Yogeshwar Dayal, J.
(1) This is a petition under Article 226 of the Constitution filed by Shri Devendra Kumar Shukla for a suitably writ for quashing the revised seniority list as on 11-3-1974 in respect of Grade Iii of Indian Supply Service (Class 1) and for directing the Union of India (respondent No. 1) and the Director General of Supplies and Disposals (respondent No. 2) to re-draw the seniority list by showing the petitioner senior to respondents 7 to 29 in the seniority list as on 20-12-1968 and to give to the petitioner all consequential benefits pursuant to the revision of seniority. A writ of mandamus has also been prayed for directing the aforesaid respondents 1 and 2 to confirm the petitioner against the permanent post to which he was appointed.
(2) The Union Public Service Commission is respondent No. 3 (hereinafter called 'the U.P.S.C.').
(3) The petitioner is a direct recruit to the Service known as Indian Supply .Service, Class I (hereinafter referred to as 'the I.S.S.') in Grade Iii and was recruited to the said service as a result of Engineering Services Examination held in September, 1966,
(4) Sarvshri B. A. Shenoy, B. Dev and M.A.B. Chugtai (respondents 4 to 6) were alleged by the petitioner to have been appointed on temporary ad hoc basis with effect from 20th October, 1965, 17th July, 1964 and 2nd September, 1963 respectively as departmental promotees against temporary vacancies on selection to Grade Iii of the I.S.S. (Class 1).
(5) Sarvshri C. C. Dutta, V. Nagaraja, R. C. Chhabra, Maihman Singh, S. K. Mallick, S. L. Kapur, J. P. Mahindroo and T. A. Awatramani, who are respondents 7, 8, 10, 12, 19, 23, 27 and 29, are also departmental promotees selected against temporary vacancies in Grade Iii of the aforesaid Service on various dates allegedly mentioned in the seniority list of Grade Iii of the said Service as en 20-12-1968 (Annexure P/8).
(6) Sarvshri R, G. Badlani, H. L. Aneja, R. V. Patabhiraman. R. C. Mallick, 0. P. Srivastava, A. T. Anis. N. Sheoker. J. K. Srivastava, S. C. Kumar, M. C. Panda, N. K. Malhotra. M. K. Bhatnagar, S. K. Bhattacharya, Shyam Kishore Mallick and N. N. Khamitkar, who arc respondents 9, 11, 13-18, 20-22, 24-26 and 28 respectively, arc. however, direct recruits, recruited, through the U.P.S.C. against temporary vacancies in the examinations held in the years 1964 and 1965.
(7) The material averments of the petitioner in the writ petition arc that the I.S.S. (Class 1) was constituted by the President of India on 9-1-1961 under the proviso to Article 309 of the Constitution of India.
(8) It was averred that the U.P.S.C. issued a notification dated 5-2-1966 inviting applications for recruitment to various services, including the I.S.S. Grade Iii, by a combined competitive examination. The aforesaid notification specified the approximate number of vacancies in the various services/posts for which recruitment was to be made on the basis of this examination and it was advertised that the number of vacancies in I.S.S. was 7, out of which 2 vacancies were permanent and 5 were temporary.
(9) In pursuance of the aforesaid notification, the petitioner made an application on a proforma, copy whereof has been filed (Annexure P/3). It is averred that in accordance with the requirements of this proforma, the petitioner had given 'I.S.S. (Permanent)' as his second preference and had given 'I.S.S. (temporary)' as his eleventh preference. The petitioner secured 24th rank in the combined list of all the services for which the examination was held and because of the petitioner's second preference as that of I.S.S. (Permanent), the petitioner was offered the appointment in Grade Iii of the aforesaid Service by a memorandum of appointment dated 7th December, 1967 which the petitioner ultimately accepted and reported for duty on the forenoon of January 15, 1968.
(10) It was also averred that another officer, Shri S. Koteswar, was also offered a permanent vacancy and some other officers were also offered temporary vacancies. It is averred that the appointment orders of these temporary officers clearly indicated that they were selected for appointment against temporary vacancies and that their appointments would be on temporary basis.
(11) It was further averred that the similar notifications issued by the U.P.S.C. for the 1964 and 1965 examinations had indicated the vacancies in I.S.S. as temporary only and no vacancies were notified as 'permanent' or 'temporary likely to become permanent'. The petitioner also filed copy of proforma of the offer of appointment dated 17-4-1967 (Annexure P/7) made to Shri Mahindra Chandra Panda (respondent No. 21) as an illustration of the terms and conditions on which the direct recruits were offered appointment against temporary vacancies and submitted that similar appointment orders were issued to the other respondents recruited directly through 1964 and 1965 examinations.
(12) It was then averred that the petitioner was appointed on probation for a period of two years. The Director General of Supplies and Disposals (respondent No. 2), hereinafter referred to as 'the D.G.S.&D;' issued a seniority list of Grade Iii posts of I.S.S. as on 20-12-1968 when the petitioner was still on probation (Annexure P/8). In this seniority list a remark was indicated against the name of the petitioner and the other recruit to the permanent vacancy along with the petitioner as 'nominated against permanent vacancy. Seniority will be revised on confirmation'. The petitioner successfully completed his probation on 14-1-1970 and the D.G.S.&D.; by their letter dated 21-4-1970 (Annexure P/9) intimated that the petitioner had completed the probation satisfactorily and is allowed to continue as Assistant Director (Grade 1) beyond the period of probation until further orders.
(13) On receipt of the letter dated 21-4-1970, the petitioner made a representation dated 7-5-1970, requesting for confirmation against the permanent vacancy to which he was appointed. The D.G.S.&D.; vide memo dated 2-6-1970 (Annexure P/11) intimated that the petitioner's case for confirmation against a permanent vacancy in the grade of Assistant Director (Grade 1) will be duly considered as and when clear vacancies for substantive appointments in the grade of Assistant Director (Grade 1) become available after confirmations have been made in higher posts.
(14) On a similar representation being made by Shri S. Koteswar. the petitioner's colleague who was also recruited against permanent vacancy, was however, informed by the D.G.S.&D.; vide their letter dated 3-7-1970 (Annexure P/12) that his case for confirmation will be considered by-the Departmental Promotion Committee along with those of other officers in the next meeting.
(15) The petitioner thereafter made a representation dated 7-1 1-1970 (Annexure P/13) to the Secretary, Ministry of Supply, New Delhi, pointing out that his two years' period of probation had expired and the probation certificate had been issued by the Ministry' of Supply as conveyed through the aforesaid memorandum dated 21-4-1970. It was requested by the petitioner that as per the I.S.S. Rules, confirmation is to be done against the second vacancy which fell due after his date of joining i.e. 15-1-1968. It was also stated that computations have revealed that his claim for confirmation arises against a vacancy with effect from 26-2-1968 but he received no reply.
(16) Another reminder dated 20-11-1970 was sent by him. On 27-11-1970. the D.G.S.&D; vide their memo (Annexure P/15) informed the petitioner that his application dated 7-11-1970 to the Secretary had been forwarded to the Ministry of Supply on 21-11-1970. As the petitioner got no reply, he sent another representation to the Secretary, Ministry of Supply dated 24th December, 1970 (Exhibit P/16) and asked for interview with the Director General. The petitioner was granted interview with the Director General of Supplies & Disposals on 18-2-1971. The petitioner then received reply dated 9th March, 1971 (Annexure P/17) that his representation dated 24-12-1970 has been forwarded to the Ministry of Supply.
(17) The case of the petitioner further is that he made various representations for his confirmation by his letters dated 12-4-1971, 19-8-1971, 6-9-1972 and 26-9-1972 (Annexure P/18 to P/21). The DGS&D; vide their memo dated 18th November, 1972 (Annexure P/22) intimated to the petitioner that his confirmation in Grade Iii of I.S.S. was held over as the Delhi High Court had ordered on 31-8-1971 in a writ petition filed by Shri R. C. Malik (respondent No. 14) that officers junior to Shri R. C. Mallik in Grade Iii should not be confirmed pending disposal of the writ petition.
(18) In the said writ petition, Shri R. C. Malik had challenged the withholding of his promotion by the Department. The writ petition of Shri Malik was dismissed by the Delhi High Court on, 7-3-1973 but no action was taken by the Department of Supply to notify the Petitioner's confirmation and the petitioner sent two reminders dated 7-5-1973 (Annexure P/23) and 27-7-1973 (Annexure P/24).
(19) In the meanwhile, respondent No. 2 issued the impugned seniority list dated 12th March, 1974. In, this seniority list, respondents 4 to 6 were shown senior to the petitioner and in places vacated by respondents 4 to 6, the persons who were shown junior to the petitioner in the 1968 seniority list were shown as his senior. On 19-3-1974, the petitioner made a representation against the seniority list that seven persons namely, Sarvashri Maihman Singh (respondent No. 12), A. K. N. Majumdar, S. K. Mallick (respondent No. 19), S. L. Kapur (respondent No. 23), J. P. Mahindroo (respondent No. 27), T. A. Awatramani (respondent No. 29) and B. B. Tarai, who were shown in the earlier list as junior to the petitioner, have now been shown as senior to the petitioner without any reason being indicated. The petitioner also requested for reasons of supersession and also as to why the remarks appearing against his name in the said seniority list of 1968 have been deleted in the revised seniority list.
(20) A reply was sent to the petitioner dated 29-4-1974 (Annexure P/27) from the DGS&D; where it was pointed out that the Delhi High Court in their judgment delivered on 19-5-1972 in Civil Writ Petition No. 2 of 1971 filed by Shri G. N. Gidwani, an officer of Indian Inspection Service, held that the officers appointed before the constitution of service in January, 1961 should rank en block senior to those who joined the service subsequent to its constitution. On the analogy of this decision the seniority list of Assistant Director (Grade I) in Grade Iii of I.S.S. has been revised, placing officers up to and including Shri C. C. Dutta who were appointed to the service or were approved for appointment to the service by the Departmental Promotion Committee on 17-7-1960 before its constitution as senior to those appointed subsequent to the constitution of service.
(21) It was further intimated that next to the officers appointed as above at the initial constitution i.e. after Shri C. C. Dutta, points have been allocated to the direct recruits and departmental promotees in the ratio of 3 : 1 according to para 9(3) of Recruitment Rules and para 6 of Annexure to the Ministry of Home Affairs O.M. No. 9/11/55 Rps dated 22-12-1959. In this manner of reconstituting the seniority list the points meant for the departmental promotces vacated by the officers of 1960 panel on their inclusion in the initial constitution have been filled up by pushing up departmental promotees from below. All the departmental promotees who joined after the constitution of service have thus improved their position. Shri B. B. Tarai's seniority has been revised because 'there was brought forward reservations to the extent of 2 vacancies for scheduled castes of the beginning of year 1968'.
(22) Regarding the deletion of the remarks appearing against the name of the petitioner in the previous list, it was stated that the Ministry of Home Affairs O.M. No. 1/9/58-RPS dated 16-5-1959 inter alia, lays down that direct recruits appointed to permanent vacancies or vacancies advertised as likely to become permanent will have preference over those appointed against purely temporary vacancies even though the latter may have been recruited earlier. It was pointed out that the above orders make a distinction between permanent vacancies or vacancies advertised as likely to become permanent as against purely temporary vacancies and since temporary vacancies which are notified to the U.P.S.C. from time to time are not purely temporary vacancies but are vacancies which are likely to become permanent, there should be no supersession on this account in confirmation. There is also no provision in the I.S.S. Rules to make any distinction between direct recruits against permanent posts or temporary posts. Hence the remarks 'nominated against permanent vacancy-seniority will be revised on confirmation' have been deleted.
(23) It was then submitted that on receipt of the D.G.S.&D.; memo dated 29th April, 1974, the petitioner submitted several applications during 3-5-1974 to 6-2-1975 requesting the Department of Supply to clarify various points, inter alias relating to the categories of vacancies notified to the U.P.S.C. for I.S.S. 1966 examination. It was also pointed out that the recruitment to the aforesaid I.S.S. in previous years had been made for vacancies either permanent or temporary but were never categorised as vacancies 'temporary but likely to become permanent'. It was also pointed out that the very basis for the petitioner's appointment to the I.S.S. was this distinct categorisation between permanent and temporary vacancies, and the Department of Supply was requested to restore the seniority list as on 20-12-1968 and to notify the petitioner's confirmation. It was also requested that the petitioner may be informed if the departmental promotees whose seniority had been upgraded were appointed on regular basis or ad hoc basis. The petitioner, in one of the aforesaid applications dated 7-8-1974, also brought to the notice of the authorities the implications of the ruling of the High Court in Gidwani's case, mentioned above. The petitioner received a reply dated 13-3-1975 that the matter was under consideration.
(24) On 7-7-1975, the Department of Supply issued a memo declaring the petitioner as quasi permanent with effect from 15-1-1971 in pursuance of rules 3 and 4 of the Central Civil Services (Temporary Service) Rules, 1965 on the same footing as other temporary recruits to the Department.
(25) The D.G.S. & D. on 4-8-1975 again issued the final seniority list which indicated that in the seniority list, the position as on 1-3-1974 would continue except that Shri B. B. Tarai who was assigned seniority above the petitioner in the seniority list issued on 12-3-1974 had been brought back to his original position vis-a-vis the petitioner in the seniority list of 20-12-1968. The petitioner's case regarding the confirmation and upward revision of seniority and restoration of seniority vis-a-vis the other six officers (except Shri D. B. Tarai) as requested for by the petitioner in his representation dated 19-3-1974. mentioned above, was again ignored.
(26) The present petition was filed on 11th August, 1975. After the filg of the writ petition, the Department of Supply issued an order dated 13th August, 1975 conveying the sanction of the President to the creation of 17 supernumerary posts of Assistant Director (Grade 1) (Grade Iii of the I.S.S.) out of which 15 supernumerary posts at Seriall Nos. 1 to 15 were to be created with effect from 27-8-1964 and the other two supernumerary posts at Seriall Nos. 16 and 17 were to be created with effect from 9-9-1964 in the Supply Wing of the Dgs & D for confirmation and adjustment of liens of the 17 Assistant Directors in Grade 1 of Grade Iii of the I.S.S. In this order, the names of Shri B. A. Shenoy, Shri B. Dev, Shri V. R. Subramanyam, Shri M. A. B. Chugtai, Shri S. Ray and Shri C. C. Dutta besides others appear at Seriall Nos. 3,5,7,8,9 and 10 respectively.
(27) Another notification was also issued by the same Department which reads as under :
Ministryof Supply And REHABILITATION
New Delhi, the 18th August, 1975
No. 5/44/70-ESI. The President has been pleased to decide that the following five officers will be deemed to have been appointed to officiate in Grade Iii of the Indian Supply Service, Class-1, with effect from the date of the initial constitution of the Service i.e. 9-1-1961 :
1.Shri B. A. Shenoy.
2.Shri B. Dev.
3.Shri V. R. Subramanyam.
4.Shri M. A. B. Chugtai.
5.Shri S. Ray.
sd/- S. S. Kashetry Under Secretary to the Govt. of India.
(28) Two main questions really arise in the present petition. One relates to the validity of the impugned seniority list as on 11-3-1974 and the other relates to the right of the petitioner's confirmation and as to the date with effect from which the petitioner is entitled to such confirmation. The aforesaid order of the President dated 18th August. 1975 was issued after the filing of the present petition.
(29) The validity of the seniority list as on 11-3-1974 really depends on the question whether Shri B. A. Shenoy, Shri B. Dev and Shri M.A.B. Chugtai, respondents 4 to 6, could be considered or should be considered as having been appointed to the T.S.S. from the date of its initial constitution or not. The aforesaid order dated 18-8-1975 deems them, besides others, as having been appointed to officiate in Grade Iii of the I.S.S. with effect from the date of the initial constitution of the service and if the order dated 18-8-1975 is valid, there could be no doubt that the seniority list as on 11-3-1974 is valid. But since the order dated 18-8-1975 was issued after the filing of the petition, the petition,er during the course of the hearing of the writ petition, filed C.M. 66 of 1977 for leave to amend the writ petition with a view to challenge the validity of the order dated 18-8-1975 in the manner and to the extent mentioned in the aforesaid application. The application was, however, opposed on behalf of respondents I to 3 and respondent No. 8 but as the order dated 18-8-1975 was issued subsequent to the filing of the writ petition, we have decided to allow the petitioner's application (C.M. 66 of 1977) and grant leave to the petitioner to challenge the validity of the aforesaid order dated 18-8-1975.
(30) At this stage, it will be appropriate to consider the replies filed on the record on behalf of various respondents. Joint counter-affidavit to the writ petition was filed on behalf of the Union of India, the D.G.S. & D. and the U.P.S.C. by way of an affidavit of Shri Krishan Lal Kohli, Deputy Director (Administration) in the D.G.S. & D. Separate counter-affidavits were filed by Mr. Nagaraja, respondent No. 8, and Shri R. C. Mallick, respondent No. 14. The petitioner filed separate rejoinder-affidavits in reply to the counter-affidavits filed on behalf of respondent Nos. 1 to 3 and Shri Nagaraja, respondent No. 8. Shri Nagaraja also filed an affidavit dated 6th April, 1976 along with five documents including copy of O.M. F.1/1/55-RPS dated 17-2-1955 from Shri K. N. Subanna, Deputy Secretary, Ministry of Home Affairs to all Ministries of the Government of India (Annexure R. 8-10).
(31) The petitioner filed two applications dated 3-11-1976 (C.M. 1747-w of 1976) and C.M. 22-W/77 dated 7-1-1977, calling for various informations and also for production of the minutes of the Departmental Promotion Committee held on 16-7-1971 and 24-9-1971 with regard to the confirmation of the petitioner and other records, from respondents 1 to 3. In pursuance of these applications, the necessary information had been supplied by respondents I to 3 and all the records have also been produced.
(32) In the counter-affidavit filed on behalf of respondents 1 to 3, it was submitted in reply, inter alia, as under : It was submitted that though the appointment of the petitioner was against a permanent vacancy, he was to be on probation for a period of two years from the date of the anointment just as in the case of candidates who were appointed against temporary vacancies. After the completion of the period of probation and until confirmation thereafter, the services of the petitioner were to all intents and purposes temporary and could be ended at any time by one month's notice given by either side without assigning any reasons. It was also denied that the other 23 officers were offered or recruited against purely temporary vacancies. It was submitted that the I.S.S. is an organized service and there are no 'purely temporary' vacancies in the said Service and the vacancies designated as temporary vacancies are in fact vacancies which are likely to become permanent in due course of time. The 23 officers referred to in para 14 of the petition were appointed against temporary vacancies 'likely to become permanent'. The Ministry of Home Affairs memorandum No. .1/9/59- Rps dated 16th May, 1959 makes it clear that the vacancies likely to become permanent had been equated with permanent vacancies. The appointment of these 23 officers was also to be on probation for a period of 2 years. It was submitted that the fact that the said vacancies were not purely temporary in nature, but were vacancies likely to become permanent is further borne out by the fact that the officers recruited against the temporary vacancies were also put on probation for a period of 2 years and the channel of confirmation and retention in service was to be the same as that of officers recruited against permanent vacancies. Regarding the two permanent and the five temporary vacancies notified in the U.P.S.C.'s notice dated 5-2-1966 in pursuance of which the petitioner was selected, it was stated that the five vacancies notified as temporary vacancies were in fact temporary vacancies likely to become permanent. The vacancies which are notified to the U.P.S.C. from time to time as temporary arc 'not purely temporary but are vacancies which are likely to become permanent in due course. It was further submitted that both sets of officers, i.e. those appointed to permanent or temporary vacancies, are to be on probation for a period of two years. On completion of 'he probation period and on the basis of the availability of the vacancies, their cases arc considered on merit by the Departmental Promotion Committee for confirmation. The person appointed against a vacancy notified :o the U.P.S.C. as permanent, does not get a better right of confirmation vis-a-vis the other candidates recruited earlier against temporary vacancies likely to become permanent. It was admitted that respondents 9, 11, 13, 14. 15. 16. 17. 18, 20, 21, 22, 24, 25, 26 and 28 are direct recruits but were uppointed against temporary vacancies about to become permanent on the basis of 1964 and 1965 examinations. It was also admitted that the petitioner was appointed against a permanent vacancy on the basis of 1966 examination; but the respondents having been appointed against temporary vacancies about to become permanent earlier than the petitioner and having the same rights as the petitioner, would naturally be confirmed prior to the petitioner and would rank senior to him. It was further submitted that at the time of the constitution of 'the I.S.S. there were 48 posts of Assistant Directors, Grade I, against which 43 officers have been appointed under notification dated 23-6-1961 and 7-7-1961. There were thus five clear vacancies available after the issue of notification relating to the initial constitution of the Service. A panel of nine officers had been approved by the Departmental Promotion Committee in its meeting held on 17-5-1960 for promotion to the post of Assistant Director (Grade I) before the constitution of the Service. In the case of Shri G. N. Gidwani v. Union of India, it was submitted, this Court had held that the persons appointed to the Service at the time of its initial constitution should rank en-block senior to those appointed after the constitution of the Service. Out of the nine officers approved by the Departmental Promotion Committee for appointment to Assistant Director (Grade I) prior to the constitution of the said service, three officers were available at the time of the initial constitution of the Service. The remaining 6 officers were on deputation to other departments or working in Purchase Missions in London or Washington. These officers were formally appointed as Assistant Director (Grade I) on their return to the Service from deputation posts (except Shri Narinder Gupta who did not return from his deputation post) and they were adjusted against five clear available vacancies. In view of the judgment in Gidwani's case, all these 8 officers were shown as having been appointed at the time of initial constitution of Service and were placed en-block senior to those appointed after the constitution of the Service and the seniority list was amended accordingly. It was next submitted that respondents 4, 5 and 6 are amongst those 8 officers. So is respondent No. 7 but he had in fact been appointed before the initial constitution of the Service though junior to respondents 4, 5 and 6 and these respondents 4 to 6 have been rightly shown senior to the petitioner. It was also submitted that according to rule 9(3) of the Indian Supply Service Rules, 75 per cent vacancies in Grade Iii have to be filled up by direct recruitment and the remaining 25 per cent including the deputation quota by promotion. The note below rule 9 further states that for every 4 vacancies, the first 3 shall be filled by direct recruitment and the fourth vacancy by promotion. Thus, the ratio between, direct recruits and departmental promotees is 3:1. It was submitted that when the above mentioned 8 officers were shown to have been appointed at the time of the initial constitution of the Service, the seniority list was amended accordingly. In the revised seniority list, these 8 officers secured higher place on account of their having been appointed at the time of the initial constitution of the service and being placed en-block senior. Because of the revision of the seniority list, the ratio of 3:1 between two types of recruits was disturbed. In order to restore the ratio, departmental promotees were moved up to fill the places vacated by these 8 officers in the seniority list. Respondents 8, 10, 12, 19, 23, 27 and 29 are those departmental promotees who were moved up in the seniority list in order to restore the disturbed ratio of 3:1 and they accordingly ranked senior to the petitinoer. This is the sum and substance of the averments contained in the reply of respondents 1 to 3 in relation to the seniority list as On 11-3-1974.
(33) Regarding the confirmation, the plea of respondents 1 to 3 was that the petitioner was clearly informed that his case for confirmation against a permanent vacancy would be duly considered when a clear vacancy became available. There was no commitment made to the petitioner at any stage that he would be confirmed against the first or any other specific permanent vacancy. It was submitted that the petitioners case along with that of others who were in the zone of confirmation in the grade of Assistant Director, Grade I, was considered by the Departmental Promotion Committee in its meetings held on 16-7-1971 and 24-9-1971. However, the recommendations of the Departmental Promotion Committee could not be implemented on account of the stay order issued by this Court in the case of R.C. Mallik v. Union of India and others (C.W. 5881 of 1971) wherein this court had ordered that pending disposal of Shri Mallik's petition, the officers junior to Shri Mallik should not be confirmed. The petitioner being junior to Shri R, C. Mallik could not be confirmed in these circumstances. The writ petition of Shri Mallik was dismissed by this Court on 7th March, 1973. and thereafter the petitioner had been informed that 553 India And Others his confirmation would be considered only if a clear vacancy becomes available. It was further submitted that before the disposal of the writ petition filed by Shri R. C. Mallik, this Court delivered another judgment in a writ .petition filed by Shri S. C. Anand against the Union of India (C.W. 568 of 1971). This writ petition related to the appointment of certain officers of the Indian Inspection Service. The Indian Inspection Service, Class I, and the I.S.S. were both constituted on 9-1-1961. The Cadre authority for both the services is the Department of supply and the recruitment rules relating to both the services are also identical. In view of this position, it was decided that the orders of this Court in the writ petition filed by Shri S. C. Anand should be made applicable in case of officers belonging to the I.S.S. also. In view of this position, it was submitted that although the writ petition filed by Shri R. C. Mallik had been finally dismissed on 7-3-1973, yet the action to implement the recommendations of the Departmental Promotion Committee in regard to the confirmation of officers in the grade of Assistant Director, Grade I of the I.S.S. were held in abeyance. The cases of Shri R. N. Ghosh and Shri V. S. Chawla mentioned by the petitioner in para 29 of the writ petition were sought to be distinguished on the ground that they had been recruited on the basis of 1963 examination against permanent posts and were confirmed after the completion of the probation period. It was denied that the permanent vacancy existed on 15-1-1968 and that the petitioner had a right to be confirmed with effect from the said date. The appointment letter of the petitioner clearly mentioned that the petitioner was appointed on probation for a period of 2 years and on completion of the period of probation, if considered fit for permanent appointment, will be confirmed subject to availability of permanent post. The petitioner could be considered for confirmation when the permanent vacancy is available.
(34) The counter-affidavit filed on behalf of respondent No. 8 is also on the same lines as that filed on behalf of respondents 1 to 3 but is more detailed vis-a-vis the circumsta'nces in which respondents 4 to 6 are entitled to be considered as officers who were appointed to the Service from the date of its initial constitution.
(35) The averments of respondent No. 8 in the counter-affidavit are, inter alia, as under : The I.S.S. was constituted on 9th January, 1961. On the constitution of the said service, all officers holding any of the posts mentioned in schedule I of the I.S.S. Rules, whose appointments, where 554 it was so necessary, had been through or with the approval of the U.P.S.C. became eligible for appointment in the posts mentioned in schedule to the Iss Rules, 1961. Accordingly, a notification dated 7-7-1961 was issued by the concerned Ministry by giving a list of officers who were so included in the said service, on its initial constitution. Respondents 4, 5 and 6 had held the post mentioned in schedule I to the I.S.S. Rules immediately before its constitution and were thus eligible for appointment to the said service on its initial consstitution. The said respondents were away on deputation and their names were erroneously omitted from the list of officers gazetted on 7-7-1961. Shri C. C. Dutta (respondent No. 7) was the last name mentioned in the aforesaid list dated 7-7-1961. Respondents 4, 5 and 6 were senior to Shri C. C. Dutta but their names should have figured above Shri C.C. Dutta. At the end of their deputation period, they came back to their parent service and served in the I.S.S. In law, all these officers should be deemed to have been included in the said list dated 7-7-1961 and they were entitled to seniority on the basis of the positions they held before the constitution of the said Service. The inter se seniority between the said respondents and others who were in service on or before 9-1-1961 remained unaffected by the I.S.S. Rules, 1961. The allegation that Shri C. C. Bajaj, Shri Subarathnam and Shri C. C. Dutta were holding employment on an 'ad hoc basis' only, at the initial constitution of the service is not correct. The said three officers, it was submitted, had been promoted regularly against regular vacancies on approval by the Departmental Promotion Committee on 17-5-1960. Thus, the contention that they should not have been shown as officers holding appointments at the initial constitution of the service is untenable. . It is submitted that as regards Shenoy (respondent No. 4). B. Dev (respondent No. 5), Chugtai (respondent No. 6), and S. Ray,, these officers had been approved by the Departmental Promotion Committee on 17-5-1960 along with Shri C. C. Dutta for promotion and that out of the said respondents. Shri Shenoy actually took over the post to which he was promoted, in June, 1960. Since all these officers belonged to the Supply Service and the posts they held were posts mentioned in Schedule I of the I.S.S. Rules and as their promotions had been approved by the Departmental Promotion Committee with which the 555 India And Others U.P.S.C. was associated, they were eligible and had the right to be appointed to the service on its initial constitution. The mere fact that their names, though required to be, were not shown in the final gazette notification dated 7-7-1961 listing the names of officers appointed to the said service on its initial constitution, could not have the effect of depriving them of their deemed appointment to the said service. The fa'ct that their names had been omitted in the first list due to some error is apparent from the fact that in the very first seniority list issued by the Department in respect of the members of the said service in 1962, the names of all those officers were shown in the said seniority list and at appropriate places allotted to them. The absence of their names in the list of officers published on 7-7-1961 would not mean that they were not members of the said service or that the Department did not consider them as members of the said service on its initial constitution. The names of all these officers have thereafter appeared regularly in the seniority list published from time to time even when they were on deputation. It was submitted that the right of an officer to be appointed in the service on the date of its initial constitution, is not determined by the list of officers dated 7-7-1961 but the validity of the said list is determined by the fact whether or not all those who should have been included in the said list were or were not so included therein in accordance with the T.S.S. Rules. The submission of the petitioner that the inclusion of the aforesaid 8 officers or at least five of them in the initial constitution of the service was not warranted by the sanctioned strength of the service as its initial constitution was denied. It was submitted that even if by including the names of the said five officers in the list of the officers at the time of the initial constitution of the service and thereby the initial strength was exceeded, it was submitted that the said fact would be inconsequential and could not give any cause of action to the petitioner. Reliance was specifically placed in the counter-affidavit of respondent No. 8 on the aforesaid notification dated 18-8-1975 and also on the decision of the President dated 13-8-1975 creating 17 supernumerary posts of Assistant Directors, Grade I. It was submitted that the aforesaid Presidential sanction/orders came to be made to rectify the errors, if any, committed by the Department in the discharge of statutory duties under the Rules and were justified in view of the Government Decision No. 2 with regard to F.R. 9(22), and the Memorandum of the Ministry of Home Affairs No. 12-3-69/Est. (D) dated 18th July, 1970.
(36) Giving further details as to how the Presidential sanctions and orders dated 13-8-1975 and 18-8-1975 came about, it was submitted, inter alia, as under :
(A)On the initl constitution of service, there were 48 clear vacancies of Assistant Director (Grade 1) i.e. Grade IIIl of the reconstituted service.
(B)Against these 48 clear vacancies, there were only 39 incumbents, leaving 9 clear vacancies, as on 17-5-1960.
(E)The Dpc approved on 17-5-60, the following nine officers, who were holding the posts of Assistant Directors Grade (permanent) and in the following order : (1) Mr. Shenoy (respondent No. 4). (2) Mr. G. C. Bajaj. (3) Mr. Narinder Gupta. (4) Mr. B. Dev (respondent No. 5). (5) Mr. Subarathnam. (6) Mr. Subramaniam. (7) Mr. Chugtai (respondent No. 6). (8) Mr. S. Ray. (9) Mr. C. C. Dutta (respondent No. 7).
(D)Out of these 9 officers only the following four officers were available in the Department and actually took over as Assistant Directors Grade I w.e.f. the dates mentioned as follows : (1) Mr. Shenoy (respondent No. 4) June, 1960. (2) Mr. Bajaj-August, 1960. (3) Mr. Subarathnam-September, 1960. (4) Mr. C. C. Dutta, October, 1960.
(E)The other five officers who were on deputation are : (1) Mr. Narendra Gupta. (2) Mr. B. Dev (respondent No. 5). (3) Mr. Subramaniam. (4) Mr. Chugtai (respondent No. 6). (5) Mr. Ray.
(F)Mr. Shenoy also went on deputation in November, 1960.
(G)Shri Shenoy, Bajaj. Subarathnam and C. C. Dutta, took over the appointments though their names figure at Seriall Nos. 1, 2, 5 and 9 respectively in the D.P.C. list of 17-5-60, because the other five officers, who ranked higher in the said list, were away on deputation.
(H)In fact, there were in existence nine clear vacancies. All the none officers aforesaid having been duly approved by the D.P.C. they would have taken over the appointments in the aforesaid nine clear vacancies, but for the fact that five of them were on deputation. Those junior to the five officers on deputation, or others recruited or promoted as Asstt. Directors, Grade I after 9-1-1961, cannot claim precedence or seniority over the aforesaid five officers for the reason that the said five officers selected were temporarily on deputation. For all intents and purposes, all the said nine officers, should be and were deemed to have been validly appointed as Assistant Directors Grade I, inter alia, for the reason that they were approved by D.P.C. on 17-5-60 against clear vacancies and they would have held those posts, but for their temporary absence on deputation those junior to them in the said D.P.C. list got their promotion. Even otherwise, those on deputation were actually allowed to and they did take over the said clear vacancies on their return to the parent Department on termination of the deputation.
The five appointments notified on 18-8-1975 concern officers Who were on deputation to I.S.M. London/Washington and Public Undertakings at the time of formation of the service and would have held the post of Assistant Director, Grade I, i.e. Grade Iii of the I.S.S. before the formation of the service but for their deputation. Even if the Department had offered the existing vacancies to other officers junior to the aforesaid officers, instead of keeping them vacant and hence available to them on their return, the said five officers could have in any event been entitled to protection of the 'Next Below Rule' prevailing, both in regard to pay and seniority as also with regard to the promotion, officiating or otherwise to which they would have been entitled to had they not proceeded on deputation.
(37) The respondent along with his counter-affidavit filed various decisions and memoranda regarding 'Next Below Rule' dated 20-2-1936, 17-2-1955 and 17-10-1960 filed as Annexures R. 8-5 and R. 8-10 and R. 8-6. It was thus submitted that the aforesaid five officers could not but be deemed to have been duly appointed as Assistant Director, Grade I befo the date of the constitution of the service and, thereforee, in terms of rule 6 of the Rules be deemed as members of the said service at its initial constitution under the said Rules. The formal order the President dated 18-8-1975, thereforee, merely formalised the correct position vis-a-vis the said five officers. The said notification of 18-8-1975 is in discharge of the statutory duty which ought to have been performed by the Union of India much earlier. Along with the counter-affidavit, respondent No. 8 filed the seniority list of Grade III/Assistant Director, Grade I issued on 21-9-1962, 1-11-1963 as Annexures R. 8/1 and R. 8/9. The counter-affidavit of respondent No. 8 thereafter deals with the scheme of the I.S.S. Rules, 1961 and the notifications and the memoranda issued by the Ministries regarding seniority and confirmation. They need not be recapitulated here as they will be discussed a little later.
(38) The difference in the affidavit on behalf of respondents 1 to 3 and respondent No. 8 is that whereas the affidavit of respondent No. 8 states that in pursuance of the selection by Departmental Promotion Committe made on 17-5-1960, Shri Shenoy, respondent No. 4, in fact took over as Assistant Director, Grade I, in June, 1960 and then again proceeded on deputation, the affidavit of respondent Nos. 1 to 3 is silent in this respect. The case of respondent Nos. I to 3 is that Shri Shenoy who was on deputation took over on 20-12-1965 after return from deputation as Assistant Director, Grade I we have no affidavit of Shri Shenoy before us, nor any order of June, 1960 as alleged by respondent No. 8 and in these circumstances we have decided to go by the averments of the petitioner as supported by the averments in the affidavit made on behalf of respondents I to 3 and we proceed on the basis that Shri Shenoy, respondent No. 4, took over as Assistant Director, Grade I of the I.S.S. on 20-12-1965, Shri B. Dev respondent No. 5 and Shri Chugtai, respondent No. 6 on 17-7-1964 and 2-9-1963 respectively. We are informed that Shri Subramaniam and Shri S. Ray who took over on 14-2-1962 and 16-8-1962 have since retired and, thereforee, their cases need not be considered.
(39) We may now proceed to determine the two main questions noticed earlier which arise for determination in the present writ petition. We first deal with the question relating to seniority and later on with the question relating to the right of the petitioner to confirmation and as to the date with effect from which the petitioner is entitled to such confirmation.
(40) As we have noticed earlier, the validity of the seniority list as on 11-3-1974 really depends on the question whether respondents . to 6 could be considered or should be considered as having been appointed to the I.S.S. from the date of its initial constitution or not. We have also noticed the order of the President dated 18-8- 1975 which deems them, besides others, as having been appointed to officiate in Grade Iii of the I.S.S. with effect from the date of the initial constitution of the service and it is common case of the parties that if the order dated 18-8-1975 is valid then the seniority list framed as on 11-3-1974 would also be valid.
(41) This common case of the parties is based on the judgment of this Court in the case of G. N. Gidwani v. Union of India and others : (C.W. 2 of 1971 decided by Division Bench on 19-5-1972) (1). That case related to interpretation inter alias of rule 6 of the Indian Inspection Service (Class 1) Rules, 1961 (hereinafter called 'the I.I.S. Rules'). Though in Gidwani's case, the main controversy was as regards inter se seniority between those who were appointed at the initial constitution of the service and those who were appointed subsequently by direct recruitment but while interpreting rule 6 and the other rules of the I.I.S. Rules, the Division Bench took the view that those who were appointed at the initial constitution of the service ranked on block senior to those who were appointed after the constitution of the service. The I.S.S. Rules with which we are concerned and the I.I.S. Rules are in pari materia and, thereforee, once it could be decided whether respondents 4, 5 and 6 are to be taken as those officers who became members of the service at its initial constitution, the controversy will resolve itself.
(42) Since the notification dated 18-8-1975 deems these officers as having been appointed with effect from the date of its initial constitution i.e. from 9-1-1961, Mr. B. N. Kirpal made the following submissions to challenge the validity of this notification :
(1)that after the statutory rules under Article 309 of the Constitution have been framed, appointments can only be made in compliance with the Rules-rules 6, 10 and 14(2) of the I.S.S. Rules,
(2)that rule 6 of the I.S.S. Rules gives no power to make retrospective appointments;
(3)that in view of the statutory rules, the administrative rule, known as 'Next Below Rule' is not applicable. In any case, the administrative 'Next Below Rule' is not applicable ;
(4)that after the rules have come in,to force, promotions can only be made in accordance with rule 14 which requires consultation with the U.P.S.C. and in this case no such consultation took place when the impugned notification was issued;
(5)that this notification violates the sanctioned strength of the service fixed by Schedule I of the Rules and by violating it the person so appointed cannot be given benefit of the Rules.
(43) For appreciating these submissions, it is necessary to examine the I.S.S. Rules as well as the basis and meaning of the rule known as 'Next Below Rule'. On 9-1-1961, the I.S.S. Rules were made by the President of India under Article 309 of the constitution of India. The said Rules were divided into seven parts and had two schedules at their end. Part I was given the heading 'GENERAL' and consists of rules I and 2 dealing with 'short title and commencement' of the rules and 'definitions'. Part Ii is given the heading 'Constitution of the Service' and consists of rules 3 to 7. Part Iii was given the heading 'Methods, of recruitment' and consists of rules 8 and 9. Part Iv was given the heading ' recruitment by competitive examination' and consists of rules 10 to 13. Part V deals with 'recruitment by promotion' and consists of only one rule, namely, rule 14. Part Vi deals with 'appointments by deputation and transfer of officers'. Part VI-A gives the general power of relaxation to the Central Government to relax any of the provisions of the Rules with respect to any class or category of persons. Part Vii deals with 'Recruitment by ad hoc advertisement and selection through the Commission' which contains rule 16 followed by the two Schedules. Rule 3 of the said I.S.S. Rules constitutes service to be known as Indian Supply Service (Class 1). Rule 4 deals with the strength and composition of the service. It provides (1) that there shall be three grades in the service, namely, Grade I, Grade Ii and Grade Iii ; and (2) the strength and the composition of the various grades shall be as specified in Schedule 1. It also deals with the super time scale with which we are not concerned. Schedule I of the said I.S.S. Rules initially specified the strength of Grade Iii of the service to which the petitioner belongs as containing 40 permanent and 38 temporary posts. Rule 6 deals with the 'Nature of appointments' and reads as under:
'6.Nature of Appointment: All officers holding any of the posts mentioned in Schedule I, whose appointments, where necessary, have been made through or approved by the Commission, shall be appointed substantively or in a temporary capacity, as the case may be, to the service from the date of its constitution.'
Rule 7 gives power to the Government to review the strength of the grades of the service at intervals or periods or even earlier and to make the necessary additions and alterations to the number of temporary posts as and when required. Rule 8 provides for four methods of recruitment: (a) by competitive examination in accordance with Part Iv of the Rules; (b) by promotion in accordance with Part V of the Rules ; (e) by deputation or transfer in accordance with Part Vi of the Rules and (d) by ad hoc advertisement and selection through the Commission in accordance with Part Vii of the Rules. Rule 9 provides for the appointing authority and other ancillary provisions and also provides a quota for filling up the vacancies arising in Grade III. The quota fixed is 75 per cent by direct recruitment .and the remaining 25 per cent, including deputation quota, by promotion. Under this provision for every four vacancies the first three shall be filled by direct recruitment and 'the fourth by promotion. Sub-rule (5) of rule 9 provides that the relative seniority of different type of recruits shall be determined under rules to be issued separately. Rule 10 in Part Iv deals with recruitment by competitive examination and provides that direct recruitment to the technical (Engineering) posts included in Grade Iii of the service shall be made on the results of the combined competitive examinations conducted by the Commission (U.P.S.C.) for recruitment to the Engineering Service (Class 1). It also provides by sub-rule (2) that a review shall be conducted on 1st March every year as respects the number of posts of different categories, permanent and temporary, which had to be filled up and relevant information included on the notice for the examination. Rule 11 contemplates the framing of rules governing eligibility for taking the examination etc. being framed in consultation with the U.P.S.C. Rule 12 provides as to how the appointments are to be made of so many candidates up to the number of vacancies announced under rule 10. Rule 13 which deals with 'Probation' provides as under :
'13.Probation : (1) The candidates appointed shall be on probation for a period of two years. (2) On the completion of the period of probation, the officers of Grade Iii of the Service shall, if considered fit for permanent appointment, be confirmed in their appointments subject to availability of permanent posts. (3) The Government may extend the period of two years specified in sub-rule ( 1 ). (4) If on the expiration of the period of probation referred to in sub-rule (1) or of any extension thereof under subrule (3), as the case may be, the Government are of the opinion that an officer is not fit for permanent employment or if at any time during such period of probation or extension thereof, they are satisfied that any officer will not be fit for permanent appointment on the expiration of such period or extension, they may discharge the officer or pass such orders as they think fit No period of notice shall be required for termination of service under this rule. (5) Probationers shall also be required to pass a prescribed test in Hindi before confirmation.'
Rule 14 deals with the recruitment by promotion to Grade Iii of the Service from Assistant Director Grade Ii i.e. from posts which are outside the service.
(44) It is obvious that the I.S.S. (Class 1) constituted by the 1961 rules was a new service. Prior to 9-1-1961, there was only a Director General of Supplies and Disposals and there were various posts, including the post of Assistant Director Grade Ii and Assistant Director Grade I but all those posts were not borne on the cadre of any regularly constituted service. It was only in 1961 that the I.S-S. like the Indian Inspection Service (Class 1) was constituted with effect from 9-1-1961 and consisted of three grades. All officers holding any of the posts in the D.G.S.&D.; mentioned in Schedule I of the 1961 rules were appointed substantively or in officiating capacity or temporary capacity as the case may be to the respective grades in the new service from the date of its constitution.
(45) Shri B. N. Kirpal, learned counsel for the petitioner, sought to argue that all the officers holding any of the posts mentioned in Schedule I alone were entitled to be appointed substantively or in temporary capacity, as the case may be, to the service from the date of its constitution and all those officers who were not in fact holding any of the posts mentioned in Schedule I could not be included among the officers at the time of the initial constitution of the service. The I.S.S. with the posts borne on its cadre was not in existence previously but came into existence newly on 9-1-1961. The fact that the posts in the previous set-up were included in the three grades of I.S.S. or the fact that the officers holding the said posts were appointed to the I.S.S. at its initial constitution did not make or render the newly constituted I.S.S. the same as the earlier set-up in the office of the Director General of Supplies and Disposals. The expression 'officers holding any of the posts mentioned in Schedule I in rule 6 calls for interpretation in the background of aforesaid circumstances.
(46) Shri S. L. Wattel, on behalf of respondent No. 8, on the other hand, submitted that the expression 'officers holding any of the posts mentiond in Schedule I' in rule 6 of the Rules cannot be restricted to those officers who are actually holding those posts but would also include those who were entitled to hold those posts and as such would be deemed to be holding those posts as well and such category of officers would also come within the expression 'officers holding any of the posts mentioned in Schedule I'. In the alternative, the learned counsel submitted that the order of the President dated 18-8-1975 is not an order making any appoinment with retrospective effect but is in fact an order which recognises the right of the officers mentioned therein in view of what is known as 'Next Below Rule'. He submitted that 'Next Below Rule' finds 564 statutory recognition in the Fundamental Rules read with various decisions and memoranda contained in G.I.F.D. Endorsement No. F. 27(i)- Ex-1/36 dated the 20th February, 1936 and G.I.H.D. No. 52/36-Ests. dated the 6th February, 1936 and G.I.M.F. Memo No. F-2(10)/E.III/ 60 dated the 17th October, 1960 as well as para (iv) of O.M. No. F.1/1/55-RPS dated 17-2-1955.
(47) It is clear from the resume of facts noticed from the counter affidavit of the respondents as well as from the records produced by respondents 1 to 3 that nine persons were selected for appointment of Assistant Director Grade I by the D.P.C. in its meeting held on 17-5-1960. Out of these nine, Shri C. C. Dutta was the juniormost Assistant Director Grade Ii who was selected for appointment to the post of Assistant Director Grade I in the DGS&D.; Six of the officers senior to Shri Dutta were not available as they were on deputation with the result that Shri C. C. Dutta along with two others, senior to him, were promoted as Assistant Director Grade I. Five of the officers, including respondents 4, 5 and 6, were also selected for appointment by the D.P.C. but could not be appointed as Assistant Director Grade I as they were on deputation.
(48) Fundamental Rule 11 contemplates that a Government servant can be made to do the work anywhere unless it is distinctly provided otherwise. The second proviso to Fundamental Rule 30(1) is a statutory recognition of the 'Next Below Rule'. Fundamental rule .30(1) along with its second proviso and Fundamental Rule 113(i). which is also relevant for our purposes, are as under :
'F.R.30. Pay of officiating Government servants- (1) Subject to the provisions of Chapter Vi, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post. unless the post in which he is appointed to officiate is one of those enumerated in the schedule to this rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he hold a lien or would hold a lien had his lien not been suspended : Provided further that the President may specify posts outside the ordinary line of service the holders of which may, notwithstanding the provisions of this rule and subject to such conditions as the President may prescribe, be given any officiating promotion in the cadre of the service which the authority competent to order promotion may decide, and may thereupon be granted the same pay whether with or without any special pay attached to such posts as they would have received if still in the ordinary line'.
'(I)A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer, and may be given subject to the conditions prescribed under the second proviso to rule 30(1) such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide. In giving promotion, such authority shall also take into account the nature of the work performed in foreign service.'
(49) The memorandum dated 20th February, 1936 contains the guiding principles for working of the 'Next Below Rule' and, inter alia, provies as under :
'.....................THEintention of the so-called rule was apparently that an officer out of his regular line should not suffer by forefeiting acting promotion which he would otherwise have received had he remained in his regular line. From that it follows that the fortuitous acting promotion of some one junior to an officer who is out of the regular line does not, in itself, give rise to claim under the 'next below' rule. Before such a claim is established it should be necessary that all the officers senior to the officer who is out of the regular line have been given acting promotion, and also the officer next below him, unless in any case the acting promotion is not given because of inefficiency, unsuitability or leave...........'.
(50) Again, the aforesaid memorandum dated 17th October, 1960, inter alia, provided as under :
'......................................After a careful examination of this question the President has been pleased to decide that the benefits under the 'Next Below Rule' shall not be admissible to Government servants deputed to hold regularly constituted ex-cadre posts abroad. In such cases, however, on the reversion of the officer to the post 'whether in or out of India in the parent cadre which he would have held but for his deputation to an ex-cadre post abroad that portion of the period of deputation during which the conditions precedent to the grant of benefit under the 'next below rule' are satisfied, shall be taken into account in fixing the pay of the Government servant. For this purpose, the deemed date of promotion in the post which may fall during the tenure of deputation shall be arrived at by applying all the conditions of 'next below rule' and the pay on the date of actual appointment to that post immediately on reversion from deputation to an excadre post abroad shall be fixed under F.R. 27 by assuming that the officer had been promoted from the deemed date of promotion. In order to ensure that the benefit of promotion to a higher post is not unduly denied to the Government servants, it has been decided that the administrative Ministries etc., should screen the officers to be deputed abroad so that only such officers are sent abroad, as are not likely to be promoted to any higher grade or post in their parent department during the period of deputation.'
(51) The office memorandum dated 17-2-1955 also contains instructions for safeguarding the claims of officers who are away on deputation, foreign service etc., in drawing up the select lists.
(52) A combined reading of the aforesaid memoranda along with the Fundamental Rules, referred to above, clearly shows that respondents 4, 5 and 6 and those who were similarly situated were entitled to the protection of promotion and seniority while they were on deputation. C. C. Dutta had been promoted as an Assistant Director, Grade Iii, before the constitution of the Service. Respondents 4, 5 and 6, as noticed earlier, were considered and approved for promotion by the Departmental Promotion Committee and Shri C. C. Dutta, who was junior to respondents 4, 5 and 6, was in fact promoted before the constitution of the service. By the application of 'next below rule respondents 4, 5 and 6 were entitled to promotion along with C. C. Dutta i.e. before the constitution of the service. However, as they were away on deputation, they were not actually so promoted. The order of the President dated 18th August, 1975 directing that they will be deemed to have been appointed in the aforesaid Grade Iii of the Indian Supply Service, Class I, with effect from 9-1-1961, the date of the initial constitution of the service, is merely a deferred recognition of the aforesaid fact and is completely in accord with the aforesaid Fundamental Rules and the decisions of the Government of India while enforcing the said rule popularly known as 'Next Below Rule'. Though Mr. Shenoy took over on 20th December, 1975, Mr. B. Dev took over on 17th July, 1964 and Mr. Chugtai on 2-9-1963 after their return from deputation, their names appear in the seniority list issued in 1962 and 1963 as well, in respect of Assistant Director Grade I of the I.S.S. Grade III.
(53) It is again well known that Fundamental Rules having been framed under section 96-B of the Government of India Act, 1915, still have statutory force as they are kept alive under Article 313 of the Constitution of India and the directions and instructions, so long as they are not in conflict with the statutory rules, can fill in the gaps in working out the rules. In fact, the aforesaid decisions/instrctions are merely guide lines and decisions while working out the 'Next Below Rule' which has statutory recognition in the aforesaid Fundamental Rules. Mr. Kirpal, however, submitted that the notification amounts to making the appointments retrospectively and the learned counsel cited various decisions for the proposition that there could be no retrospective appointment. We, however, need not consider those decisions for the simple reason that the notification dated 18-8-1975 makes no retrospective appointments. It merely recognises a pre-existing fact and is a deferred recognition of the working out of the 'Next Below Rule'. Once this position becomes clear, respondents 4, 5 and 6 would be such officers either deemed to be holding or entitled to hold any of the posts mentioned in Schedule I, and the expression 'holding any of the posts mentioned in Schedule I' in rule 6 of the Iss Rule would also include officers entitled to hold any of the posts mentioned in Schedule I and these respondents would be covered by rule 6. There is thus no merit in submission Nos. 1 to 4 made by Mr. Kirpal, as noticed earlier. The notification dated 18th August, 1975 also, in no way, violates the sanctioned strength of the service fixed by Schedule I of the Rules as five clear vacancies still existed for these three respondents to be absorbed.
(54) Once respondents 4, 5 and 6 are treated as officers covered by rule 6 and, thereforee, treated as forming part of the service at its initial constitution and are given the relative seniority accordingly, the other promotees would have to be moved up in accordance with the quota rule to occupy the positions vacated by them in the seniority list as framed on 20th December, 1968 and so on. The seniority list would have to be revised and accordingly it was so revised as on 11-3-1974. The revised seniority list did not suffer from any violation of the quota rule and this part of the prayer relating to the re-drawing of the seniority list as on 11-3-1974, thereforee, fails. The revised seniority list is completely in accord with the principles laid down by this Court in the case of G. N. Didwani v. Union of India (supra).
(55) The next question relates to the right of the petitioner to confirmation and as to the date with effect from which he may be entitled to such confirmation and as to the directions which may be necessary in that regard. It has already been n,oticed above that after the petitioner successfully competed in the Engineering Service Examination held in September, 1966, he was, on the recommendation of theU'.P.S.C., selected for appointment to the post of Assistant Director (Grade 1) in the D.G.S.&D; against a permanent vacancy in Grade Iii of the I.S.S. (Class 1). The offer of appointment was made, inter alia, on the following terms and conditions :
'(I)His appointment will be against a permanent vacancy and he will be on probation for a period of two years from the date of appointment, which may be extended at the discretion of the competent authority.................. Failure to complete the period of probation to the satisfaction of the competent authority or to pass the prescribed departmental tests will render him liable to discharge or reversion to the substantive post on which he may be holding a lien............ After completion of the period of probation, and till he is confirmed the appointment can be terminated at any time by a month's notice given by either side without assigning any reasons. The appointing authority, however, reserves the right of terminating his services forthwith or before the expiration of the stipulated period of notice by making payment to him of a sum equivalent to the pay and allowances for the period of notice or the unexpired portion thereof................ (x) Other conditions of service will be governed by the relevant rules and orders in force from time to time'.
The petitioner accepted the aforesaid offer of appointment by his letter dated 11th December, 1967 and he took charge on 15-1-1968. By order dated 21-4-1970, the President was pleased to order that the petitioner had successfully completed probation on 14-1-1970.
(56) At this stage, it is also convenient to notice the offer of appointment which was made to the direct recruit who was employed 'against a temporary vacancy'. Their recruitment was, inter alia, on the following terms and conditions as opposed to the petitioner who was employed 'against a permanent vacancy' :
'............(i) His appointment will be on temporary basis and he will be on probation for a period of two years from the date of appointment which may be extended at the discretion of the competent authority. During the period of probation, he will be required to undergo such training and take such departmental tests as Government may prescribe. Failure to complete the period of probation to the satisfaction of the competent authority or to pass the prescribed departmental test will render him liable to discharge or reversion to the substantive post on which he may be holding lien. The appointment will be terminable without notice during the period of probation and thereafter at one month's notice on either side.'
We have already noticed the I.S.S. Rules and the relevant rules for purposes of confirmation are rules 4,7,9,10 and 13. Rule 4 fixes the strength and the composition of the service in three grades and the post included in the various grades, their number, classification etc. have also been specified in Schedule I attached to the Rules. The petitioner was appointed to Grade Iii of the service.
(57) Before the petitioner was recruited through the U.P.S.C. under rule 10, the Government in accordance with sub-rule (3) of Rule 9 determined the method of recruitment to be employed for purposes of filling up any vacancy in the service and also determined the number of vacancies which were to be permanent and temporary and were required to be filled as such. Two permanent vacancies and five temporary vacancies were so determined. This is clear from the relevant advertisement of U.P.S.C. dated 5th February, 1966 filed with the petition as Annexure P/1. The cadre strength of Grade Iii Assistant Directors, as per the notification under Article 309 amending the Schedule with effect from 9-1-1961, showed 39 permanent posts and 12 temporary ones. It is out of this total strength that the Government under sub-rule (3) of Rule 9 had determined two vacancies as permanent and it is one of these two permanent vacancies which was offered to the petitioner which he accepted at the time of his appointment.
(58) The case of the petitioner is that since he was in fact recruited against a permanent vacancy, as soon as the petitioner completed his probation satisfactorily, he is entitled to be confirmed with effect from 15-1-1968 i.e. date of his appointment as the permanent post is clearly ear-marked for him. It is the further case of the petitioner that the practice of the Department is to confirm an officer from the date the vacancy is available. The petitioner has further averred that the Departmental Promotion Committee in its meetings held on 16-7-1971 and 24-9-1971 had approved petitioner's confirmation and in the note which was put up before the Departmental Promotion Committee, the date of petitioner's confirmation was suggested as 26-2-1968 and, thereforee, the petitioner in any case is entitled to confirmation with effect from 26-2-1968.
(59) On the other hand, the stand of the respondents is that respondents 4 to 9 were appointed against temporary vacancies prior to the petitioner and unless they are confirmed against available permanent vacancy the petitioner cannot be confirmed. Reliance in this connection is placed on behalf of respondents on sub-rule (2) of Rule 13 quoted above. The argument of counsel for the respondents is that the officers appointed against permanent vacancies stand on the same footing as officers appointed against temporary vacancies and reliance in this regard was placed on office memorandum of the Ministry of Home Affairs dated 16th May, 1959 (No. 1/9/58/RPS). According to Mr. Wattel, learned counsel for respondent No. 8, the Departmental Promotion Committee did not specify any date of confirmation so far as the petitioner was concerned. Mr. Kirpal, on behalf of the petitioner, also submitted that the office memorandum dated 16th May, 1959, did not apply to the present case as the temporary vacancies against which the respondents were direct recruits were not advertised as temporary vacancies likely to become permanent but were simply advertised as temporary vacancies.
(60) The provisions of rule 13(1) and (2) of the foresaid Iss Rules may again be noticed for facility of reference :
'13.Probation : (1) The candidates appointed shall be on probation for a period of two years. (2) On the completion of the period of probation, the officers of Grade Iii of the service shall, if considered fit for permanent appointment, be confirmed in their appointments subject to availability of permanent posts.'
It is clear not only from the letter of appointment issued to the petitioner but also from rule 13(1) that every direct recruit, recruited through competitive examination under Part Iv of the Rules, whether appointed against temporary vacancy or permanent vacancy, has to be on probation for a period of two years. Once this position becomes clear it is evident that so far as the candidate is concerned he has no right to be confirmed before he completes the period of probation stisfactorily. It is a different matter if a vacancy is available from an earlier dale and in that case the appropriate authorities may choose to confirm a candidate from a date prior to the date of satisfactory completion of probationary period, but what has to be noticed is that the candidate as such is not entitled to ask for it as of right.
(61) The next question, which is the main question, is: Can a candidate who has been recruited against a permanent vacancy be declined confirmation from a date beyond the period of probation having been satisfactorily completed on the ground that a permanent post is not available at that time as priorly recruited candidates against temporary vacancies are awaiting confirmation It is true that in the affidavits filed on behalf of respondents 1 and 2, it is the case of the Government that I.S.S. is an organized department of the Government and there are no purely temporary vacancies in it and even the candidates who are offered temporary vacancies were in fact appointed against temporary vacancies likely to become permanent. Apart from this submission on affidavit, there is nothing on record to substantiate this submission. The Rules (Schedule) simply describe the posts offered either as 'permanent' or as 'temporary'. The temporary posts are not described as temporary posts likely to become permanent. Even in the advertisement which was issued by the U.P.S.C. on the request of the Government, the temporary vacancies were not described as temporary vacancies likely to become permanent but were mentioned only as 'permanent' or 'temporary' vacancies. We have, thereforee, decided to proceed on the basis that the posts in the service were either 'permanent' or 'temporary' ones.
(62) It is clear that role 13 is intended to apply to both types of candidates i.e. those recruited against permanent vacancies and those recruited against temporary vacancies. Both types of candidates have to be on probation for a period of two years but the difficulty is created by sub-rule (2). The submission of the learned counsel for the petitioner is that the words 'subject to availability of permanent posts' occurring in sub-rule (2) are not applicable to candidates who are appointed against a permanent vacancy but are applicable only to candidates who are appointed against temporary vacancies. The argument is that there is no question of their being confirmed 'subject to availability of permanent posts' as they were initially recruited against permanent vacancies. On the other hand, the submission of the learned counsel for the respondents is that the expression 'subject to availability of posts' in sub-rule (2) is also applicable to the officers appointed against permanent vacancy in Grade Iii of the service.
(63) After carefully considering the submissions of the learned counsel for the parties, we are inclined to agree with the submission of the learned counsel for the petitioner. The reason is simple. It will be noticed that under rule 7, the Government is required, at interval of two years or earlier, if necessary, to re-examine the permanent strength of various grades of the service and to make such alteration therein as it may deem fit. A similar provision is made with respect to the number of temporary posts also and under rule 9(3), the Government has to determine not only method of recruitment but has also to determine the number of vacancies to be filled by each method. At this stage, the Government has to make up its mind as to how many permanent vacancies are available. So long as the officers appointed against temporary vacancies are not ripe for confirmation and permanent vacancy already becomes available, the Government is entitled to advertise it as such if it considers that it has to be filled up by the method of direct recruitment and it has to advertise and fill up that vacancy as such. When the government once advertises the vacancy as permanent one to be filled in by direct recruitment, and fill it up as such, no question arises of such a candidate being confirmed only subject to availability of permanent post. The offer of appointment against a permanent vacancy has already been made to the candidate and accepted by him and after he completes the period of probation it is not understood how it can be said that no permanent post is available. It appears that since rule 13 appears in part Iv of the Rules which relates to recruitment by competitive examination and since such recruitment is both to permanent posts as well as temporary posts, the part of the rule 'subject to availability of posts' is applicable only to the candidates who were appointed against temporary vacancies and not to candidates who were appointed against permanent vacancies. It is not the case of the respondents that at the time when the permanent vacancy was advertised against which the petitioner was appointed, any of the direct recruits recruited against temporary vacancies were ripe for confirmation.
(64) It is, thereforee, clear that the petitioner cannot be deprived of confirmation merely on the ground that there were direct recruits recruited earlier against temporary vacancies but were awaiting confirmation and so long as they are not confirmed against a permanent post, the petitioner cannot be confirmed.
(65) Reliance on behalf of the respondents to the aforesaid memorandum dated 16th May, 1959 of the Ministry of Home Affairs does not appear to be correct. The relevant part of this memorandum along with Note (1) relating to confirmation is as under :
'CONFIRMATIONS: (a) All cases of confirmations should be referred to a Departmental Promotion Committee. Both confirmation and denial of confirmation involve assessment of the work done by the officer concerned and such assessment can best be done by the Departmental Promotion Committee. (b) In considering the claims of promoted officers for confirmation, the Departmental Promotion Committee will be guided by the principles set forth in paragraph 1 (iii) of this Ministry's Office Memorandum No. 1/55-RPS dated 17th February, 1955. An officer promoted to officiate earlier on the recommendation of a D. P. C. will, thereforee, be entitled to earlier confirmation than others so promoted later provided that he has maintained his efficiency in such a case, the question of the relative effciency of these officers or of their purpose of confirmation, would not arise. (e) While considering the suitability of officers recruited directly through the Union Public Service Commission for confirmation the Departmental Promotion Committee will similarly be guided by the performance of the direct recruit and provided the earlier direct recruit has come up to expectations, he will be entitled to confirmation earlier than later recruits. 574 Note : (1) It may happen that an earlier recruit may have been appointed against a purely temporary vacancy whereas a later recruit may have been recruited against a permanent or likely to become permanent vacancy. In such cases direct recruits of the same category should be compared for the purpose of determining the order of confirmation. Direct recruits appointed to temporary vacancies cannot, thereforee, be compared with direct recruits appointed to permanent vacancies or vacancies advertised as likely to become permanent for this purpose and cannot have any preference. over the later on the ground of having been recruited earlier.'
Reliance was in fact placed on the aforesaid note No. 1. This note merely gives a comparison for purposes of an order of confirmation between purely temporary vacancy as against a permanent or likely to become permanent vacancy. This note does not deal with cases of officers appointed against temporary vacancies as against permanent vacancies, nor docs it deal with temporary vacancies 'which are not advertised', as likely to become permanent. It may be that other officers employed or promoted earlier against temporary vacancies are ripe for confirmation having satisfactorily completed their probationary period but they have no right to be confirmed except subject to availability of permanent posts but that does not mean that an officer who is directly employed against a permanent vacancy and who has completed probationary period satisfactorily will have to await his confirmation till all the officers employed earlier against temporary vacancies have been confirmed against available permanent posts.
(66) The next submission of Mr. Kirpal that there was a practice in the Department that the officers initially recruited against permanent vacancies were confirmed from the date of their initial appointment and, thereforee, the petitioner should be confirmed with effect from 15-1-1968, however, has no force. For one thing, the alleged practice does not give a right which can be enforced in a court of law. In any case, the instance of Shri M. T. Kansey being confirmed with effect from the date of his initial appointment does not establish any practice as he was a scheduled caste candidate. Again, the instances of Mr. Ghosh and Mr. Chawla do not establish the practice as it is stated in the counter-affidavit of respondent No. 8 that they were so confirmed under mistake and thereafter the Government had to rectify the position by their notification dated 13-8-1975 which has been filed by the respondent as Annexure R. 8-4, and the Government had to create supernumerary posts for accommodating other officers who had been appointed earlier in a temporary vacancy and were given a date of confirmation earlier than Mr. Ghosh and Mr. Chawla.
(67) It is clear from the letter dated 21-4-1970 of respondent No. 2 that the petitioner had satisfactorily completed the probationary period of two years. It may be stated that Mr, Harish Chandra, learned counsel for respondent No. 1 had, however, mentioned that respondents 1 and 2 are likely to confirm the petitioner with effect from 31-1-1969.
(68) The only direction which the petitioner would be entitled to in the circumstances is that he is entitled to confirmation but the date of confirmation will be decided in the light of the observations contained above, which in any case cannot be after the date of satisfactory completion of the probationary period.
(69) C.W. 1033 of 1975 is disposed of in the light of the observations contained above. No order as to costs.