Full Judgment Text
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PETITIONER:
EX. CAPT. K. BALASUBRAMANIAN ETC.
Vs.
RESPONDENT:
STATE OF TAMIL NADU AND ANR. ETC.
DATE OF JUDGMENT14/03/1991
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
SHETTY, K.J. (J)
CITATION:
1991 SCR (1) 845 1991 SCC (2) 708
JT 1991 (2) 562 1991 SCALE (1)481
ACT:
(Constitution of India, 1950: Articles 14, 16--Tamil
Nadu State and Subordinate Service Rules--Fixation of
seniority--Benefit of military service to Emergency
Commissioned Officers/Short/Service Regular Commissioned
Officers--Given to Medical and Engineering Services--Not to
those in non technical services--Whether arbitrary and
discriminatory.)
(Service Law: Tamil Nadu State and Subordinate Service
Rules: Rule 35--Fixation of seniority--Emergency
Commissioned Officers/Short Service Regular Commissioned
Officers--On Re-employment in State Service--Non-Technical
Service-Commercial Tax Officers--Reckoning of seniority--
Giving benefit of military Service--Issue of administrative
instructions--Validity of.)
HEADNOTE:
The appellant/petitioners joined the Army as Emergency
Commissioned Officers in 1963 and were discharged during the
year 1967 to 1970. After their discharge they joined the
Commercial Tax Service under the Respondent-State on
selection by the State Public Service Commission.
It was provided under R.35 of the Tamil Nadu State and
Subordinate Service Rules that their seniority in the
department would be fixed in the order of preference
indicated by the Service Commission and not with reference
to the service in the Armed Forces.
However, in respect of similar candidates who were
appointed as Assistant Surgeons, the government order
provided that their seniority would be fixed by allotting
them the year in which they would have been appointed to the
post at the first possible attempt after the date of joining
military service/training. Thus, the concession of seniority
reckoned with reference to date of appointment in the Army,
which has been extended to Asstt. Surgeons was denied to
similar candidates selected to other services categorised as
non-technical.
On a suggestion made by the Public Service Commission,
the
846
Respondent-State passed orders extending the benefit to the
other services also. The Respondent-State further extended
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the benefit of fixation of seniority to all such candidates
irrespective of their year of recruitment. The appointing
authorities were directed to take steps to refix the
seniority of such officials after issuing notice to all the
affected parties. Accordingly notices were issued, and in
response thereof representations were received by the
Respondent-State, which, after due to consideration decided
not to implement the orders extending the benefits to other
candidates in the non-technical category.
Aggrieved by the said order issued on 3.8.1980 the
affected persons filed Writ Petitions before the High Court.
A Single Judge allowed the Writ Petitions holding that under
orders dated November 16, 1976 and June 15, 1977, which were
passed on the recommendations of the Public Service
Commission,, the petitioners had acquired certain rights in
the matter of seniority and promotion and since the
Government order dated 3.31980 took away the said right of
the petitioners, they should have been afforded an
opportunity of hearing before passing the said order. On
appeal, the Division Bench set aside the judgement of the
Single Judge.
In the appeal and special leave petitions preferred
against the said judgment it was contended that it was
permissible for the State Government to issue administrative
instructions with regard to determination of the seniority
and to remove the lacuna which was found in the existing
rules, viz. discrimination between the Medical/Engineering
service and other services.
Dismissing the matters, this Court,
HELD: 1. Although the Government cannot amend the
statutory rules by Administrative instructions, if the rules
are silent on any particular point, the Government can fill
up the gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed. In the
instant case, it cannot be said that on the date of issue of
orders dated November 16, 1976 and June 15, 1977, the rules
were silent on the matter of fixation of seniority of
persons recruited to the Tamil Nadu Commercial Tax Service.
[852E-F]
(Sant Ram Sharma) v. (State of Rajasthan & Anr.,)
[1968] 1 SCR 111; (Union of India) v. (H.R. Patankar &
Ors.,) [1985] 1 SCR 400 and (State of Gujarat) v. (Akhilesh
C. Bhargav & Ors.) [1987] 3 SCR 1091 referred to.
847
2. There was an express provision in the statutory
rules viz. Rule 35 of the Tamil Nadu state and Subordinate
Service Rules providing that seniority shall be fixed on the
basis of the date of appointment. By orders dated November
16, 1976 and June 15, 1977, the said principle for fixation
of seniority contained in rule 35 was sought to be altered
in respect of Emergency Commissioned Officers/Short Service
Regular Commissioned Officers and the seniority was sought
to be fixed on the basis of a different criterion, namely,
by treating them as belonging to the year in which they
would have been appointed to the posts in their first
possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the
seniority contained in rule 35 and this could only be done
by suitably amending the said rules not by issuing
administrative instructions. The directions contained in
orders dated November 16, 1976 and June 15, 1977 were
invalid being contrary to the provisions contained in Rule
35. Since the said orders were invalid the appellant
petitioners could not claim any right on the basis of the
said orders and there was, therefore, no question of
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affording them an opportunity of a hearing before passing
the order dated March 3, 1980. In so far as appointments to
Medical and Engineering Services are concerned suitable
amendments were made in the relevant Service Rules relating
to those services whereby the benefit of the Army service
was given in the matter of fixation of seniority. No similar
amendment has been made in the rules governing the non-
technical services e.g., Commercial Tax Service to which the
appellant petitioners were appointed. [853C-G]
3. Emergency Commissioned Officers/Short Service
Regular Commissioned Officers who have joined Medical and
Engineering Services of the Respondent-State were
technically qualified in their fields and they had worked in
the Army in the same field in which they are now employed in
the State service. The benefit of the experience gained by
them during the period of their service in the Army on the
post viz. Medical/Engineering held by them was a vailable to
the State when they joined the Medical/Engineering Services
of the Respondent-State. The nature of the duties discharged
by the appellant/petitioners in the Army were different from
the duties they are now required to perform as Commercial
Tax Officers in the State service. It cannot, therefore, be
said that the Emergency Commissioned officers/Short Service
Regular Commissioned Officers who have joined the medical
and Engineering Service of the State and the
appellant/petitioners who have joined the Commercial Tax
Department of the State are persons similarly situated in
the matter of determination of seniority and for counting
their earlier Army Service for that purpose. [854B-D]
848
Union of India & Ors. etc. v. Dr. S. Krishna Murthy &
Ors. etc., [1989] Supp. 1 SCR 275, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2992 of
1986.
From the Judgement and Order dated 22.7.1986 of the
Madras High Court in W.P No 815 of 1985.
T.S. Krishnamurthy Iyer, Miss Purnima Bhat, Atul
Sharma, A.V. Pillai and E.C. Agrawala for the Appellant.
P. Chidambaram, R. Ayyam Perumal, K.C. Dua, V.
Krishnamurthy and R. Mohan for the Respondents.
The Judgement of the Court was delivered by
S.C. AGRAWAL, J. This appeal and the connected
petitions for special leave to appeal are directed against
the common judgment of the Division Bench of the Madras High
Court dated July 22; 1986 whereby the judgement of the
learned Single Judge has been set aside and the writ
petitions filed by the appellant as well as the petitioners
in the special leave petitions (referred to as ’the
petitioners’ for the sake of convenience) have been
dismissed.
The petitioners joined the Indian Army as Emergency
Commissioned Officers (ECOs) in 1963 after the Chinese
aggression. They were discharged from the Army during the
years 1967 to 1970. After their discharge from the Army,
they joined the Commercial Tax Service of the State of Tamil
Nadu on being selected by the Tamil Nadu Public Service
Commission through a competitive examination. For
rehabilitation of ECOs/Short Service Regular Commissioned
Officers (SSRCOs) on their release from the Armed Forces,
the Government of Tamil Nadu had by G.O. ms. No. 84 dated
January 1, 1967, reserved 25% of the vacancies to be filled
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by direct recruitment during the four years 1967-1970 in
respect of certain categories of posts in the State
services. By Order, G.O. Ms. No. 686 dated March 24, 1970,
the Government of Tamil Nadu, in modification of the said
order reserved 25% of the vacancies in non-technical posts
under various groups (both Gazetted and non-Gazetted) to be
filled by direct recruitment during five years commencing
from 1969 for rehabilitation of ECOs/SSRCOs on their release
from the Armed Forces. The said order made provision for
relaxation of age in case of such officers for
849
the purpose of recruitment to be reserved vacancies. As
regards seniority provision was made in paragraph 8 of the
said order which prescribed as under:
Inter-se seniority among the candidates selected
for the reserved vacancies will be determined by
the Commission. So far as the seniority in the
department is concerned, the officers will take
their seniority with reference to the order of
preference indicated by the Commission and not
with reference to the service with the "Armed
Forces".
It appears that in respect of doctors who had joined
the defence forces in connection with the emergency declared
in 1962 and who were subsequently appointed in the cadre of
Assistant Surgeons in the State of Tamil Nadu, the
Government had issued an Order G.O. Ms. No. 2020 dated
September 23, 1965, whereby seniority of such an incumbent
was to be fixed by allotting them the year in which he would
have been appointed to the post at his first possible
attempt after the date of joining military service/training.
The Tamil Nadu Public Service Commission, in their letter
dated February 6, 1973 addressed to the Chief Secretary to
the Government of Tamil Nadu, made a reference to G.O. Ms
No. 2020 Health dated September 23, 1965 with regard to
fixation of seniority of candidates appointed to the post of
Assistant Surgeon against vacancies reserved for ECOs/SSRCOs
and expressed the view that allowing one of released persons
like Doctors to enjoy the concession of their seniority
being reckoned with reference to their date of appointment
in the Army and at the same time denying such a concession
to ECOs/SSRCOs selected to a non-technical post will not be
fair and such differential treatment will not also be in the
interests of rehabilitating released Army personnel. The
Public Service Commission, therefore, commended that the
principle followed in the matter of determining seniority in
respect of released Army Doctor with reference to the date
of their joining duty in the Armed Forces be extended to all
services as recruitment to all the sevices are made on the
basis of the competitive examinations comprising either of a
written test or an oral test or a combination of both. In
the said letter, it was requested that orders in paragraph 8
of G.O.Ms. 686 may be suitably modified. Keeping in view the
aforesaid view expressed by the State Public Service
Commission, the Government of Tamil Nadu passed an order
G.O.Ms No. 25 dated November 16, 1976 whereby, in
supersession of the earlier procedure prescribed for
determining the seniority of the ECOs/SRRCOs recruited for
non-technical posts (both Gazetted and non-Gazetted) against
reserved
850
vacancies in G.O.Ms No. 686 dated March 24, 1970, the
following procedure was prescribed:
"(i) the seniority of the Emergency
Commissioned/Short Service Regular Commissioned
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Officers recruited to the State Civil Services
(both Ghazetted and Non-Gazetted) between
24.3.1970 to 4.10.73 against reserved vacancies
shall be fixed treating them as belonging to the
year in which they would have been appointed to
the posts in their first possible attempt after
the date of joining military service/training."
After the issuance of the aforesaid order dated
November 16, 1976, it was represented to the State
Government that the concession granted to the ECOs/SSRCOs
recruited to the Civil Services of the State instead of
confirming it only to those recruited between 1970 and 1973.
The State Government decided to accede to that request and
issued a fresh G.O.ms No. 734 dated June 15, 1977 whereby
the orders in para 1(i) of the Order dated November 16,
1976 were thus modified:
"1. (i) The seniority of Emergency Commissioned
Officers/Short Service Regular Commissioned
Officers recruited to the non-technical posts
against reserved vacancies shall be fixed treating
them as belonging to the year in which they would
have been appointed to the posts in their first
possible attempt after the date of joining
military duty. In the case of candidates who
joined Military service on or before 30th June of
a year, the year of allotment would be the same;
while in the case of those who joined the Military
services on or after Ist July of a year, the year
of allotment would be the next year."
By the said order, it was also directed that the
appointing authority should take steps to refix the
seniority of the ECOs/SSRCOs recruited to the Civil Services
with reference to instructions after issuing notices to all
affected parties. In accordance with the aforesaid
directions, notices were issued to the other officers whose
seniority was likely to be disturbed in view of the
concession extended to ECOs/SRRCOs under Order dated June
15, 1977. After taking into consideration the
representations received in pursuance of the said notice
851
the State Government issued an Order G.O.Ms. No. 233 dated
March 3, 1980 whereby the orders dated November 16, 1976 and
June 15, 1977 were cancelled. In the said order, it was
stated that:
"The Government have carefully examined the above
representations with reference to the legal
position. They consider that the vested seniority
rights already accused to individuals by virtue of
the rules in force cannot be divested by issuing
fresh rules and giving retrospective effect to
them. The Government have therefore decided not to
implement those orders by amending the special
Rules governing these non technical posts."
The petitioners as well as some other ECOs/SSRCOs filed
writ petitions in the Madras High Court challenging the
validity of the said order dated March 3, 1980. The writ
petitions were heard by a learned Single Judge of the High
Court who allowed the same by his judgement dated December
4, 1984. The learned Single Judge was of the view that under
orders dated November 16, 1976 and June 15, 1977, which were
passed on the recommendations of the Tamil Nadu public
Service Commission, the petitioners had acquired certain
rights in the matter of seniority and promotion and since
the impugned Government order takes away the said rights of
the petitioners, the petitioners should have been afforded
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an opportunity of a hearing before passing the impugned
order which had not been done in this case. Appeals were
filed by the State Government as well as by private
respondents against the said decision of the learned Single
Judge. The said appeals were decided by a Division Bench of
the High Court by its judgment dated July 22, 1976, whereby
it was held that the provision with regard to fixation of
seniority in the cadre of Commercial Tax Officer (CTOs) in
which the petitioners were appointed in governed by Rule 35
of the General Rules which are contained in Part II of the
Tamil Nadu State and Subordinate Service Rules made under
proviso to Article 309 of the Constitution and under the
said rule, seniority is to be fixed on the basis of date of
appointment to the service. the learned Judges found that
the said Rules had not been amended and in the absence of an
amendment in rule 35, the orders with regard to fixation of
seniority of ECOs/SSRCOs contained in Orders dated November
16, 1976 and June 15, 1977 were invalid and no rights could
accure to the petitioners on the basis of the said orders
which may require affording an opportunity to them. With
regard to Doctors and Engineers, the learned Judges have
pointed out that suitable amendments had been made in the
relevant statutory rules relating to both
852
the services. The learned Judges, therefore, while setting
aside the order of the learned Single Judge, dismissed the
Writ Petitions of the petitioners but observed that the
judgment would not prevent the State Government from
amending the Rules made under Article 309 of the
Constitution and if and when rules are made and if any
persons are affected, they are entitled to challenge the
said Rules. Feeling aggrieved by the said decision of the
division Bench of the High Court, the petitioners have
approached this Court.
The first contention that has been urged by the learned
counsel for the petitioners is that the concessions
contained in the orders dated November 16, 1976 and June 15,
1977 were not invalid inasmuch as it was permissible for the
State Government to issue administrative instructions with
regard to determination of the seniority of the ECOs/SSRCOs
and by the said orders which were issued on the
recommendations of the State Public Service Commission the
lacuna which was found in the existing rules was sought to
be removed and that it w as permissible for the State
Government to issue administrative instructions to remove
such a lacuna. In support of the said submission, reliance
has been placed on the decisions of this Court in Sant Ram
Sharma v. State of Rajasthan & Anr., [1968] 1 SCR 111; Union
of India v. H.R. Patankar 7 Ors., [[1985] 1 SCR 400 and
State of Gujarat v. Akhilesh C. Bhargav & Ors. [1987] 3 SCR
1091.
In the above mentioned decisions, it has been laid down
that although the Government cannot amend the statutory
rules by administrative instructions, but if the rules are
silent on any particular point, the Government can fill up
the gaps and supplement the rules and issue instructions not
inconsistent with the rules already framed. in the instant
case, it cannot be said that on the date of issue of orders
dated November 16, 1976 and June 15, 1977, the rules were
silent on the matter of fixation of seniority of persons
recruited to the Tamil Nadu Commercial Tax Service.
Appointment to the said service was governed by General
Rules contained in Part Ii of the Tamil Nadu State and
Subordinate Rules. Clauses (a) and (aa) of rule 35 of the
said General Rules provide as under
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"(a) The seniority of a person in a service, class
or category or grade shall unless he has been
reduced to lower rank as a punishment, be
determined by the rank obtained by him in the list
of approved candidates drawn up by the Tamil Nadu
Public Service Commission or other appointing
authority, as the case may be, subject to the rule
of reservation
853
where it applies. The date of commencement of his
probation shall be the date on which he joins duty
irrespective of his seniority.
(aa) The seniority of a person in a service, class
or category or grade shall, where the normal
method or recruitment to that service, class,
category or grade is by more than one method of
recruitment, unless the individual has been
reduced to a lower rank as a punishment, be
determined with reference to the date on which he
is appointed to the service, class, category or
grade".
This shows that thee was an express provision in the
statutory rules providing that seniority shall be fixed on
the basis of the date of appointment. By orders dated
November 16, 1976 and June 15, 1977, the said principle for
fixation of seniority contained in rule 35 was sought to be
altered in respect of ECOs/SSRCOs and the seniority was
sought to be fixed on the basis of a different criterion,
namely, by treating them as belonging to the year in which
they would have been appointed to the posts in their first
possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the
seniority contained in rule 35 of the General Rules and this
could onlybe done by suitably amending the said rules and it
could not be done by issuing administrative instructions.
The High Court has, in our opinion, rightly held that the
directions contained in orders dated November 16, 1976 and
June 15,1977 were invalid being contrary to the provisions
contained in rule 35 of the General Rules. Since the said
orders were invalid, the petioners could not claim any right
on the basis of the said orders and there was, therefore, no
question of affording them an opportunity of a hearing
before passing the order dated March 3, 1980. In so far as
appointments to medical and engineering services are
concerned, the High Court has pointed out that suitable
amendments were made in the relevant Services Rules relating
to those services whereby the benefit of the Army Service
was given in the matter of fixation of seniority of
ECOs/SSRCOs. who had joined the medical and engineering
services. No similar amendment has been made in the rules
governing the non-technical services, e.g., Commercial Tax
Service to which the petitioners were appointed.
The learned counsel for the petitioners have next
contended that the petitioners have been subjected to
arbitrary discrimination i n the matter of fixation of their
seniority inasmuch as ECOs/SSRCOs who have joined the
medical and engineering service of the Government of
854
Tamil Nadu have been given the benefit of their service in
the Army in the matter of fixation of seniority whereas
similar benefit has been denied to the petitioners even
though the petitioners as well as other ECOs/SSRCOs who have
joined medical and engineering service were all similarly
situate. In this connection, reliance has been placed on the
decision of this Court in Union of India & Ors. ets. v. Dr.
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S. Krishna Murthy & Ors. etc., [1989] Supp. (1) SR 275. This
contention, in our view, is misconceived. ECOs/SSRCOs who
have joined medical and engineering services of the State of
Tamil Nadu were technically qualified in their fields and
they had worked in the Army in the same field in which they
are now employed in the State service. The benefit of the
experience gained by them during the period of their service
in the Army on the posts viz. medical/engineering held by
them was available to the State they joined the
medical/engineering services of the State of Tamil Nadu.
The same cannot be said for the petitioners because the
nature of the duties discharged by them in the Army were
different from the duties they are now required to perform
at CTOs in the State service. It cannot, therefore, be said
that the ECOs/SSRCOs who have joined the medical and
engineering services of the State of Tamil Nadu and the
petitioners who have joined the Commercial Tax Department of
the State are persons similarly situate in the matter of
determination of seniority and for counting the earlier Army
service for that purpose.
In Union of India v. Dr. S. Krishna Murthy, case
(supra), the ECOs/SSRCOs on discharge from the Army had
joined the Indian Forest Service and the Indian Police
Service and provision was made in the Regulation of
Seniority Rules governing these Services whereby it w as
provided that year of allotment of an officer appointed to
the said Service shall be deemed to be the year in which he
would have been so appointed at his first or second attempt
after the date of joining pre-commission training or the
date of their commission where there was only post-
commission training. The validity of the said rules was
challenged by other direct recruits to those Services on the
ground that the ECOs/SSRCOs could not be classified into a
separate category. The said contention was rejected by this
Court and it was held that ECOs/SSRCOs formed a definite
class, distinct from other officers of the Indian Forest
Service and Indian Police Service, and that the said
classification was founded on an intelligible differentia
which distinguishes them from other officers and that the
classification has rational relation to the objects sought
to be achieved by the Rules inasmuch as it has been made for
the purpose of compensating the ECOs/SSRCOs for the lost
opportunity because of their joining the Army service.
855
The said decision may have a bearing in the event of rules
being framed making provision for giving the benefit of Army
service in the matter of fixation of seniority of the
petitioners and other persons who have joined the Commercial
Tax Service of the State of Tamil Nadu. Since there is no
such rule, the petitioners cannot derive any assistance from
this decision.
In the circumstances, we find no ground to interfere
with the decision of the High Court. The appeal as well as
the special leave petitions are, therefore, dismissed but
with no orders as to costs.
G.N.
Appeal and Petitions
dismissed,
856