Full Judgment Text
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PETITIONER:
GOVIND DATTATRAY KELKAR & ORS.
Vs.
RESPONDENT:
CHIEF CONTROLLER OF IMPORTS & EXPORTS& ORS.
DATE OF JUDGMENT:
01/11/1966
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
HIDAYATULLAH, M.
SIKRI, S.M.
BACHAWAT, R.S.
SHELAT, J.M.
CITATION:
1967 AIR 839 1967 SCR (1) 29
CITATOR INFO :
R 1974 SC 1 (24)
R 1975 SC 483 (28)
F 1976 SC 490 (33,208)
D 1977 SC 251 (33,35)
RF 1980 SC2056 (73)
F 1984 SC1291 (29)
ACT:
Constitution of India, 1950, Arts. 14 and 16(1)-Promotees
and direct recruits-Fixation of seniority between-
Constitutional validity.
HEADNOTE:
On 30th November 1955, the Assistant Controllers in the
Import and Export Organisation of the Government of India
consisted of 47 officers appointed before 1st January 1952
and 76 departmental promotees appointed between Ist January
1952 and 30th November 1955, all the appointments having
been made on an ad hoc basis. The Union Public Service
Commission objected to the appointments. After some
correspondence the Government decided that the appointments
made before Ist January 1952, should be regularised and that
after that date, there should be 75% direct recruits and 25%
departmental promotees. Pursuant to that agreement the
Union Public Service Commission called for applications and
57 (75% of 76) Assistant Controllers were selected and
appointed by direct recruitment. The Departmental Promotion
Committee considered the cases of those who were already
working as Assistant Controllers and selected 25 officers
out of whom 19 (25% of 76) were appointed. In November
1961, a seniority list of Assistant Controllers was prepared
in which the 19 promotees were placed above the direct
recruits, and later appointees were arranged on the
principle of rotation in the ratio 25 : 75. The effect of
that list was to place the petitioners (some of whom were
working as Assistant Controllers even before the 57 direct
recruits were appointed) after the aforesaid 123 (47 plus
76) appointees. They challenged the list on the following
grounds
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(1)The petitioners were promoted before the new 57
appointments were made, subject to the condition that, they
were approved by the Union Public Service Commission and
that, therefore, the direct recruits could not be placed
over them; (2) the ratio of I : 3 was embodied in the
recruitment rules made, by the Government of India under
Art. 309 of the Constitution only in 1962, and as the rules
were not retrospective,, the seniority list was without any
authority of law and was violative of Arts. 14 and 16; (3)
the ratio was arbitrary and violative of Art. 14; (4) prior
to November 1955, there was only one source of recruitment,
namely by departmental promotion, to the cadre of Assistant
Controllers, and therefore, the decision to relate back the
seniority of the direct recruits to the period between Ist
January 1952 and 30th November 1955, was based on
’reservation for those who were not then in existence, and
amounted to carrying forward of vacancies which was
unconstitutional.
HELD : (1) The petitioners were promoted under orders which
stated that their appointments were made on an ad interim
basis pending selection of the officers by the Union Public
Service Commission. In the context in which the petitioners
were appointed, it was not the, intention of the Government
that they were to be -appointed subject to the approval of
the Union Public Service Commission. The intention
30
of the Government on the contrary was that as the selection
to the posts was impending through the usual channel of the
Union Public Service Commission from all sources of
recruitment, the petitioners should only be promoted on an
ad hoc basis. Therefore, the petitioners had no right to
the posts of Assistant Controllers. [35 B-E]
(2)(a) The recruitment to the 76 posts was made from two
sources with different qualifications, namely, (i) by
promotion from the subordinate staff and (ii) by direct
recruitment. Since the preferential treatment of one source
was based on the differences between the two sources and the
differences have a reasonable relation to the nature of the
office to which recruitment was made, the said ’recruitment
could legitimately be sustained on the basis of a valid
classification. [33 H; 35 If]
(b)Where the recruitment to a cadre was from two sources,
a rotational system would not violate the principle of equal
opportunity enshrined in Art. 16(1). [36 A-B]
Mervyn Coutinho v. The Collector of Customs, Bombay, [1966]
3 S.C.R. 600, followed.
(3)When the recruitment to certain posts is from different
sources, what ratio would be adequate and equitable would
depend upon the circumstances of each case and the
requirements and needs of a particular post. Nothing was
suggested in the present case to show that the ratio of 3 :
I was flagrant or unreasonable. [36 C]
(4)In a case where a service is divided into two parts and
there are two sources of recruitment, one by promotion and
the other by direct recruitment, there is no question of
carrying anything forward from year to year in the matter of
annual intake. when the vacancies that arose between 1952
and 1955 were filled up subsequently, it was not a case of
vacancies being carried forward to the subsequent year or
years. All that happened was, that certain vacancies had
arisen and for certain reasons they were not permanently
filled up, but some ad hoc appointments were made in regard
thereto and subsequently, they were filled up by permanent
appointments. [36 H-37D]
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JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 40 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
H.R. Gokhale, G. L. Sanghi and B. R. Agarwal, for the
petitioners.
Niren De, Addl. Solicitor General, R. Ganapathy Iyer and R.
N. Sachthey, for respondents Nos. 1-3.
N.S. Bindra and K. Baldev Mehta, for respondents Nos. 11,
14 and 27.
The Judgment of the Court was delivered by
Subba Rao, C. J. This writ petition raises the question of
the constitutional validity of the appointment of
respondents 4 to 74 by direct recruitment as Assistant
Controllers of Imports and Exports.
3 1
The relevant facts may briefly be stated. The Imports and
Exports organization came into existence during the Second
World War. It was expected to be a temporary organization
and, therefore, appointments to the various categories in
the said organization were made on an ad hoc basis. In the
year 1949 it comprised the following posts: Chief
Controller, Joint Chief Controller, Deputy Chief Controller,
Assistant Chief Controller of Imports and Exports, Executive
Officers, Licensing Officers and Junior Licensing Officers.
of these the last 3 were Class II posts and the rest were
Class I posts. Subsequently, the posts of Assistant Chief
Controllers were redesignated as "Controllers" and the posts
of Executive Officers, Licensing Officers and Junior
Licensing Officers were converted into one category, namely,
Assistant Controllers, Class 11. In the year 1949 the
appointment of the said officers and their promotions were
governed by the principles enunciated in the Memorandum No.
30/44-48-Appts. dated June 22, 1949 issued by the Government
of India (Ministry of Home Affairs). But, as no rules were
prescribed and the appointments were made on ad hoc basis,
the Union Public Service Commission rightly raised
objections; and after protracted correspondence it was
agreed in 1955 that the appointments made by the Ministry
during 1947-1951 should be regularized on the basis of the
record of work and that in regard to subsequent appointments
there should be a ratio of 25 % for the departmental
promotees and 75 % for direct recruits. Ultimately, on June
13, 1962, the said arrangement was embodied in the
recruitment rules made by the ;Government of India under
Art. 309 of the Constitution.
There are three main categories of employees in the said
department, namely, (i) those appointed prior to January 1,
1952; (ii) those appointed between January 1, 1952 and
November 30, 1955; and (iii) those appointed after November
30, 1955. We are now concerned in this petition with those
appointed after November 30, 1955. Assistant Controllers,
Class 11, are appointed from two sources, namely, by
promotion from the lower cadre and by direct recruitment.
Nothing need be said in this case about the first category,
for their appointments are not in question. In the second
category there were 76 posts available for recruitment. On
the agreed formula of 25% for the department and 75 % for
direct recruitment, 19 posts would go to the departmental
candidates and 57 posts to the direct recruits.
In December, 1955, pursuant to an advertisement issued by
the Union Public Service Commission, 57 Assistant
Controllers were appointed by direct recruitment. After
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consulting the said Commission, the Government of India
fixed the seniority of the Assistant Controllers and
prepared a seniority list dated November 30, 1961.
32
At this stage it may be mentioned that 76 posts to which
recruitment was made were temporarily manned by departmental
promotees. The effect of the new recruitment was that their
position of seniority was disturbed by reason of the
application of the said ratio of 25 % for the departmental
candidates and 75 % for the direct recruits and by reason of
the fact that the direct recruits took precedence over some
of them. On November 30, 1961, the Government of India
prepared a new seniority list and the said seniority list is
given as Annexure ’F’ to the petition. The said list
comprises three categories of officers: the first category
of 47 officers were those that were appointed before January
1, 1952, and whose appointments had been regularized by the
Union Public Service Commission; the second category of
officers are 76 in number comprising of departmental
promotion and the nominees of the Union Public Service
Commission in the ratio of 25 : 75 respectively as laid down
in the recruitment rules,;. and the third category are
departmental promotees and the nominees of the Union Public
Service Commission arranged on the principle of rotation in
the ratio of I : 3. But, in the second category with which
we are now concerned, it appears that the Departmental
Promotion Committee considered the cases of Assistant
Controllers who were working on an ad hoc basis and
selected, on the basis of merit, 25 officers out of whom 19
were adjusted against the said quota of 25 % and these 19
officers were placed above the direct recruits. Serial Nos.
48 to 66 in the list are promotees so selected by the
Departmental Promotion Committee, and serial Nos. 68 to 123
in the said list are direct recruits.
The first petitioner joined the office of the 3rd
respondent, the Joint Controller of Imports and Exports,
Bombay, on April 29, 1946, as an Appraiser. He was promoted
to the post of Assistant Controller with effect from March
31, 1956; that is to say, he has been holding the post for a
period of about 9 years at the time he filed the petition.
The second petitioner Joined the said office on March 5,
1941 and in due course he was promoted to the post of
Assistant Controller with effect from April 1, 1956. He was
also holding the said post for a period of about 9 years at
the time of filing the petition.
The third petitioner joined the said office on May 8 1945 as
a B Grade Clerk and was promoted to the post of Assistant
Controller with effect from September 4, 1956. He had been
holding the said post for about 81 years at the time of
filing the petition.
The 4th petitioner joined the said office on July 28, 1943
as a lower division clerk and in due course he was promoted
as Assistant Controller with effect from November 1, 1961.
But he was reverted to the post of Section Head on June.
14,1963.
3 3
The effect of the new seniority list prepared on November
30, 1961 is that, as the said ratio was applied and as the
direct recruits. were put above the petitioners and others
similarly situated, the Ist petitioner, who should have been
shown at No. 67 in the list but for the new recruitment, was
shown at No. 124; the 2nd petitioner, who should have been
shown at No. 69, was put at No. 132; the 3rd petitioner, who
should have been above all direct recruits,, was not shown
in the seniority list at all; and the 4th petitioner, who
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should have been above all direct recruits appointed after
November 1, 1961 and below the departmental promotees
appointed prior to November 1, 1961, was not shown in the
seniority Est at an.. The petitioners allege that the said
order dated November 30, 1961 fixing the seniority violated
Art. 16 of the Constitution and that they’ should have been
placed above the direct recruits.
Mr. Gokhale, learned counsel for the petitioners, raised
before us the following points: (i) The rules of 1962 were
not retrospective in operation and, therefore, the seniority
list dated November 30, 1961 based on the decision of the
2nd respondent, Union of India, dated July 29, 1961, was
without any authority of law and was violative of Arts. 14
and 16 of the Constitution; (ii) prior to November, 1955
there was only one source of recruitment to the cadre of’
Assistant Controllers and, therefore, the decision to relate
back .the seniority of the direct recruits to the period
between January 1, 1952 and November 30, 1955 being based on
reservations to those who were then not in existence
amounted to carrying forward of vacancies which was held by
this Court to be unconstitutional; (iii) the ratio of 75 % :
25 % between direct recruits and promotees was violative of
Art. 14 of the Constitution and (iv) the appointment of the
officers of the Ministry of Rehabilitation to the posts
reserved for direct recruits through the Union Public
Service Commission violated Art. 14 of the Constitution.
The relevant law on the subject is well settled and does not
require further elucidation. Under Art. 16 of the
Constitution, there shall be equality of opportunity for all
citizens in matters relating to employment or appointment to
any office under the State or to promotion from one office
to a higher office thereunder. Art. 16, of the Constitution
is only an incident of the application of the concept of
equality enshrined in Art. 14 thereof. It gives effect to
the doctrine of equality in the matter of appointment and
promotion. It follows that there can be a reasonable
classification of the employees for the purpose of
appointment or promotion. The concept of equality in the
matter of promotion can be predicated only when the
promotees are drawn from the same source. If the
preferential’ treatment of one source in relation to the
other is based on the differences between the said two
sources, and the said difference& have a reasonable relation
to the nature of the office or offices to,
34
which recruitment is made, the said recruitment can
legitimately be sustained on the basis of a valid
classification. There can be cases where the differences
between the two groups of recruits may not be sufficient to
give any preferential treatment to one against the other in
the matter of promotions, and, in that event, a court may
hold that there is no reasonable nexus between the
differences and the recruitment. In short, whether there is
a reasonable classification or not depends upon the facts of
each case and the circumstances obtaining at the time the
recruitment is made. Further, when a State makes a
classification between two sources of recruitment, unless
the classification is unjust on the face of it, the onus
lies upon the party attacking the classification to show by
placing the necessary material before the court that the
said classification is unreasonable and violative of Art. 16
of the Constitution: see Banarsidas v. The State of. Uttar
Pradesh(1). 411 India Station Masters’ and Assistant Station
Masters’ Association v. General Manager, Central
Railways(2); and The General Manager, Southern Railway v.
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Rangachari(3).
Let us apply the said principles to the facts of the case.
The ,sheet-anchor of the contentions of the learned counsel
for the petitioners was that the petitioners, along with
others, were promoted before the new appointments were made
as Assistant Controllers, subject to the condition that they
were approved by the Union Public Service Commission and
that, therefore, the direct recruits could not be placed
over them either on the principle of aforesaid ratio or on
the principle of rotation and that in doing so the Govern-
ment violated the doctrine of equality. The placing of the
direct recruits over the petitioners and others who had had
long experience as Assistant Controllers, the argument
proceeded, was violative of the doctrine of equality. There
would be much force in this argument had the premises been
correct. But the documents filed demonstrate that it has no
foundation. The promotion of two of the petitioners, Kelkar
and Deshmukh, were made by the Government by Order dated
March 31, 1956; and the other two petitioners were also, it
is not disputed, promoted under similar Orders dated
September 4, 1956 and November I,, 1961. Paragraph 5 of
Order dated March 31, 1956 reads:
"I am to add that the appointments of the
Officers mentioned above have been made on an
ad interim basis pending selection of the
officers by the Union Public Service
Commission".
By that time in November, 1955, the Union Public Service
Commission had advertised for the posts of Assistant
Controllers.
(1) [1956] S.C.R. 357. (2) [1960] 2
S.C.R. 31 1.
(3) [1962] 2 S.C.R. 586.
35
There was also admittedly correspondence between the Govern-
ment and the Union Public Service Commission indicating that
the Union Public Service Commission was questioning the
regularity of the appointments made earlier without framing
rules and without consulting them. With the said background
if the said order is looked into, there cannot be any doubt
that the order in terms as well as in intent made only ad
hoc appointments pending the filling up of the posts through
the Union Public Service Commission. The order says in
terms that the appointment of the officers mentioned therein
were made on an ad interim basis pending selection of the
officers by the Union Public Service Commission. If the
intention of the Government was that the officers mentioned
therein were appointed subject to the approval of the Union
Public Service Commission, the phraseology used would have
been different. It would have run: "the appointments of the
officers mentioned above have been made, subject to the
approval by the Union Public Service Commission". On the
other hand, the word "selection" indicates that the
appointments were only pending selection of the officers to
the posts. To state it differently, as the selection to the
said posts was impending through the usual channel of the
Union Public Service Commission from all the sources of
recruitment, the said officers were promoted on an ad hoc
basis. If that was the intention-we have no doubt that it
was so-it follows that the petitioners and others similarly
situated had no right to the posts of Assistant Controllers.
If that be so, the factual position was that there were 76
vacancies and that the petitioners and others who were
temporarily in charge of some of the said posts were to be
treated as occupying their substantive posts of inferior
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grade. The result was that there were two sources of
recruitment to the 76 posts advertised, namely, (i)by
promotion from non-gazetted posts in the department, and
(ii)by. direct recruitment. The qualifications for both
are different. For direct recruitment as Assistant
Controllers the following are the qualifications: (i) degree
of a recognised university; and (ii) about 5 years
experience in responsible supervisory capacity in Government
service or business concerns. The qualification was
relaxable at the discretion of the Union Public Service
Commission; and experience of work connected with imports
and exports was made desirable. For promotion, the
qualification prescribed was that the candidate should be a
Section Head with a minimum of three years service in that
grade. It will, therefore, be seen that the recruitment was
made from two sources with different qualifications, namely,
(i) by promotion from the subordinate staff; and (ii) by
direct recruitment. It follows that they belonged to two
different categories.
It was then suggested that the ratio of 75% for direct
recruits and 25% for promotion from departmental candidates
was discri-
36
minatory. This point directly arose for consideration in
Mervyn Coutinho v. The Collector of Customs, Bombay.(1).
Therein, this Court accepted the validity of rotational
system where the recruitment to a cadre was from two sources
and held that such a system did not violate the principle of
equal opportunity enshrined in Art. 16(1) of the
Constitution.
But, it is said that if the system of rotation was
necessary, the Government should have applied the ratio of
50:50 and not 75:25. When the recruitment to certain posts
is from different sources, what ratio would be adequate and
equitable would depend upon, the circumstances of each case
and the requirements and needs of a particular post. Unless
the ratio is so unreasonable as to amount to discrimination,
it is not possible for this Court to strike it down or
suggest a different ratio. Nothing has been placed before
us to show that the ratio of 3 : I is so flagrant and
unreasonable as to compel us to interfere with the order of
the Government.
The next argument is that the Government, in effect and
substance, accepted the principle of "carry forward" which
was struck down by this Court in T. Devadasan v. The Union
of India.(2) There certain reservations were made for
recruitment to certain posts for the members of the
Scheduled Caste and Scheduled Tribes; and if the vacancies
reserved for the said Castes and Tribes were not filled up
in a particular year, the Government Order provided for
carrying forward the said vacancies to the subsequent year,
and if in the subsequent year also the said vacancies were
not filled up, they would be carried forward to the next
year and so on. That rule was struck down by this Court on
the ground that the guarantee given under Art. 16(1) was for
each individual citizen and, therefore every citizen who was
seeking employment or office under the State was entitled to
be afforded an opportunity for seeking such employment or
appointment which was intended to be filled up and that the
principle of "carry forward" deprived him of such a right.
This decision has no bearing on the question raised before
us. When a similar argument was advanced in Mervyn Coutinho
v. The Collector of Customs, Bombay(1), Wanchoo. J.,
observed thus:
"Nor do we think that this system (the system
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of rotation) is on a par with the carry-
forward rule, which was struck down by this
Court in T. Devadasan v. The Union of India(2)
and on which strong reliance is placed on
behalf of the petitioners. In the case of the
carry forward rule certain quota is fixed
annually for a certain class of persons and it
is carried forward from year to year. This is
very different from a case where a service
(1) [1966]3 S.C.R. 600.
(2) [1964] 4 S.C.R. 680.
37
is divided into two parts and there are two
sources of recruitment, one of promotion and
the other by direct recruitment. In such a
case the whole cadre of a particular service
is divided into two parts and there is no
question of carrying anything forward from
year to year in the matter of annual intake.
The basis on which the carry-forward rule was
struck down by this Court does not, therefore,
apply to a case where the whole cadre of a
service is divided in certain fixed
proportions between promotees and direct
recruits".
These observations directly apply to the present case. But
it is said that there is a difference between that case and
the present one. It is argued that the vacancies in the
cadre of Assistant Controllers that arose between 1952-55
were filled up subsequently and, therefore, in effect and
substance, those vacancies were carried forward to the
subsequent year or years. This argument, if we may say so,
is fallacious. The vacancies were not reserved to be filled
up in any year nor were they carried forward to subsequent
years. Certain vacancies arose and for certain reasons
they, were not permanently filled up, but some ad hoc
appointments were made in regard thereto and they were
subsequently filled up by permanent appointees. We,
therefore, reject this contention.
In this view the other points raised by learned counsel for
the petitioners need not be considered.
As regards costs, we do not think that this is a fit case
for awarding costs to the State, for, as no rules under Art.
309 of the Constitution were made in time and as
appointments were made on an ad hoc basis without consulting
the Union Public Service Commission, allot of confusion was
introduced in the administrative set up, with the result
that persons who acted as Assistant Controllers for a number
of years had to be superseded by direct recruits. Whether
another formula could have been more equitably evolved is
not for us to say, but the fact remains that the petitioners
cannot be blamed for coming to court for getting their
rights settled one way or other. The petition is,
therefore, dismissed without costs.
V.P.S. Petition
dismissed,
38