Holding

Direct recruits through a competitive examination are senior to promotees from the State Civil Service having the same year of allotment, and the gradation list must reflect this seniority.

Summary

The first respondent, H.R. Patankar, was recruited to the IAS in 1955 and assigned the year 1956 as his year of allotment. Several officers promoted from the Gujarat State Civil Service (respondents 3‑9) were also assigned the same year of allotment but began officiating in senior posts earlier than Patankar. The Government placed these promotees ahead of Patankar in the 1963 gradation list, prompting Patankar to challenge the list. The High Court Division Bench held that Patankar, as a direct recruit, should be senior to the promotees, and the Supreme Court affirmed this, noting that the Seniority Rules contained a lacuna for officers appointed before and after 11 April 1958 and that the appropriate principle—direct recruits senior to promotees with the same allotment year—must be applied. No executive order or rule was found to override this principle, and the gradation list was ordered to be corrected.

Issues considered

Whether a direct recruit to the IAS through a competitive examination is senior to officers promoted from a State Civil Service when both have the same year of allotment.
Whether the gradation list prepared by the Government complied with the applicable seniority rules in the absence of a specific executive order.

Legislation cited

Indian Administrative Service (Regulation of Seniority) Rules, 1954s. Rule 3(3)(a), s. Rule 3(3)(b), s. Rule 4

Subjects

seniorityIndian Administrative Servicegradation listdirect recruitpromoteerule interpretationexecutive orderlacuna

Judgment

400
UNION OF INDIA
A
\',

H.R. PATANKAR & ORS.
August 14th, 1984
[P.N. BH'.GWATI, R.S. PATHAK AND AMARENDRA NATH
B SEN, JJ.J
Indian Administrative Service (Reguh1tion of Seniority) Rules 1954,
Rules 3 (3) (a) and 3 (3) (b).
Direct recruits and promotees-Assignn1ent of same year of affotment-
lnl1r se seniority-How determined.

c Gradation list-Preparation of-Laf'una in Seniority Rules-Governml'nt
entitled to issue an executive order.

The first respondent was recruited to the Lndian Administrative Service
through a competitive examination held in 1955, and atsigned the year 1950
a!I year of allotment to the Service under Rule 3 (3) (a) of the Indian
Administrative Service (Regulation of Seniority) Rules, 1954. On August
D 21, 1961 he started officiating in a senior post. Respondent Nos. 3 to 9
were members of the State Civil Service and they were promoted to the Indian
Administrative Service. Responcfent Nos. 3 to 7 started officiating cont=-
nuously in the senior post in the Service w.e·f 9th June 1961, while respon-
dent Nos. 8 and 9 started officiating w.e.f. August 19, 1961. The year of
a11otment given to Respondent Nos. 3 to 9 was the same as that of respon-
dent No. 1. viz. 1956 and that was given in accordance with Rule 3 (3) (b)
.
E ·"'f the Seniority Ru Tes.
When the gradation list as on 1st January 1963 was issued by the
Government of India, the first respondent found that the Government had
placed respondent Nos. 3 to 9 as senior to him in the gradation list on the
ground that they had started officiating in a senior post in the Service earlier
than the first respondent. The first respondent thereupon made several
F representation to the Government of India against the aforesaid fixation of
seniority but they were ultimately rejected by a communication dated 7th
October, 1966.
Being aggrieved, the first respondent filed a writ petition cha)lenging the
validity of the said gradation list, but a single Judge of the High f"ourt rejec-
ted the contention~ of the first respondent, and dismissed the writ oetition.

G The first respondent preferred a Letters Patent Appeal, which was
allowed by the Division Bench, holding that the first respondent wa~ entitled
to seniority over respondent Nos. 3 to 9, and th:i.t the Government of India
,.
was wrong in placing him bdow respondent Nos. 3 to 9 in the gradation Hst.

Dismis!ling the Appeal of the Union of India to this Court,

HELD : 1. The Division Bench of the High Court was right in
holding that the first respondent should be assigned seniority over respon-
H dent Nos. 3 to 9 in the gradation list. [409E]
UNION v. H. R. PATANAKAR 401

Jn the instant case, the only fair and just principle of seniority which A
can be applied as tetwecn officers directly recruited through a competi1ive
exnmination and officers promoted fron1 the State Civil Service and havina:
the same year of allotment, is to regard direct recruits through a conipetitive
examination as senior to promotees from the State Civil Service. [409C-D]
2. The gradation list has to be prepared in accordance with the princi-
ple of seniority laid down by the Government either statutorily or by means B
of executive order or rule and it is by reference to ·such principle of seniority
laid down by the Government that the validity of the gradation list is rsq'ujred
to be judged. The gradation Hst must follow the enunciation of the appro·
Priale principle of seniority followed by the Goverrin1ent and no principle of
seniority can be implied from the inter se seniority fixed in such gradation
list. [408F-G] [408F-G]
In the instant case, the same year of allotment was assigned to the
c
first resp0ndent as a1so ~o respondent Nos. 3 to 9 and b~tween them, the
first respondent was aripointed to the Indian Administrative Service earlier
than respondent Nos. 3 to 9. On the date when the first respondent was
appointed to the ·lndian Administrative Service, the Principle of seniority
which was in force was one set out in the original sub-rule (3) of Rule 4 and
according to this principle if respondent Nos. 3 to 9 had been appointed prior 0
to 11th April 1958 but subsequent to the appointment of the first respondent,
the first respondent would be entitled to claim seniority over respondent
Nos. 3 to 9. [408H; 409A-B]
3. Rule 4 of the Seniority Rules laid down the principles for gover-
ning inter se seniority of officers in the Indian Administrative Service. By a
notification dated 11th ApriJ 1958, Rule 4 was amended by the substitution of B
a new sub-rule (3) in place of the o1d one, For determination of inter se
seniority of officers appointed on or after 11th April 1958 an amendment
was made on 13th August, 1958 which introduced a sub-rule (4} after sub-rule
(3) which substantially laid down the same provisions as the sub-rule (3)
introduced by the a:Y"endment of 11th April 1958. Neither the original sub-
rule (3) nor the new sub-rule (3) introduced by the amendment of 13th
August 1958 can apply in the instant case of detern1ining inter se sen:ority of
first respondent and respondent Nos. 3 to 9, becaus~ even th..,ugh the first
respondent and respondent Nos. 3 to 9 all Pave the sc1n1e }car of allotn1ent
and the first respondent was appointed to the service after the commencement
• of the Seniority Rules and before 11th April 1958, respondent Nos. 3 to 9
were appointed on 9th June 1961 and 29th August 1961 that is after 1lth
April 1958. Similarly neither the new sub-rule (3) introduced by the amend-
ment of l4th April 1958 nor the new sub-rule (3) introduced by the amend-
ment of 13th August 1958 would apply for determining inter se seniority G
between the first respondent and respondent Nos. 3 to 9 because this provi-
' sion would apply only for determining inter se seniority in respect of officers
appointed to the Service o'l or after 11th April 1958 and the first respondent
having been appointed prior to 11th April 1958 would not fall wi1hin this
category. [404B, 405E; 406E; 407 A; D-GJ

Jn the instant case, there was at the n1aterial time no rule in the
Seniority Rules which laid down the principle for det~rmining inter se HJ
402 SUPREME COURT REPORTS [1985] 1 s.c.R,

seniorty b~twcen an officer appoil1ted to the Service prior to ] lth April
1958 and an officer appointed to the Service on or after that date. There
was clearly a lacuna in the Seniority Rules which failed to provide for thi;;
situation. The Government of India was in the circumstances entitled to
lay down a rule for determining the inter se seniority in such a situation
B and this could be done by the Govern1nent Or 1ndia eve~ by an executive
order. There is nothing: in the' record to show that the G~vernment of India
issued4ny executive order or rule laying down the principle for deter·
mining lfltcr se seniority as between officers appointed prior to 11th April
' 1958 and officers appointed on or after that date, [407H; 408A; DJ
C1v1L APPELLATE JURISDICTION : Civil Appeal No. 173 of
c 1978.
•'
From the Judgment and Order dated the 28th July, 1969 01
the Delhi High Court in Letters Patent Appeal No. 21 of 1969.

Harbans Lal and R.N. Poddar for the Appetlant.
n Anil Naliriya and K.H. Hathi for the Respondent.

S.K. Bagga for the Intervener,
The Judgment of the Court was delivered by
BHAGWATI J. This appeal by certificate is directed against
the judgment of the High Court of Delhi allowing the writ petition
of respondent No. I and striking down the validity of the seniority
list issued by tbe appetlant placing the first respondent below
respondent Nos. 3 to 9 in the seniority list. The controversy ·arising
in the appeal lies in a narrow compass but in order to arrive at its
F correct determination, it is necessary to state briefly a few facts
leading to the filing of the appeal.
The first respondent was recruited to the Indian Administra·
tive Service through a competitive examination held in ; 955 and
according to Rule 3(31(a) of the Indian Administrative Service ·
(Regulation of Seniority) Rules, 1954 (hereinafter referred to as
the 'Seniority Rules'), he was assigned the year 1956 as the year
G, of allotment to the Service. He was posted in a junior post on
recruitment through competitive examination for the Indian Adminis.
trative Service and on 21st August, 1961 he started officiating in
a senior post. Respondent Nos. 3 to 9 were on the other hand
members of the Gujarat State Civil Service and they were promo-
ted to the In?ian Adrn~nistrative. Service an.d they s1ar1ed ofiicj~
. continuously m the sen10r post m the Service w.e.f. 9th June 1961
ff, so far as responde)lt Nos.3 to 7 were concerned and with effect
UNION i>. H.R. PATANAKAR (Bhagwati, J.)

from 29th August 196 l so far as the remaining respondents,
namely, respond ;nt Nos. 8 and 9 were concerned. The year of
allotment given to respondent Nos.3 to 9 was the same as that
of respondent NJ. I, namely, 1956 and that was given in accor-
dance with the provisions of Rule 3(3)(b) of the Seniority Rules.
The .seniority amongst direct recruits through competitive B
examination and promotees from the State Civil Service was
governed by the Seniority Rules and according to the first
respondent, since they were all assigned the same year of allotment,
the first respondent as a direct recruit through a competitive
examination was entitled to rank higher in seniority than respon-
dent Nos.3 to 9 who were promoted from the State Civil Service. c
But, when the gradation list as on !st January 1963 was issued by
the Government of India, the first respondent found that the
Government of India had placed respondent Nos. 3 to 9 as senior
to him in the gradation list, on the ground that they had started
officiating in a senior post in the Service earlier than the first
respondent. The first respondent thereupon made several repre- D
sentations to the Government of India against the fixation of his
seniority vis-a-vis respondent Nos. 3 to 9 but the Government of
India ultimately rejected bis representation by a communication
dated 7th October, l 966. The first respondent thereupon filed a
writ petittion in the High Court of Delhi challenging the validity
E
of the gradation list showing him as junior to respondent Nos. 3 to
9. The writ petition came up for bearing before a single Judge
of Delhi High Court and the learned Judge rejected the contentions
of the first respondent and dismissed the writ petition. ·Respon-
dent No. I thereupon preferred a Letters Patent Appeal before a
Division Bench of the Delhi High Court and the Division Bench F
did not agree with the view taken by the learned single Judge and
held that the first respondent was entitled to seniority over
• respondent Nos.3 to 9 and that the Government of India was
wrong in placing him below respondent Nos. 3 to 9 in the grada-
tion list. The Division Bench on this view allowed the Letters
Patent Appeal and issued a writ directing that the gradation list G
be corrected by showing the first respondent as senior to respondent :C•
Nos.3 to 9. The Union of India thereupon preferred the present
appeal on the basis of certificate granted under Article 133(l)(c) of
the Constitution .
... The short question which therefore arises for consideration
··t
404 SUPREME COURT REPORTS [\985] l S.C.R.

A
is as to the relative seniority of the first respondent vis-a-vis
respondent Nos. 3 to 9. Since the only rules ir1 force for·deter-
mining inter se seniority of officers in the Indian Administrative
Service at the material time were the Seniority Rules, it is
necessary to refer to them for the purpose of resolving this
B question. Rule 4 of the Seniority Rules laid down the principles
for governing inter se seniority of officers in the Indian Adminis-
trative Service and this Rule as it originally stood at the time of
promulgation of the Seniority Rules on 8th September, 1954 was
in so far as material in the following terms:

"l. "Rule 4. Seniority of Officers-(!) The seniority of
officers inter se shall be determined in accordance with
.
''

the provisions hereinafter contained in this Rule.

(2) The seniority of officers in service at the com-
mencement of these rules shall be as has been determined
D
or may be determined by the Central Government in
accordance with the orders and instructions in force
in1mediatcly before the com1nencement of these rules.

Provided that where the seniority of an officer appoint-
E ed in accordance with sub-rule (l) of Rule 8 of the
Recruitment Rules has not been determined before the
commencement of these rules, his seniority shall be •
determined in accordance with the provision in sub-rule (3).

(3) The seniority of officers appointed to the service
r after the commencement of these rules who are assigned
the same year of allotment shall be in the following order
that is to say:

(i) Officers appoi_nted to the service on the results of a
competitive examination in accordance with rule 7 of
G. the Recruitment Rules ranked inter se in accordance
with. rule 10 of the Indian Administrative Service
(Probation) Rules, 1954;

(ii) Officers appointed to the service by promotion in
accordance with sub-rule (1) of rule 8 of the

H
Recruitment Rules ranked inte.r se in the order of the ·-
date of their appointment.
ONION v. lt.R. PATANAKAR (Bhagwati, J.) 405

f'rovided that if the date of appointment of more A
than one such officer is the same their seniority inter
se shall be in the order in which their names are
arranged on the date of their appointment to the
Service in the Select List prepared having regard to
the requirements of the Indian Administrative B
Service (Appointment by ~Promotion) Regulations
framed under sub-rule (1) of rule 8 of the Recruitment
Rules."

Now if this Rule 4 had continued in the same form in which
it was originally pro.nulgated. there ca.n be no doubt that under c
Sub-Rule (3) of that Rule, respondent No. I being a. direct recruit
appointed on the result of a competitive examination would have
clearly been senior to respondent Nos.3 to 9 who were promotees
from the State Civil Service. Sun-rule (3) of Rule 4 would have
clearly applied to determine their inter se seniority, because they
were all assigned the same year of allotment, narriely, 1956 and D
according to sub-rule (3) of Rule 4, direct recruits through
competitive examination were en bloc entitled to seniotity over
promotees from the State Civil Service having the same year of
allotment. But, by a notification dated 11th April, 1958, Rule 4
was amended by the substitution of a new sub-rule (3) in place of
E
the old one and this new sub-rule (3) so far as relevant provided -

,. inter a\ia as follows:

"Sub-Rule 3.-The seniority of officers appointed to
the service on or after the day of April 11, 1958, who are
assigned the same year of allotment shall be in the follow- F
ing order, that is to say-
•
(i) Officers appointed to the service on the results of a
competitive ex~mination-in accordance with rule 7
of the Rectt. Rules and officers appointed to the '
service by promotion in accordacce with sub-rule (1) IG
of rule 8 of the those Rules ranked inter se in the order
ofthe dates on which they start officiating conti-
nuously in senior posts, the date of officiation in the
case of the latter officers being the same as the date
taken into account for the purpose of assignment of
year of allotment under sub-rule (3) of rule 3 : H
406 SUPREME COUll.T REPORTS [I 985] i S.C.R.

Provided that- •
(a) the seniority inter se of officers appointed to the
service on the results of a competitive examination
in accordance with rule 7 of the Recruitment Rules
and ranked in accordance with rule 10 of the Indian
B Administrative Service (Prob~tion) Rules, I 954 shall
not be affected;

(b) Where the date of commencement of continuous
officiaticn in a senior post of an officer appointed to
c the service in accordance with rule 7 of the Recruit- t,
ment Rules is the same as that of an officer appointed
to the service under sub-rule (1) 0f rule 8 of those
rules, the former shall rank senior to other officer;

(c) Where the date of commencement of continuous
D officiation in senior posts of mora than one officer
appointed to the service in accordance with sub-rule
(1) of rule 8 of the Recruitment Rules in the same,
their seniority inter se shall be in the order of their
dates of appointment to the service, and where the
date of appointment is also the same, in the order in
E which their names are arranged on the date of tlieir
appointment to the service in the select list prepared
having regard to the requirements of the Indian "' •
Administrative Service !Appointment by Promotion)
Regulations framed under sub-rule (!) of rule 8 of
the Recruitment Rules."
D
This new sub-rule (31 was on its plain terms prospective in
opration and it governed the inter se sen;ority of only those officers •
appointed to the Indian Administative Service 'on or after 11th
April 1958 and did not apply for determining inter se seniority
, where one of the competing officers were appointed prior to 11th

G
April 1958. This was clear enough on a plain grammatical construc-
tion of the new sub-rule (3) but the Government of India thought
that its intention should not be left in any doubt whatsoever and
therefore on 13th Augost 1958 the Government of lndia again
-
amended Rule 4 by substituting sub-rule (3). The new sub-rule
(3) introduced by this amendment substantially reproduced the
original sub-rule (3) for determining inter se seniority of officers
appointed before 11th April 1958 and so far as the determination
H
UNION v. Il.R. PATANAKAR (Bhagwati, J.) 407

of inter se seniority of officers appointed'on or after 11th April 1958 A
was concerned, the amendment inserted a new sub-rule(4J after sub-
rule (3) which substantially laid down the same provisions as the
sub-rule (3) introduced by the amendment of I !th April 1958.
Obviously, the object of noaking this amendment on 13th August
1958 was. to clarify that the principle of seniority laid down in the B
original sub-rule (3) would continue to apply for determining inter
se seniority of officers appointed prior to I Ith April 1958 and the
inter se seniority oLofficers appointed on or after 11th April 1958
would be governed by the principle of seniority laid down in sub-
-rule (3) introduced by the amendment of 11th April 1951.
.. .... c
Now it is obvious that neither the original sub-rule (3) nor
the new sub-rule (3) introduced by the amendment of 13th August
1958 can apply in the present case for determining inter se seniority
of first respondent and respondent Nos. 3 to 9, because though the
first respondent and respondent Nos. J to 9 all have the same year
D
of allotment and the first respondent was appointed to the service
after the commencement of the Seniority Rules and before ! Ith
April 1958, respondent Noi. 3 to 9 were appointed on 9th June
1961 and 29 August, !961 that is after !Ith April 1958. The old
sub-rule (3) as also the new sub-rule (3) introduced by the amend-
ment of 13th August 1958 apply only when the inter se seniority to E
be determined is that between officers appointed to the service
prior to I !th April 1958 and if any one or more of the competing
pfficers is appointed to the service or on after I Ith April 1958 this
provision on its plain t_erms would not apply. Similarly neither the
new sub-rule (3) introduced by the amedment of I Ith April 1958
nor the new sub-rule (3) introduced by the amendment of 13th F
August 1958 would apply for determining inter se seniority between
• the first respondent and respondei.t Nos. 3 to 9, because those
provisions would apply for determining inter se seniority only in
respect of officer.< appointed to the service on or after I Ith April
1958 and the first tespondent having been appointed prior to I Ith
April 195S would not fall whithin this castegory. There can there-
G
fore be no doubt that there was at the material time no rule in the
Seniority Rules which laid 'down the principle for determining
inter se seniority between an officer appointed to the service prior
I to I Ith April 1958 and an officer appointed to the service on or
after that date. There was clearly a lacuna in the Seniority Rules
which failed to provide for this situation. The Government of India H
408 SUPREME COURT REPORTS [1985] 1 s.C.R.

A was in the circumstances entitled to lay down a rule for determi·
ning inter sc seniority in such a situation and this could be done
by the Government of India even by an executive order. It is now
well settied law that even if there a·re no statatory rules in force
for determining seniority in a service or even if there are statutory
rules but tbey are silent on any particular subject, it is competent
B to the Government by an executive order to make appropriate
Seniority Rules or to fill -in the lacuna in the statutory rules by
making an appropriate seniority rule in regared to the subject on
which the statutory rules are silent. The Government of India could
have therefore in the present case issued an executive order laying

c
down a rule for determining inter se seniority between officers
appointed to the service prior to 11th April 1958 on the one band
..
and officers appointe.l to the se.vice on or after that date on the
other. But the learned counsel appearing on behalf of the Union or
India could not show from the record any such executive· order
made by the Government of India~ There is nothing in the record
D to show that tl1e Government of India issued any executive order
or rule laying down the principle for determining inter se seniority
as between officers appointeJ prior to I Ith April 1958 and officers
appointed on or after that date. The only argument which could
be advanced by the learned counsel appearing on behalf of the
.
Union of India was that such an executive order or rule must be
E implied from the gradation list i;sued by the Government of India
where respondent No. 1 was shown as junior to respondent Nos. 3
to 9. But this argument is plainly unsustainable because the grada-
tion list has to be prepared in accordance with the principle of
seniority laid down by the Government either statutorily or by
means of an executive order or rule and it is by reference to such
F principle of seniority laid down with th~ Government that the
validity of the gradation list is required to be judged. The grada-
tion list must follow the enunciation of the appropriate principle '·'
of seniority by the Government and no principle of seniority can be
implied from the inter se seniority fixed in such gradation list. That
would be -putting the cart before the horse. If such an argument were
G to prevail, it would mean the end of the law, for the gradation list f
would then not be based on any principle or norm determining
seniority but it would be open to the Government to issue the
gradation list without being fettered by any principle or norm to
·guide it in the preparation of the gradation list.
The question than arises as to what principle must be followed
Udeterminin>, inter se seniority between respondent Nos. 3 to 9.
H
UNION v. H.R. PATAl'IAKAR (Bhagwati, J.) 409
Now admittedly the same year of allotment was assigned to the first A
respondent as also respondent Nos. 3 to 9.and between them, the first
respondent was appointed to the Indian Administrative Service
earliar than respondent Nos. 3 to 9. Moreover, on the date when the
first respondent was appointed to the Indian Administrative Service,
the· principle of seniority which was in force was one set out in the
B
original sub-rule (3) of rule 4 and according to this principle if
respondent Nos. 3 to 9 had been appointed prior to 1Ith April,
1958 but subsequent to the appointment, of the first respondent, the
first respondent would have been entitled to claim seniority over
respondent Nos. 3 to 9. How then, can respondent NoS: 3--to 9 be
assigned seniority over the first respondent when they came to be c
·' appointed subsequent to 11th April 1958. The only fair and just
principle of seniority which can be applied in such a situation, as
between officers directly recruited through a competitive examina-
tion and officers promoted from tile State Civil Service and having
the same year of allotment, is to regard direct recruits though a 0
competitive examination as senior to promotees from the State
Civil Service. We are therefore of the view that the Division
Bench of the High Court was right in holding that the first respon-
dent should be assigned seniority over respondent Nos. 3 to 9 in
the gradation list.
E
We accordingly dismiss the appeal and uphold the judgment
of the Division Bench of the Higp Court, though for different
reasons. We direct that the first r2spondent shall be shown as
senior to respondent Nos. 3 to 9 in the graduation list. There will
be no order as to costs of the appeal.
F
•
N.V.K. Appeal dismissed.