has been placed 1'-
by Mr. Rai, the appellant therein was commissioned on 22.09 .1974 and in the
aforementioned situation, it was held that the selection process having started
after 1973 and he having been appointed during the period when the 1973
'
Rules had been into force, by reason of Rule 5 of the 1980 Rules, the 1973
Rules must be deemed to be in operation till then. The decision of this Court
B
in the fact of that case may be correct but then it is distinguishable in the
sense that in the instant case the respondent had joined Commissioned
Service only in the year 1979. Whether he was selected as a commissioned
officer or whether he had undergone pre-commissioned training is not relevant
l
for applicability of the 1980 Rules. What was relevant is as to from which
c date he bec11me a Commissioned Officer. Ifhe became a Commissioned Officer
only after 5.08.1978, i.e., after the expiry of the 1973 Rules, the question of his
getting any benefit under the 1973 Rules would not arise.

The same principle has been reiterated in Mahesh Chand (supra) wherein
this Court held:
D
"6. The scope of Rule 5 is wider. It regulates the seniority and pay
of persons appointed against vacancies referred to in the 1973 Rules.
Therefore, while it may cover those who are appointed under Rule 4, ...
it also covers all others who are appointed against vacancies referred ~

E to in the 1973 Rules. That being so, the judgment in the case of Dilbag
Singh which construed Rule 5, does not require reconsideration on
the ground that Rule 4 was omitted from consideration."

It is, therefore, evident that the 1980 Rules would cover only those
persons who were appointed against the vacancies referred to in the 1973
F Rules and not those who joined much later.

25. The purport for which such benefits had been given has been
considered in Ram Janam Singh (supra), wherein it has been held:

"14. Can it be said that the persons who had joined Army after the
G 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 known that many persons who joined army service
during the foreign aggression, could have opted for other career or
~
H 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 •
STATEOFU.P. v. DINKARS!NHA[S.B. SINHA,J.] 319
writ large. No one can dispute that such persons formed a class by A
themselves and by rules aforesaid an 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 revocation of
emergency have to be treated like persons who have joined army B
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 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 affect the seniority of persons who have already
entered in the service. As such any period of earlier service should C
be taken into account for determination of seniority in the later service
only for some very compelling reasons which stand the test of
reasonableness and on examination can be held to be free from
arbitrariness."

26. Respondent in this case admittedly joined the services after the
D
Emergency was over. Furthermore, he joined the State service only in the year
1988 when the I 980 Rules ceased to have any force.

>- 27. For the reasons aforementioned, we are of the opinion that the
impugned judgment cannot be sustained. It is set aside accordingly. The E
appeals are allowed. No costs.

B.S. Appeals allowed.