Full Judgment Text
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PETITIONER:
NARENDRA NATH PANDEY & ORS.
Vs.
RESPONDENT:
STATE OF U.P. & ORS.
DATE OF JUDGMENT21/07/1988
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
CITATION:
1988 AIR 1648 1988 SCR Supl. (1) 574
1988 SCC (3) 527 JT 1988 (3) 101
1988 SCALE (2)37
ACT:
Civil Services: Uttar Pradesh Non-Technical (class Il)
Services (Reservation of vacancies for demobilised officers)
Rules 1973/U.P. Non-Technical (class ll/Group B) Services
(Appointment of Demobilised officers) Rules, 1980-Rules 1, 3
and 6/Rule 5-Demobillsed officers from armed forces
recruited in Civil Service-Seniority-Period between
demobilisation and recruitment to Civil Service-Computation
of.
HEADNOTE:
The appellants have been appointed in the U.P. Civil
Service as direct recruits on the basis of competitive
examination held by the U.P. Service Commission. They are
governed by the U.P. Civil Service (Executive Branch) Rules,
1941. The respondents were recruited under the U.P. Non-
Technical (Class-II) Services (Reservation of Vacancies for
Demobilised officers) Rules, 1973 and/or U.P. Non-Technical
(Class-II/Group ’B’) Services (Appointment of Demobilised
officers) Rules, 1980. They were either Emergency
Commissioned officers or Short Service Commissioned Officers
of the armed forces. They were demobilised from the armed
forces in or about 1968. In order to rehabilitate such
persons who rendered services to the country during the
operation of the emergency when the nation’s security was in
peril due to aggression, the 1973 Rules were framed under
the proviso to Art. 309 of the Constitution of India.
In 1976, a seniority list was prepared showing the
respondents as seniors to the appellants on the basis of
their service in the armed forces and the gaps between their
discharge and recruitment in civil service. Similar list was
prepared in 1980 as well. Aggrieved by this, the appellants
moved two writ petitions before the High Court challenging
the validity of the 1973 Rules as also the 1980 Rules. The
High Court held that these Rules were legal and valid and
upheld the validity of the impugned seniority list. These
two appeals by special leave are against the High Court
judgment.
On behalf of the appellants, it was contended that the
High
575
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Court’s interpretation of Rule 6 of the 1973 Rules relating
to seniority and pay was in excess of the relief intended to
be granted by the rule. It was also urged that when a
candidate who was in the armed forces joined civil service,
the assumption should be that he had entered the civil
service at the second opportunity of competing for the
recruitment, but no other period including that between the
discharge and recruitment would be taken into account for
the purpose of computing his seniority.
The contention of the Respondents was that since only
ten per cent of the vacancies were reserved for war service
candidates, it was difficult for them to get a chance within
a reasonable time after their discharge from war service and
it would be quite consistent with rules of natural justice
to take into account the interregnum between the date of
discharge and the date of recruitment in civil service.
Allowing the appeals, this Court,
^
HELD: 1.1. The High Court was right in holding that the
1973 Rules as also the 1980 Rules are quite legal and valid.
However, under Rule 6 of the 1973 Rules or Rule 5 of the
1980 Rules, only a reasonable period of three years for
taking the examination and the time taken for recruitment or
posting would be taken into consideration for the purpose of
computing seniority and pay. [582D-E]
1.2. Under Rule 6 of the 1973 Rules, the recruitment of
a war service candidate will be assumed to have been made in
the year in which he had the second opportunity of competing
for such recruitment, the first being on attaining the
minimum age to compete. It does not provide for the period
between demobilisation and recruitment of a war service
candidate in the civil service. Nor does it forbid
consideration of such period. It cannot, however, he denied
that after the discharge from war service, there will be
some lapse of time for the recruitment of a candidate in the
Provincial Civil Service. There is a question of competing
in the examination. Though Rule 6 does not provide for any
gap to be taken into consideration, it is apparent that some
reasonable period has to be allowed to a candidate to enable
him to avail himself of the opportunity of appearing at the
competitive examination for recruitment in the Provincial
Civil Service. Competitive examinations are generally
difficult and at least two years’ time should be allowed to
a candidate, after his discharge, for his preparation for
the competitive examination and that will be his first
opportunity. The second opportunity will arise in the next
year, that is, in the third year
576
of his discharge from the armed forces. In other words, he
should be allowed three years for competing in the relevant
examination for recruitment in the civil service. Apart from
the three years, the period of time taken for recruitment or
posting will also be taken into consideration for the
purpose of computing the seniority of a war service
candidate. [580H; 581C-H]
1.3. If, however, a candidate does not avail himself of
the opportunity within three years of his discharge from war
service or takes the examination but becomes unsuccessful,
the period between his discharge and subsequent recruitment
will not be taken into account for the purpose of computing
the seniority. [582C]
[This Court set aside the judgment of the High Court
relating to the interpretation of Rule 6 of the 1973 Rules,
quashed the seniority lists of 1976 and 1980, and directed
the State of U.P. to prepare the seniority list within six
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months in the light of this judgment.] [582F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 973-74
of 1985.
From the Judgment and order dated 15.7.1983 of the
Allahabad High Court in Writ Petition Nos. 3532 of 1979 &
357 of 1981.
Dr. L.M. Singhvi, K.R. Nagaraja, R.S. Hegde and C.
Mukhopadhyay for the Appellants.
A.D. Singh, Mrs. S. Dikshit, A.K. Gupta, Raju
Ramachandaran and B.S. Chauhan for the Respondents.
Subhash Chandra, Respondent No. 34 in person.
The Judgment of the Court was delivered by
DUTT, J. These two appeals by special leave involve the
interpretation of the Uttar Pradesh Non-Technical (Class-II)
Services (Reservation of Vacancies for Demobilised officers)
Rules, 1973, hereinafter referred to as ’the 1973 Rules’,
and the Uttar Pradesh Non-Technical (Class-II/Group ’B’)
Services (Appointment of Demobilised officers) Rules, 1980,
hereinafter referred to as ’the 1980 Rules’, relating to the
seniority of the appellants vis-a-vis the private
respondents.
577
The appellants have all been appointed in the
Provincial Civil Service of the State of Uttar Pradesh as
direct recruits on the basis of competitive examinations
held by the Uttar Pradesh Public Service Commission. The
appointments of the appellants were made under the U.P.
Civil Service (Executive Branch) Rules, 1941 framed under
section 241(1)(b) of the Government of India Act, 1935,
hereinafter referred to as ’the Service Rules’.
The respondents were recruited under the 1973 Rules
and/or the 1980 Rules. The respondents were either Emergency
Commissioned officers or the Short Service Commissioned
officers of the armed forces of the Union of India and were
commissioned on or before November 1, 1962 during the
Indo-Chinese war. They were demobilised from armed forces in
or about 1968. These respondents, therefore, rendered
services to the country during the operation of the
emergency when the nation’s security was in peril due to
external aggression. In order to rehabilitate such persons
and to ensure them that in civil life, after the cessation
of emergency, they were not to suffer for rendering services
to the nation and with a view to putting the respondents at
par with other persons, the 1973 Rules were framed by the
Governor of U.P. in exercise of his powers under the proviso
to Article 309 of the Constitution of India.
Rule 1(3) of the 1973 Rules provide that they shall
remain in force for a period of five years from the date of
their commencement. Rule 3, inter alia, provides for the
reservation of ten per cent of the permanent vacancies in
all Non-Technical (Class-II) Services to be filled
substantively by direct recruitment through competitive
examination in any year. Rule 6 relating to seniority and
pay, which is important for the purpose of these appeals, is
extracted below:
"R.6. Seniority and pay-
(1) Seniority and pay of candidates appointed
against the vacancies reserved under sub-rule (1)
of rule 3, shall be determined on the assumption
that they entered the service concerned at their
second opportunity, of competing for recruitment,
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and they shall be assigned the same year of
allotment as successful candidates of the relevant
competitive examination:
Provided that any such candidate who had two
opportunities before the date of his joining the
training
578
prior to his commission whether he actually
availed any A such opportunity or not, shall be
assigned the same year of allotment as successful
candidates of the first competitive examination
held after the said date.
Explanation-The year of a candidate’s second
opportunity will be determined by the date of his
birth in relation to the prescribed minimum age
for competing for recruitment to the service.
(2) Seniority inter se of candidates who are
appointed against vacancies reserved under sub-
rule (1) of rule 3 and allotted to a particular
year shall be determined according to the merit
list prepared by the Ayog on the basis of the
results of their performance at the examination.
(3) All candidates appointed against
vacancies reserved under sub-rule (1) of rule 3
and allotted to any particular year shall rank
below the candidates who were successful at the
competitive examination held for recruitment to
the service in that year.
(4) The pay of candidates appointed against
vacancies referred to in sub-rule (3) of rule 3
shall also be determined in the same manner as
indicated in sub-rule (1) of this rule but their
seniority shall be determined in accordance with
the foregoing sub-rules only if and at the point
of time when they are appointed substantively
against permanent vacancies."
For the purpose of seniority and pay, rule 6 takes into
account the period of war service rendered by a candidate
who, after his demobilisation from such service,
successfully competes in the relevant examination which is
in the present case, the Provincial Civil Service
Examination. Under Rule 6, when such a candidate is
recruited after his successfully competing in the relevant
examination, it will be assumed that he had entered service
with retrospective effect from the year in which he had the
second opportunity of taking the relevant examination for
his recruitment, which he could not take on account of his
having joined the service of the armed forces of the Union
of India.
So far as the actual period rendered by the respondents
in the
579
armed forces during the emergency is concerned, there is no
dispute that such period shall be taken into consideration
for the purpose of computing the seniority and pay. The
grievance of the appellants is that although there were long
gaps between the dates of demobilisation and the dates of
recruitment of the respondents, the State of Uttar Pradesh
had, in computing the seniority of the respondents, taken
into consideration not only the period during which the
respondents were in the services of the armed forces, but
also such long gaps. It is pointed out by the appellants
that in the cases of one or two respondents, the gaps were
even of about 11 years and these long gaps had been taken
into account in computing their seniority. As a result of
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such computation, the respondents after their appointments
were placed above the appellants, although the appellants
were recruited to the Provincial Civil Service under the
Service Rules long before the respondents were recruited. If
such gaps are excluded from consideration, the appellants
will be seniors to the respondents.
It is also alleged by the appellants that several of
the respondents, after coming back from the army, joined
various services, both Government and private services, and
had spent 3 to 10 years or more in those services before
they were recruited under the 1973 Rules or 1980 Rules.
In 1976, a seniority list was prepared showing the
respondents seniors to the appellants on the basis of the
period of their service in the armed forces and the gaps
between their discharge and recruitment. In 1980 also, a
seniority list was prepared in like manner showing the
appellants as juniors to the respondents.
Being aggrieved by the 1976 seniority list, the
appellants moved two writ petitions under Article 226 of the
Constitution before the Allahabad High Court, inter alia,
challenging the validity of the 1973 Rules and also 1980
Rules. The High Court overruled the contention of the
appellants that the 1973 Rules and 1980 Rules were invalid
being violative of Article 14 of the Constitution of India
and held that both these Rules were legal and valid. It,
however, took the view that under rule 6 of the 1973 Rules
or rule 5 of 1980 Rules, which are verbatim the same, the
period during which the respondents had no employment or
were employed elsewhere till recruitment in the Provincial
Civil Service after competing in the relevant examination,
will be taken into account along with the period during
which they were in the services of the armed forces for the
purpose of computing their seniority in the Provincial Civil
Service. Accordingly, the High Court upheld the vali-
580
dity of the impugned seniority list. Hence this appeal.
It is urged by Dr. Singhvi, learned Counsel appearing
on behalf of the appellants, that the interpretation given
by the High Court of rule 6 of the 1973 Rules relating to
seniority and pay is in excess of the relief intended to be
granted by that rule. It is submitted that rule 6 was framed
for the purpose of taking into consideration the period of
service in the armed forces in computing the seniority of a
candidate appointed in the Provincial Civil Service after
competing in the relevant examination, so that he does not
suffer because of joining the armed forces. Rule 6 does not
provide for taking into consideration the gap between the
date of demobilisation of a candidate and the date on which
he is appointed in the Provincial Civil Service after
competing in the relevant examination. If such gaps are also
taken into consideration, it would be doing injustice to the
appellants who have been appointed long before the
respondents. Accordingly, Dr. Singhvi submits that when a
candidate who was in the armed forces of the Union joined
the Provincial Civil Service after his discharge from the
armed forces, it would be assumed that he had entered the
Provincial Civil Service at the second opportunity of
competing for the recruitment, but no other period including
that between the discharge and recruitment will be taken
into account for the purpose of computing the seniority of
such a candidate.
on the other hand, it is submitted by Mr. Anil Dev
Singh and Mr. Gupta, learned Counsel for the respondents,
and Mr. Subhash Chandra, respondent No. 34, appearing in
person, that rule 6 does not prohibit, either expressly or
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by necessary implication, the taking into account of the
period between demobilisation and recruitment in the
Provincial Civil Service. It is submitted that not only the
length of the war service but also such gaps should be
considered for the purpose of computation of seniority. They
submit that as only ten per cent of the vacancies were
reserved for war service candidates, it was difficult for
such candidates to get a chance within a reasonable time
after their discharge from war service and it would be quite
consistent with rules of natural justice to take into
account the interregnum between the date of discharge and
the date of recruitment.
Rule 6 only provides that after the discharge of a
candidate from the armed forces and his subsequent
appointment in civil service on the basis of competitive
examination, it will be assumed that he had joined the
service at the second opportunity of competing for the
recruitment. The second opportunity has been explained in
the Expla-
581
nation to rule 6. It provides that the year of a candidate’s
second opportunity will be determined by the date of his
birth in relation to the prescribed minimum age for
competing for recruitment to the service. For example, if
the minimum age for taking the competitive examination for
recruitment is 21 years, the first opportunity of a
candidate will be in the year he attains that age and the
second opportunity will be in the next year, that is, at the
age of 22 years. Under rule 6, the recruitment of a war
service candidate will be assumed to have been made in the
year in which he had the second opportunity of competing for
such recruitment. In other words, the seniority of such a
candidate will be computed on the basis that he had joined
the civil service in the year of his second opportunity of
competing for the recruitment.
It is true that rule 6 does not provide for the period
between demobilisation and recruitment of a war service
candidate in the civil service. Nor does it forbid
consideration of such period. It cannot, however, be deemed
that after the discharge from war service, there will be
some lapse of time for the recruitment of a candidate in the
Provincial Civil Service. Immediately after discharge, one
cannot get himself recruited in the Provincial Civil
Service. There is a question of competing in the
examination. Rule 6 does not provide for any gap to be taken
into consideration, yet it is apparent that some reasonable
period has to be allowed to a candidate so as to enable him
to avail himself of the opportunity of appearing at the
competitive examination for his recruitment in the
Provincial Civil Service. It cannot be gainsaid that to
compete in the examination, a candidate has to make
preparation for that. Competitive examinations are generally
difficult and, in our opinion, at least two years’ time
should be allowed to a candidate, after his discharge, for
his preparation for the competitive examination and that
will be his first opportunity. The second opportunity will
arise in the next year, that is, in the third year of his
discharge from the armed forces. In other words, he should
be allowed three years for competing in the relevant
examination for recruitment in the civil service.
Even after he becomes successful, he is not recruited
immediately. There is the question of availability of
vacancies and posting. It is common knowledge that some time
is taken for posting. On a proper construction of rule 6,
the period spent by a candidate for competing in the
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examination which, in our opinion, will not be more than
three years, and the period of time taken for his
recruitment or posting will also be taken into consideration
for the purpose of computing the
582
seniority of a war service candidate. Thus, if a candidate
is discharged in the year 1968, he should be given three
years’ time to avail himself of the opportunity of competing
in the examination. Suppose, he is successful in the
examination held in 1971 and posted in 1973. In view of rule
6, he would be deemed to have entered service at the second
opportunity of competing for recruitment and the entire
period from the date of assumed entry in the service up to
his recruitment in 1973 shall be taken into account for the
purpose of computing seniority and pay. If, however, a
candidate does not avail himself of the opportunity within
three years of his discharge from war service or takes the
examination but becomes unsuccessful, the period between his
discharge and subsequent recruitment will not be taken into
account for the purpose of computing the seniority. Rule 6
should be given a reasonable interpretation. We do not find
any reason to interpret rule 6 in a way which will be doing
injustice to the appellants who have been recruited under
the Service rules after competing successfully in the
examination.
We agree with the High Court that the 1973 Rules as
also the 1980 Rules are quite legal and valid. We are,
however, of the view that under rule 6 of the 1973 Rules or
rule 5 of the 1980 Rules only a reasonable period, namely,
the period of three years, required for taking the
examination and the time taken for recruitment or posting,
as discussed above, along with the period of war service,
but no other period, will be taken into consideration for
the purpose of computing the seniority and pay. The impugned
seniority list prepared in 1976 and also that prepared
subsequently in the year 1980 cannot be sustained, as they
have been prepared by taking into consideration the entire
period between the discharge and the recruitment without any
reservation for computing the seniority.
For the reasons aforesaid, we set aside the judgment of
the High Court relating to the interpretation of rule 6 of
the 1973 Rules. The impugned seniority lists of 1976 and
1980 are also quashed. The State of Uttar Pradesh is
directed to prepare the seniority list in the light of the
observations made hereinabove within a period of six months
from date.
The appeals are allowed to the extent indicated above.
There will, however, be no order as to costs in either of
these appeals.
G.N. Appeals allowed.
583