Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS. ETC. ETC.
Vs.
RESPONDENT:
DR. S. KRISHNA MURTHY & ORS. ETC. ETC.
DATE OF JUDGMENT26/09/1989
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
PANDIAN, S.R. (J)
CITATION:
1989 SCR Supl. (1) 275 1989 SCC (4) 689
JT 1989 Supl. 263 1989 SCALE (2)769
ACT:
All India Services Act, 1954--Indian Forest Service
(Regulation of Seniority) Rules, 1968--Rules 3(2)(d)--Wheth-
er ultra vires--Reservation for ECO and SSCO and year of
allotment fixation--Whether legal and valid.
Indian Police Service (Regulation of Seniority) Rules,
1954 3(3) (c) (d)--Whether ultra vires--ECO and SSCO--Reser-
vation for fixation of year of allotment----Whether legal
and valid.
HEADNOTE:
The grievance of the respondents who have been recruited
to Indian Forest Service and the Indian Police Service is
that although the Emergency Commissioned Officers & Short
Service Commissioned Officers in Short ECOS & SSCOS respec-
tively have been recruited after the respondents yet their
year of appointment has been fixed earlier than the year of
allotment of the respondents under rule 3(2)(d) of the IFS
(Regulation of Seniority) Rules, 1968 & Clauses (c) & (d) of
sub-rule (3) of Rule 3 of I;P.S. (Regulation of Seniority)
Rules, 1954 which is retrospective in operation. The Tribu-
nal struck down the rules as ultra vies of Articles 14 & 16
of the Constitution. Both the High Court and the Tribunal
have taken the view that although Section 3 of the All India
Services (Amendment) Act, 1975 validates the impugned rules
purporting to have been made with retrospective effect, yet
the impugned rules are invalid in as much as they prejudi-
cially, affect the interests of the respondents.
While allowing the appeals and disagreeing with High
Court and the Tribunal, this Court,
HELD: The Tribunal has struck down the impugned rules,
namely rule 3(2)(d) of the Indian Forest Service (Regulation
of Seniority) Rules, 1968 and clauses (c) and (d) of sub-
rule (3) of Rule 3 of the Indian Police Service (Regulation
of Seniority) Rules, 1954 as ultra vires Articles 14 and 16.
Office Memorandum dated January 29, 1966 provides for the
rehabilitation of the ECOS and SSCOs recruited since
276
November 1, 1962 after their release from the Armed Forces.
The contents of the Memorandum are in the nature of execu-
tive instructions. [277D: 282B; 286B]
Although the impugned rules were not in existance in
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1966 the executive instructions as contained in the Office
Memorandum conferred the same benefit as conferred by the
impugned rules. In other words, it is apparent that the
executive instructions have now been adopted as rules framed
under the Act. [286E]
The Released Emergency Commissioned Officers and Short
Service Commissioned Officers (Reservation of Vacancies)
Rules, 1967 framed by the President of India under the
proviso to Article 309 and clause (5) of Article 148 of the
Constitution of India, contained similar provisions as to
the seniority and pay of ECOS & SSCOs. [286F]
No invidious discrimination has been made between the
ECOs & SSCOs on the one hand and the respondents on the
other, both as regard the Indian Forest Service and Indian
Police Service, as contended. [290E]
As soon as it is found that the ECOs and SSCOs have been
classified into a distinct and separate class and that such
classification is reasonable, no objection can be taken to
the year of allotment given to them in accordance with the
impugned rules. Disagreeing with the High Court and the
Tribunal, this Court is of the view that no illegality has
been committed by the Government in framing the impugned
rules with retrospective effect. Held that the impugned
rules are quite legal and valid. [290G-H; 291A]
It is now a settled principle of law that if the statute
under which a rule is flamed does not confer on the authori-
ty concerned the power to make such a rule with retrospec-
tive effect, the authority will have no power to frame any
rule with retrospective effect. [280F]
A. Janaradhana v. Union of India, [1983] 2 SCR 936, referred
to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4068-70
of 1989 etc. etc.
9 From the Judgment and Order dated 26.8.88 of the Cen-
tral Administrative Tribunal, Bangalore in Appln. Nos. 99
1-993 of 1988.
For the appearing parties:
G. Ramaswamy, Additional Solicitor General, Anil Dev Singh,
277
U.R. Lalit, C.V. Subba Rao, T.C. Sharma, Ms. A. Subhashini,
C.S. Vaidyanathan, S.R. Setia, S.R. Bhat, Mrs. V.D. Khanna,
R. Ramachandran, N.B. Bhat, Altar Ahmed, and S.K. Bhattacha-
rya.
The Judgment of the Court was delivered by
DUTT, J.These special leave petitions have been heard at
length and elaborate submissions have been made on behalf of
the parties at the preliminary hearing and, accordingly, we
grant special leave in all these matter and proceed to
dispose of the same on merits.
These appeals have been preferred by the Union of India
and some erstwhile Emergency Commissioned Officers (for
short ’ECOs’) and Short Service Commissioned Officers (for
short ’SSCOs’) and directed either against the judgment of
the learned Single Judge of the Calcutta High Court or
against the judgment of the Central Administrative Tribunal,
Bangalore. The Tribunal has struck down the impugned rules,
namely, rule 3(2)(d) of the Indian Forest Service (Regula-
tion of Seniority) Rules, 1968, hereinafter referred to as
’IFS (Regulation of Seniority) Rules, 1968’, and clauses (c)
and (d) of sub-rule (3) of rule 3 of the Indian Police
Service (Regulation of Seniority) Rules, 1954, hereinafter
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referred to as ’IPS (Regulation of Seniority) Rules, 1954’,
as ultra vires Articles 14 and 16 of the Constitution of
India and has directed the Government of India to assign
fresh years of allotment to the ECOs and SSCOs, who were
some of the respondents before the Tribunal.
Before the Calcutta High Court, rule 3(2)(d) of the IPS
(Regulation of Seniority) Rules, 1954 was involved and the
High Court on a construction of that rule allowed the writ
petition of the respondents and set aside the impugned order
relating to the year of allotment of ECOs and SSCOs.
The period between 1.11. 1962 and 10.1. 1968 is marked
by three events, namely, Indo-Chinese War followed by Indo-
Pakistan War and the proclamation of emergency. These ECOs
and SSCOs voluntarily entered the Armed Forces of the Union
of India at a time when the security of the nation was in
peril due to external aggression. As they were engaged in
defending the country by accepting the war service, they did
not get any opportunity to enter into civil services. The
Central Government assured them that after the cessation of
emergency, they will be rehabilitated in civil life so that
they might not
278
suffer on account of their rendering services to the nation.
The grievance of the respondents who have been recruited to
Indian Forest Service or the Indian Police Service from
State Services is that although the ECOs or SSCOs, have been
recruited in the said All India Services after the respond-
ents, yet their year of appointment has been fixed earlier
than the year of allotment of the respondents.
At this stage, we may refer to the impugned rules. Rule
3(2)(d) of the IFS (Regulation of Seniority) Rules, 1986
provides as follows:
"3(2). The year of allotment of an officer
appointed to the Service shall be--
(a).............................
(b).............................
(c).............................
(d) Where an officer is appointed to
the Service in accordance with rule 7A of the
Recruitment Rules, 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
his commission where there was only post-
commission training according as he qualified
for appointment to the Service in his first or
second chance, as the case may be, having been
eligible under regulation 4 of the Indian
Forest Service (Appointment by Competitive
Examination) Regulations, 1967.
Explanation.--If an officer, who
qualified himself for appointment to the
Service in a particular year, could not be so
appointed in that year on account of non-
availability of a vacancy and is actually
appointed in the next year, then his year of
allotment would be depressed by one year. He
shall be placed above all the officers re-
cruited under Rule 7A of the Recruitment Rules
and who have the same year of allotment."
Rule 3(2)(d) refers to rule 7A of the Recruitment Rules
which provides, inter alia that till January 28, 1974, 20
per cent of the per-
279
manent vacancies in the Indian Foreign Service to be filled
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by direct recruitment in any year shall be reserved for
being filled by ECOs and SSCOs of the Armed Forces of the
Union of India, who were commissioned after November 1, 1962
and who have been-released from the Armed Forces after a
spell of service.
Clauses (c) and (d) of sub-rule (3) of rule 3 of IPS
(Regulation of Seniority) Rules, 1954 provides as follows:
"3(3)(a) ...........................
(d) ............................
(c) The year of allotment of an offi-
cer appointed to the Service in accordance
with rule 7A of the Indian Police Service
(Recruitment) Rules, 1954, 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 his commission where there was
only post-commission training according as he
qualified for appointment to the Service in
his first or second chance, as the case may
be, having been eligible under rule 4 of the
Indian Police Service (Appointment by Competi-
tive Examination) Regulations, 1955.
Explanation.--If an officer, who qualified
himself for appointment to the Service in a
particular year could not be so appointed in
that year on account of non-availability of a
vacancy and is actually appointed in the next
year then his year of allotment would be
depressed by one year. He shall be placed
above all the officers recruited under Rule 7A
of the Recruitment Rules and who have the same
year of allotment.
(d) The year of allotment of an offi-
cer appointed to the Service in accordance
with rule 7A of the Indian Police Service
(Recruitment) Rules, 1954, having been eligi-
ble under the second proviso to sub-regulation
(iii) of Regulation 4 of,the Indian Police
Service (Emergency Commissioned and Short
Service Commissioned Officers) (Appoint-
280
ment by Competitive Examination) Regulations,
1971, 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 his
Commission where there was only post-comission
training and also after the lapse of as many
years as would have been necessary for him to
complete his studies, in the normal course,
for the award of the educational qualifica-
tions prescribed for direct recruitment to the
Indian Police Service according as he quali-
fied for appointment to the Service in his
first or second chance as the case may be."
Both the above rules, namely, IFS (Regulation of Senior-
ity) Rules, 1968 and IPS (Regulation of Seniority) Rules,
1954 have been framed under All-India Services Act, 1954,
hereinafter referred to as ’the Act’. The Act, before it was
amended, conferred power on the Central Government to make
rules for the regulation of recruitment and the conditions
of service of persons appointed to an All-India Services. No
power was, however, conferred by the Act on the Central
Government to frame rules with retrospective effect. The
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impugned rules, namely, rule 3(2)(d) of the IFS (Regulation
of Seniority) Rules, 1968 and clauses (c) and (d) of sub-
rule (3) of rule 3 of IPS (Regulation of Seniority) Rules,
1954 are admittedly retrospective in operation. It is now a
settled principle of law that if the statute under which a
rule is framed does not confer on the authority concerned
the power to make such a rule with retrospective effect, the
authority will have no power to frame any rule with retro-
spective effect. The impugned rules, with which we are
concerned, have been made by the Central Government with
retrospective effect, although there was no such power
conferred by the Act in that regard.
The All-India Services (Amendment) Act, 1975 has been
enacted by Parliament for the purpose of validating the
impugned rules. By section 2 of the Amendment Act, a new
sub-section (1-A) has been inserted after sub-section (1) of
section 3 of the Act, which has been referred to as "the
principal Act" in the Amendment Act. Sub-section (1-A) pro-
vides as follows:
"(1-A). The power to make rules conferred by
this section shall include the power to give
retrospective effect from a
281
date not earlier than the date of commencement
of this Act, to the rules or any of them but
no retrospective effect shall be given to any
rule so as to prejudicially affect the inter-
ests of any person to whom such rule may be
applicable."
The provision for validation is contained
in section 3 of the Amendment Act and it reads
as follows:
"3. No rule made, or purporting to have been
made, with retrospective effect, under section
3 of the principal Act before the commencement
of this Act shall be deemed to be invalid or
ever to have been invalid merely on the ground
that such rule was made with retrospective
effect and accordingly every such rule and any
action taken or thing done thereunder shall be
as valid and effective as if the provisions of
section 3 of the principal Act, as amended by
this Act, were in force at all material times
when such rule was made or action or thing was
taken or done."
The ECOs and SSCOs, who are some of the appellants,
after demobilisation of the military emergency service, have
been appointed in the Indian Police Service and the Indian
Forest Service in 1969. In view of their past service in the
army, which they had voluntarily joined for the defence of
the country during the period between 1.11. 1962 and 10.1.
1968, the impugned rules were framed providing for the year
of allotment of such officers appointed in the Indian Police
Service or in the Indian Forest Service with retrospective
effect from the date they would have been appointed at their
first or second attempt after the date of joining pre-com-
mission training or the date of their commission where there
was only post-commission training. Thus, even if an officer
has been appointed in an All-India Service in 1969 in a
regular manner after being selected on the basis of the
result of the competitive examination in 1969, his year of
allotment will be one or two years after his joining the
pre-commission training in the army service. Suppose, an
officer, after having been selected for the army service,
joined his pre-commission training in 1963. In 1963 he was,
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therefore, eligible for taking a competitive examination for
being recruited to an All-India Service. If he was not
successful, he would get a second chance in the next year,
that is, in 1964. If, after his release from the army in
1968, he took the competitive examination and successfully
competed in such examination and was selected for appoint-
ment in the first chance. according to the impugned rules,
his
282
year of all allotment would be 1963. If he was either not
successful in his first attempt or did not avail himself of
the same, he would have another chance to compete in the
examination for recruitment in an All-India Service in the
next year, that is, in 1969 and if he was successful and
appointed, his year of allotment would be 1964. In other
words, and impugned rules give weightage to ECOs and SSCOs
of the past services rendered by them in the emergency army
service.
It has been already noticed that the Tribunal has struck
down the impugned rules as ultra vires the provisions of
Articles 14 and 16 of the Constitution. According to the
Tribunal, the impugned rules are discriminatory in nature
without any reasonable justification therefore and thus
offends against the provisions of Articles 14 and 16 of the
Constitution. The same contention has been advanced on
behalf of the respondents before us. It has not been disput-
ed before the Tribunal and also before us, that the ECOs and
SSCOs formed a definite class, distinct from the respondents
or other officers of Indian Forest Service and Indian Police
Service. In other words, it is the admitted position that
the classification of ECOs and SSCOs is rounded on an intel-
ligible differentia which distinguishes them from the re-
spondents and other officers of Indian Police Service and
Indian Forest Service. It has, however, been strenuously
’urged that the differentia on which the classification is
rounded is lacking in rational relation to the object sought
to be achieved by the impugned rules and, as such, it does
not satisfy the test of reasonable classification as contem-
plated by Article 14 of the Constitution. This is also the
view of the Tribunal.
We are unable to accept the contention. The impugned
rules have been framed with a view to giving weightage to
the ECOs and SSCOs in recognition of their past services in
the army during the period of emergency. We fail to under-
stand why the classification has no rational relation to the
objects sought to be achieved by the impugned rules. The
classification has been made only for the purpose of compen-
sating the ECOs and SSCOs for their lost opportunity because
of their joining the army service and the impugned rules
best subserve the purpose. Accordingly, we do not think that
there is any merit in the finding of the Tribunal and also
in the contention of the respondents that the impugned rules
are violative of the provisions of Articles 14 and 16 of the
Constitution.
Both the High Court and the Tribunal have taken the view
that although section 3 of the All-India Services (Amend-
ment) Act, 1975 validates the impugned rules purporting to
have been made with
283
retrospective effect, yet the impugned rules are invalid
inasmuch as they prejudicially affect the interests of the
respondents. Much reliance has been placed by the respond-
ents on the provision of the new sub-section (I-A) of sec-
tion 3(1) of the Act as inserted by section 2 of the Amend-
ment Act, 1975. Sub-section (1-A) provides, inter alia, that
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no retrospective effect shall be given to any rule so as to
prejudicially affect the interests of any person to whom
such rule may be applicable. The contention of the appel-
lants is that sub-section (1-A) is itself not retrospective
in operation and, as such, has no application to the im-
pugned rules which are retrospective in operation, that is,
before sub-section (1-A) was inserted in section 3.
It is, however, difficult to accept the contention of
the appellants that sub-section (i-A) is only prospective
and does not apply to the impugned rules which are retro-
spective in operation. It has been already noticed that the
impugned rules have been validated with retrospective effect
by section 3 of the Amendment Act which, in validating any
rule made with retrospective effect under section 3 of the
Act, provides that no such rule shall be deemed to have been
invalid or ever to have been invalid merely on the ground
that such rule was made with retrospective effect and,
accordingly, every such rule and any action taken or thing
done thereunder shall be as valid and effective as if the
provisions of section 3 of the Act (principal Act), as
amended by the Amendment Act, were in force at all material
times when such rule was made or action or thing was taken
or done. In view of section 3, it has to be deemed that
provisions of Section 3, as amended by the Amendment Act,
were in force at all material times when such rule was made.
In view of the provisions of section 3 of the Amendment Act,
sub-section (1-A) which has been inserted in section 3 of
the Act by way of amendment, must be deemed to be in force
at the time the impugned rules were made. But the question
is, even though sub-section (1-A) is deemed to have been
there at the time the impugned rules were framed with retro-
spective effect, whether the impugned rules prejudicially
affect the interests of the respondents.
It is urged on behalf of the respondents that the im-
pugned rules take away the vested rights of the respondents
and, consequently, prejudicially affect their interests.
Accordingly, it is submitted that the impugned rules are
illegal and cannot operate retrospectively in the face of
the provision of sub-section (1-A). This contention does not
at all impress us. The respondents have been given a partic-
ular seniority in accordance with the relevant rules. The
seniority of the respondents is not taken away or interfered
with by the impugned rules. The year of
284
allotment of the respondents remains the same and is not
altered to their prejudice. The impugned rules only provide
for giving weightage to the ECOs and SSCOs for their past
services in the army during the emergency period and their
year of allotment will be determined in accordance with the
impugned rules. It is, however, complained that by giving
the ECOs and SSCOs a year of allotment which is prior to the
year of allotment of the respondents, the respondents have
become their juniors and their (respondents) chances of
promotion are seriously affected.
At this stage, we may also notice the contention of Mr.
Raju Ramachandran, learned Counsel appearing on behalf of
some of the respondents. It is submitted by the learned
Counsel that as the respondents have acquired a particular
seniority, section 3 of the Act as amended, if read as
suggested by the army officers, would contravene the funda-
mental rights of the respondents. This extreme contention is
not sustainable on the face of it, for even assuming that
the seniority of the respondents or their chances of promo-
tion are affected by the impugned rules, surely it cannot be
said that there has been a contravention of the fundamental
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rights of the respondents. Nobody has any fundamental right
to a particular seniority or to any chance of promotion. It
is not the case of respondents that because of the impugned
rules their cases for promotion will not be taken into
consideration by the authorities. The decision in A. Janard-
hana v. Union of India, [1983] 2 SCR 936 has no manner of
application to the facts and circumstances of the instant
cases. In that case, this Court has laid down that it is
open to the Government to retrospectively revise service
rules, it the same does not adversely affect vested rights.
Further, it has been observed as follows:
"After the promotee is promoted, continuously
renders service and is neither found wanting
nor inefficient and is discharging his duty to
the satisfaction of all, a fresh recruit from
the market years after promotee was inducted
in the service comes and challenges all the
past recruitments made before he was born in
service and some decisions especially the
ratio in Jaisinghani’s case as interpreted in
two B.S. Gupta’s cases gives him an advantage
to the extent of the promotee being preceded
in seniority by direct recruit who enters
service long after the promotee was promoted.
When the promotee was promoted and was render-
ing service, the direct recruit may be a
schoolian or college. going boy. He emerges
from the education institu-
285
tion, appears at a competitive examination and
starts challenging everything that had hap-
pened during the period when he has had noth-
ing to do with service."
We have already pointed out that the impugned rules do
not affect the vested rights of the respondents adversely.
In Janardhana’s case, this Court was dealing with the ques-
tion of seniority of promotees vis-a-vis fresh recruits from
the market and observed that when the promotee was promoted
and was rendering service, the direct recruit might be a
schoolian or college going boy. In the instant cases before
us, the dispute is not between promotees and direct re-
cruits, the latter having no past services to their credit.
The ECOs and SSCOs are not in the position of direct re-
cruits, for they have a record of past services in the army
which have been taken into consideration for fixing their
year of allotment in accordance with the impugned rules. So,
Janardhana’s case has no manner of application to the facts
and circumstances of the instant case before us.
It is not that for the first time by impugned rules, the
past services of the ECOs and the SSCOs have been taken into
consideration for the purpose of giving them their year of
allotment with retrospective effect, that is to say, on a
date earlier than their actual appointment in the Indian
Police Service or in the Indian Forest Service, as pointed
out by Mr. G. Ramaswamy, learned Additional Solicitor Gener-
al appearing on behalf of the Government--appellants. The
learned Additional Solicitor General has drawn our attention
to the notings in the Government files for the purpose of
showing the Government policy to rehabilitate the ECOs and
SSCOs in All-India Services, Central Services and State
Services in order to ensure good response and to provide
sufficient incentives for those who offered themselves for
emergency commissions. These, notings start from November
17, 1962. It is not necessary for us to make a particular
reference to the notings in the Government files. Suffice it
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to say that in view of the voluntary offer of services by
the of youngmen our country to defend the country against
foreign aggression, the Government took a very sympathetic
view and took steps to compensate them after their discharge
from the Emergency Commission Service, for the opportunity
lost by them in joining the All-India Services. One thing
which is very significant to be mentioned here that although
their past services were taken into consideration, the
Government did not relax the minimum qualifications required
for the All-India Services. These ECOs and SSCOs had to
appear in the competitive tests held by the Union Public
Service Commission and they were appointed only
286
after they become successful in such tests.
In this connection, we may refer to the Office Memoran-
dum dated January 29, 1966 providing for the rehabilitation
of the ECOs and SSCOs recruited since November 1, 1962,
after their release from the Armed Forces. The contents of
the Memorandum are in the nature of executive instructions,
but such executive instructions were followed and were given
effect. Paragraph 6 of the Memorandum which deals with
seniority and pay reads as follows:
"6. Seniority and pay.
Seniority and pay of those candi-
dates who are appointed against the reserved
vacancies in the All-India and Central Serv-
ices would be determined on the assumption
that they entered service/post at the first
opportunity they had after joining for pre-
Commission training. The principles regarding
fixation of pay and seniority laid down in
this Ministry’s Office Memorandum No. F.
35/11/62 Ests. (E) dated the 6th August, 1963
read with Office Memorandum of even number
dated 15th February, 1965 (copy enclosed) will
apply mutatis mutandis to determine the pay
and seniority of ex-Emergency Commissioned
Officers/Short Service Regular Commissioned
Officers appointed against the reserved vacan-
cies."
Thus, although the impugned rules were not in existence
in 1966, the executive instructions as contained in the
Office Memorandum conferred the same benefit as conferred by
the impugned rules. In other words, it is apparent that the
executive instructions have now been adopted as rules framed
under the Act. Even otherwise, the Released Emergency Com-
missioned Officers and Short Service Commissioned Officers
(Reservation of Vacancies) Rules, 1967, framed by the Presi-
dent of India under the proviso to Article 309 and clause
(5) of Article 148 of the Constitution of India, contained
similar provisions as to the seniority and pay of ECOs and
SSCOs. Indeed, the provision of rule 6 relating to seniority
of pay of ECOs and SSCOs is somewhat similar to paragraph 6
of the Office Memorandum. The date of commencement of the
said rules is significant to be noticed. Under subrule (2)
of rule 1, the said rules shall be deemed to have come into
force with effect from January 29, 1966 which is the date of
the said Office Memorandum. It is, therefore, manifestly
clear that the executive instructions, as contained in the
Office Memorandum, have been
287
incorporated in the form of rules framed under proviso to
Article 309 and clause (5) of Article 148 of the Constitu-
tion of India.
It is, however, submitted on behalf of the respondents
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that in view of the All-India Services (Conditions of Serv-
ice--Residuary Matters) Rules, 1960 (for short ’Residuary
Rules’), the said rules framed under the proviso to Article
309 and clause (5) of Article 148 of the Constitution of
India will not apply to persons appointed to an All-India
Service. The contention, in our opinion, is not correct, for
clause (a) of rule 2 of the Residuary Rules provides that
the Central Government may make regulations to regulate any
matters relating to conditions of service of persons ap-
pointed to an All-India Service for which there is no provi-
sion in the rules made or deemed to have been made under the
Act and until such regulations are made such matters shall
be regulated in the case of persons serving in connection
with the affairs of the Union of India, by the rules, regu-
lations and orders applicable to officers of the Central
Services Class-I. Admittedly, no rules under the Act were
then framed in regard to the seniority of ECOs and SSCOs
and/or granting them weightage for their past war service
and, accordingly, the rules framed under the proviso to
Article 309 and clause (5) of Article 148 of the Constitu-
tion of India applicable to Class-I Officers of the Central
Government were also applicable to ECOs and SSCOs relating
to their seniority in the All-India Services.
It is urged on behalf of the appellants that while the
benefit of weightage is being conferred on the discharged
ECOs and SSCOs way back from 1966, the writ petitions of the
respondents should have been dismissed on the ground of
inordinate delay and laches. In support of this contention,
some decisions have been cited by the appellants. Similarly,
the respondents have also placed reliance on some other
decisions of this Court. We do not think that after the writ
petitions were entertained by the Calcutta High Court and by
the Tribunal and disposed of on merits, it will be proper at
this stage to dismiss the writ petitions on the ground of
inordinate delay or laches. At the same time, it should be
borne in mind that when a particular rule conferring bene-
fits on a particular group of Government servants in recog-
nition of their past services in the army, has been in
operation for over twenty years, this Court will be very
slow to interfere with the rule and deprive such group of
Government servants of the benefits so conferred on them.
This, however, does not mean that this Court will shut its
eyes even though such rules are illegal and are violative of
the provisions of Articles 14 and 16 of the Constitution. He
have, however, held that the impugned rules do not offend
against or infringe the provi-
288
sions of Articles 14 and 16 of the Constitution.
Now, we may consider the contention of Mr. Lalit,
learned Counsel appearing on behalf of the respondents in
the appeal arising out of S.L.P. (C) No. 10105, of 1988.
These respondents were in the State Forest Service before
1966 and, subsequently, absorbed in the Indian Forest Serv-
ice under the Central Government. It is not disputed that
unlike Indian Police Service, the Indian Forest Service was
constituted much later in the year 1966. It is also not
disputed that the respondents were the first batch of incum-
bents or entrants in the Indian Forest Service. It is sub-
mitted on.behalf of the respondents that the Indian Forest
Service was constituted with the respondents as the initial
recruits.
We may now refer to some of the provisions of Indian
Forest Service (Recruitment) Rules, 1966, hereinafter re-
ferred to as ’IFS Recruitment Rules’. Rule 3 of the IFS
Recruitment Rules relates to the constitution of the Serv-
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ice. It provides as follows:
"3. Constitution of the Service.--The Service
shall consist of the following persons, name-
ly:--
(a) Members of the State Forest
Service recruited to the service at its ini-
tial constitution in accordance with the
provisions of sub-rule (1) of rule 4; and
(b) Persons recruited to the service
in accordance with the provisions of sub-rules
(2) to (4) of Rule 4."
So, under rule 3, the Service consists of members of the
State Forest Service recruited to the Service at its initial
constitution and persons recruited in accordance with the
provisions of sub-rules (2) to (4) of rule 4. The next
relevant provision is rule 4. Sub-rules (1) and (2) of rule
4, which are relevant for our purpose, are extracted below:
"4. Method of recruitment to the Service.--(1)
As soon as may be after the commencement of
these rules, the Central Government may re-
cruit to the Service any person from amongst
the members of the State Forest Service ad-
judged suitable in accordance with such regu-
lations as the Central Government may make in
consultation with the State Governments and
the commission;
289
Provided that no member holding a
post referred to in sub-clause (ii) of clause
(g) or rule 2 and so recruited shall, at the
time of recruitment, be allocated to any State
cadre other than the cadre of a Union Territo-
ry.
(2) After the recruitment under sub-
rule (1), subsequent recruitment to the Serv-
ice, shall be by the following methods, name-
ly;
(a) by s competitive examination;
(aa) by selection of persons from amongst the
Emergency Commissioned Officers and Short
Service Commissioned Officers of the Armed
Forces of the Union who were commissioned
after the 1st November, 1962, but before the
10th January, 1968 and who are released in the
manner specified in sub-rule (1) of rule 7A;
(b) by promotion of substantive members of the
State Forest Service."
It appears from sub-rules (1) and (2) that there are
four methods of recruitment. The first method is as con-
tained in rule 4(1), that is, the initial recruits from the
State Forest Service. The other three methods of recruitment
have been provided for in sub-rule (2) including the re-
cruitment of ECOs and SSCOs who were commissioned during the
period of emergency and released in the manner specified in
sub-rule (1) of rule 7A. It is’, however, clear that the
recruits under sub-rule (2) including the ECOs and SSCOs are
recruited after the initial recruits under rule 4(1). Anoth-
er thing to be noticed is that the first examination for
recruitment in the Indian Forest Service was held by the
Union Public Service Commission in 1967.
It is strenuously urged by Mr. Lalit that as the re-
spondents were the initial recruit or, in other words, the
Indian Forest Service having been constituted with them, no
person recruited under rule 4(2) of the IFS Recruitment
Rules can be given seniority over the respondents who are
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the initial recruits. As the Indian Forest Service itself
was constituted in 1966, there is no question of giving
seniority to any recruits beyond 1966. It is urged by the
learned Counsel that the first 1967 after the constitution
of their service, there is also no question of lost opportu-
nity so far as the ECOs and SSCOs are concerned. It is
submit-
290
ted that if such examinations had started to be held from
1962, then it could be said that the ECOs and SSCOs had lost
the opportunity of competing in such examinations in view of
their joining the army. Accordingly, it is submitted that so
far as the Indian Forest Service is concerned, the consider-
ation for giving weightage to the ECOs and SSCOs on the
basis of their past services in the army does not apply.
Attractive though the contentions are, we are unable to
accept the same. It is true that the respondents were the
initial recruits when the Indian Forest Service was consti-
tuted in 1966 and that the other recruits including the ECOs
and SSCOs entered the service after the respondents, but
this fact has very little bearing on the question of fixing
the year of allotment having regard to the past services of
such recruits. The respondents themselves were ’appointed to
the Indian Forest Service in 1966, but they have been given
the year of allotment as ’1964 1/2’, that is to say, long
before the Service came into existence. If it is possible in
the case of the respondents, we fail to understand why it is
not possible in the case of other recruits including the
ECOs and SSCOs. The grievance of the respondents is that the
ECOs and SSCOs having been appointed subsequent to their
appointment or, in other words, they having entered service
after the respondents, they could not be given a year of
allotment prior to that allotted to the respondents. This
contention is again misconceived. So far as the respondents
are concerned, the year of allotment has been granted to
them on the basis of certain principles, as contained in
rule 3 of IFS (Regulation of Seniority) Rules, 1968. The
ECOs and SSCOs are, however, governed by the impugned rules
and their year of allotment has been fixed as ’1964’ which
is prior to the year of allotment of the respondents and,
accordingly, the ECOs and SSCOs are senior to the respond-
ents in the Indian ForeSt Service. In the Indian Police
Service also the year of allotment of the ECOs and SSCOs is
prior to that of those respondents who are in that Service.
We do not think that any invidious discrimination has
been made between the ECOs and SSCOs on the one hand and the
respondents on the other, both in regard to Indian Forest
Service and Indian Police Service, as contended on behalf of
the respondents. As soon as it is found that the ECOs and
SSCOs have been classified into a distinct and separate
class, and that such classification is reasonable, no objec-
tion can be taken to the year of allotment given to them in
accordance with the impugned rules. After giving our anxious
consideration to the respective contentions of the parties
and after considering the different rules and regulations
and also the fact that the ECOs and SSCOs had
291
voluntarily offered their services for the defence of the
country during the period of emergency, disagreeing with the
High Court and the Tribunal, we are of the view that no
illegality has been committed by the Government in framing
the impugned rules with retrospective effect. We hold that
the impugned rules are quite legal and valid.
For the reasons aforesaid, the impugned judgments of the
High Court and of the Tribunal are set aside and all these
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appeals are allowed. There will, however, be no order as to
costs in any of these appeals.
R.N .J. Appeals
allowed.
292