Avadh Behari Rohatgi, J.
(1) The petitioner, Tribhuvan Nath Bhargava, is an Assistant Inspector General of Police (CID) Bhopal. He is 46 years of age. He is a member of the Indian Police Service. He was directly recruited to that service. He appeared in a competitive examination in 1953. He was successful. He was appointed to the Service on February 1, 1955. He was allotted to the cadre of the erstwhile State of Madhya Bharat. According to Rule 3(3)(a) of the Indian Police Service (Regulation of Seniority) Rules 1954 (the Seniority Rules) the petitioner was assigned 1954 as the year of allotment.
(2) Subsequently the petitioner was confirmed in Service with effect from February 1, 1957. There was a reorganisation of States and the petitioner was allotted to the cadre of the newly created State of Madhya Pradesh. Since then he is working there in the Indian Police Service.
(3) On February 25, 1974, the Government of India, respondent No. 1, made an order whereby they fixed inter se, seniority of 15 officers which included direct recruits and the State promoted officers. The petitioner was one of them. He was shown at No. 14. Nine State promoted officers were placed above him in the order of seniority. These nine State promoted officers are respondents 2 to 10. They were appointed to the Indian Police Service in 1959, 1960, 1961 and 1962. They are all post-1958 appointees. Respondents 2 to 5 were appointed in 1959, respondents 6 and 7 in 1960, respondents 8 and 9 in 1962 and respondent No. 10 in 1961. The State promoted officers were also assigned 1954 as the year of allotment.
(4) The petitioner claims that he cannot be ranked below the State promoted officers, respondents 2 to 10. In other words his case is that he is senior to them and the order dated February 25, 1.974, fixing his infer se seniority with 14 others is illegal.
(5) On October 15, 1974, the petitioner brought a petition under Article 226 of the Constitution challenging the validity of the order dated February 25, 1974. The two Governments Union of India and the State of Madhya Pradesh and the nine State promoted officers are parties to the writ petition.
(6) In the first instance the writ petition was heard by Prakash Narain J. Before him the petitioner contended that on the basis of the ruling given by a division bench of this court (Hardy and Andley JJ.) in H. R. Patankar v. Union of India, (L. P. A. No. 21 of 1969) decided on July 28, 1969(1) it must be held that the order of seniority issued by the Central Government was illegal. The Central Government, on the other hand, asserted that the decision in Patankar's(1) case was wrong and that they had filed an appeal in the Supreme Court against it which is still pending. It was, however, conceded in the return that the impugned order dated February 25, 1974, was contrary to the decision in Patankar's(l) case.
(7) The controversy before the learned single judge centered round the decision in Patankar's case. What is the rule of law laid down therein That was the question. The learned single judge thought that Patankar's(1) case 'does not clearly lay down a principle of law that would be universally applicable' and that 'the ratio of the decision in Patankar's case needs rethinking' in view of the decision of the Supreme Court in A. K. Subramanian v. Union of India, : (1975)ILLJ338SC . He, thereforee, referred the case to the full bench on December 12, 1975. This is how it has come before us.
(8) At this stage we may reproduce the impugned order dated February 25, 1974. It reads :
'NO.26/67/72-Pers. Ii Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya New Delhi 110001. Dated 25th February 1974 Order Whereas Rule 4(3) and Rule 4(4) of the Indian Police Service (Regulation of Seniority) Rules, 1954 do not cover' cases of the categories of officers having the same year of allotment, first category of officers having been appointed before the 11th April, 1958 and the officers of the second category appointed after the 11th April, 1958. And whereas, undue hardship is likely to be caused to S/Shri K. S. Bajpai and other members of the Indian Police Service who were appointed against vacancies in the pro- motion quota, who now stand allotted to the year 1954 and who had started to officiate in senior posts with effect from dates preceding the dates of commencement of officiation in senior posts by the regular recruits in that cadre and having the same year of allotment. Now, thereforee, the Central Government, in exercise of the powers under Rule 8 of the Indian Police Service (Regulation of Seniority) Rules 1954, and Rule 3 of the Ah India Services (Conditions of Service Residuary Matters) Rules, 1960 have decided that the seniority inter se of the following members of the Indian Police Service in the State cadre of Madhya Pradesh, who stand allotted to the year 1954 shall be fixed in the order indicated below:
1. Shri M.L.Jain IPS-RR 9. Shri P.P.Dudhane IPS-SPS 2. Shri K. S. Bajpai IPS-SPS 10. Shri S.P. Banerjee IPS-RR 3. Shri J.N.Malhotra IPS-SPS 11. Shri A.B-Bhattacharya IPS-RR 4. Shri Yusuf Rahim TPg-SPS 12. Shri B.K. Mukherjee IPS-RR 5. Shri I. V. Singh 13. Shri S.P. Mishra IPS-SPS 6. Shri R. L. Sanghi IPS-SPS 14. Shri T. N. Bhargava IPS-RR 7. Shri Shiv Mohan Singh IPS-SPS 15. Shri B.K.sahu IPS-SPS 8. Shri D.V.Ghate IPS-SPS
: S.d.00 I. S. Bist Under Secretary to Govt. of India'
(9) The petitioner is a direct recruit. The respondents 2 to 10 are the State promoted officers. The question is about their inter se seniority. The Central Government has placed the promotees above the direct recruits. Is this aright thing to do
(10) To appreciate the controversy it is necessary to know something about the origin of the Indian Administrative Service. As is well known, this service replaced the British steel frame the Indian Civil Service. The decision to form the Service was taken as far back as October, 1946 when it was decided that the two All India Services viz. Indian Administrative Service and Indian Police Service should be created to replace/the former Indian Civil Service and the Indian Police and the recruitment to these Services should be made through the Federal' Public Service Commission on the basis of an annual competitive examination.
(11) On January 26, 1950, the Constitution came into force. Article 312 of the Constitution provided that Parliament may by law regulate the recruitment and the conditions of service of persons appointed to the All India Services common to the Union and the States. At that time there were two such All India Services, viz.. the Indian Police Service and the Indian Administrative Service. In the absence oi any proviso to Article 312 similar to that included in Article 309, the Government of India was compelled to deal with many of these matters by means of non-statutory executive orders. This was felt to be neither satisfactory nor quite justifiable.
(12) Before the commencement of the Constitution, the Government of India issued the Indian Civil Administrative Cadre Rules and the Indian Police Services Cadre Rules. Although these Rules, in so far as they were not inconsistent with the Constitution, were continued in force by Article 313 of the Constitution, they authorised the regulation of only such items relating to the conditions of service as had already been settled. Emergency recruitment to these services to fill the gaps left by the departure of the British element in the I.C.S. and the Indian Police was still in progress at that time. Many matters relating to the conditions of service of such officers were only decided after the Constitution had come into force. Other very important matters such as the fixation of retirement benefits had yet to be settled.
(13) It was felt that Parliament should provide the requisite statutory authority to enable the Government of India to carry on the day- to-day management of the two All India Services and also to take and promulgate decisions on matters relating to the recruitment and the conditions of service from time to time (See Statement of Objects and Reasons in Gaz. Ind. 1951, Part Ii Sec. 2 page 748).
(14) In 1951 the All India Services Act, 1951 (Act Lxi of 1951) was passed. The Act provides that recruitment and conditions of service of officers of the two All India Services shall be regulated by rules to be made by the Central Government in consultation with the Governments of participating States [See s. 3(4)]. The Act further provides that all the rules so made shall be laid before Parliament and shall be subject to such modifications as Parliament may make.
(15) In 1954, the Central Government after consultation with the Government of the States concerned framed inter alia, the Indian Police Service (Recruitment) Rules, 1954 (the Recruitment Rules).
(16) Under the Rules methods of selection are basically two in number. The first method of recruitment is by means of a competitive examination. This is selection from without the Service or recruitment proper. This is provided in Rule 7 of the Recruitment Rules. Under this Rule a competitive examination to the recruitment of Service is held at such intervals as the Central Government may, in consultation with the Union Public Service Commission (Commission), from time to time determine. The competitive examination by which they enter is a test of scholarship in a wide variety of disciplines. On the results of the competitive examination, the Commission prepares a list in order of merit of candidates whom they consider fit for appointment to the service. Appointments to this service are made in the order in which their names appear in the said list.
(17) The second method is promotion. This is selection from within the service. In this method of recruitment the appointment to the higher posts in. the service is made only from within the service itself through a system of promotion by selection. This is provided in Rule 9 of the Recruitment Rules. Under this Rule the Central Government may, on the recommendation of the State Government concerned and in consultation with the Commission, recruit to the service persons by promotion from amongst the substantive members of a State Police Service in accordance with such regulations as the Central Government may, from time to time, make.
(18) In the present case we are concerned with recruits drawn from both these sources, viz. those recruited as a result of competitive examination and those recruited by promotion. In the language of the services, those who entered the service under Rule 7 are called 'direct recruits' while the State promoted officers under Rule 9 are called 'promotees'. ;
(19) Recruits to the Service having been drawn from two widely differing sources and at different stages the question of determining I their inter se seniority as members of a unified Service at once came to the fore. In order to find a solution to this difficult problem the Genual Government under section 3(1) of the Act framed Rules called the Indian Police Service (Regulation of Seniority) Rules, 1954. The object of these Rules, as is apparent, was to have within the statutory framework a uniform body of Rules dealing with all questions relating to inter se seniority of officers irrespective of the source from which they had been drawn. The easiest way of doing this, as it appeared to the Central Government then, was to place the direct recruits above the promotees.
(20) The Seniority Rules were framed on September 8, 1954. Rule 4 in so far as it is material stands today as follows:
'4.Seniority of Officers -(1) The seniority of officers inter se shall be determined in accordance with the provisions hereinafter contained in this rule. (2) The seniority of officers in service at the commencement of these rules shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules : Provided that where the seniority of an officer appointed in accordance with rule 9 Of the Recruitment Rules has not been determined before the commencement of these rules his seniority shall be determined in accordance with the provision in sub-rule (3). (3) The seniority of officers appointed to the Service after the commencement of: these rules and before the 11th day of April, 1958, who are assigned the same year of allotment shall be in the following order, that is; to say (i) officers appointed to the Service on the results of a competitive examination in accordance with rule 7 of the Recruitment Rules ranked inter se in accordance with rule 10 of the Indian Police Service (Probation) Rules, 1954; (ii) officers appointed to the Service by promotion is accordance with rule 9 of the Recruirment Rules ranked inter se in the order of the date of their appointment: (4) The seniority of officers appointed to the Service on or after the 11th day of April, 1958, who are assigned the same year of allotment shall be in the order of the dates on 'which they start officiating continuously in senior posts the dates of officiation in the cases of officers appointed to the Service in accordance with rule 9 of the Recruitment Rules being the same as the dates taken into account for the purpose of assignment of year of allotment under sub-rule (3) of rule 3:
(21) Rule 3 of the Seniority Rules provides for assignment of year of allotment to every officer in the Service. In the case of direct recruits the year of allotment is the. year following the year in which the competitive examination was held (See Rule 3 (3) (a) of the Seniority Rules). In the case of promotees the procedure is this. First find out the year of allotment of the junior-most among the direct recruits who might have officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the promotee. Then allot to the promotee the year of allotment of the junior-most direct recruit. (See Rule 3(3)(b) of the Seniority Rules).
(22) Take this very case. The petitioner appeared in the competitive examination in 1953. He was assigned 1954 as the year of allotment. To the Service he was appointed on February 1, 1955. His officiating appointment in a senior post was made on December Ii, 1959.
(23) In the case of promotees let us take a representative example the case of respondent No. 2, K. S. Bajpai. His officiating appointment in the senior post was made on July 1, 1959. (As given by the petitioner. According to the Government it was June 1959). He was a man from the State Service who had put in years of hard work and had acquired considerable experience before he was appointed to the officiating senior post in 1959. He was also assigned 1954 as the year of allotment because the junior-most among the direct recruits who had officiated continuously in a senior post was allotted 1954 as the year of allotment.
(24) It is not disputed before us that all the promotees respondents 2 to 10 have been assigned 1954 as the year of allotment. So has the petitioner been allotted 1954 as the year of allotment. So far as the year of allotment is concerned all of them sail in the same boat. There is no difference, though there are vital differences as regards the sources from which they were recruited and the dates of their appointment to the Service.
(25) Rule 4 seeks to determine the seniority of officers inter se. In order to understand the object of Rule 4 it must be borne in mind that the entire body of officers constituting the Service, whether they be direct recruits or promotees, has been divided into three groups for the purpose of determining their inter se seniority. First of all are those who entered the Service before Septcmber 8, 1954. We will call them the first group. The second group consists of those officers who entered the Service after September S. 1954 and before April Ii, 1958. This is the second group. Then come the officers who entered Service on or after April Ii, 1958. This may be called the third group.
(26) SUB-RULE (2) of Rule 4 deals with the seniority of officers inter se who were in Service before September 8, 1954. It lays down that their seniority shall be as has been determined or may be determined by the Central Government in accordance with the orders and instructions in force immediately before the commencement of these rules. Proviso to sub-rule (2), however, lays down that where the seniority of a promotee is not determined before the commencement of these rules, the seniority shall be determined in accordance with sub-rule (3). It may be noted here that neither the petitioner nor respondents 2 to 10 were in Service before September 8, 195-1. To none of them sub-rule (2) of Rule 4 has any application.
(27) The second group of officers consists of those who were appointed to the Service after September 8, 1954, and before April Ii, 1958 and were assigned the same year of allotment. Sub-rule (3) deals with the second group. As regards direct recruits their seniority is strictly determined on the basis of the list arranged in' the order of merit by Commission which essentially is based on the proof of competence in the competitive examination. As regards the promotees their inter se seniority is determined in the 'order of the date of appointment'. But as between direct recruits and promotees in this group where both classes of officers were appointed after September 8. 1954 and before April Ii, 1958, and had been assigned the same year of allotment the direct recruits were made en bloc senior to the promotees. This is clear from the words 'following order' which occur in sub-rule (3).
(28) The seniority of direct recruits over the promotees was the reigning principle before the Rules were amended on April 11, 1958, A glance at Rule 7 shows that the 'examination recruits' are given precedence over 'State Service Officers' in cases of fixation of seniority on transfer to another cadre. Similarly Rifle 6 shows that the 'gradiation list' is to be prepared each year 'in order of seniority' in accordance with the provisions of Rule 4. It is this principle of en bloc seniority of direct recruits over the promotecs which pciineatei Rule 3(3). This principle was not done away with even vhcii the new principle of officiation in senior post was brought in by amendment in Rule 4(4). The amendment, it would appear, was prospective and not retrospective. It applied only to those who were appointed 'on or after the 11th day of April 1958'. It had no application to the officers appointed before that date.
(29) Let us see whether the petitioner or respondents 2 to.10 fall in the second group. We find that the petitioner belongs-. to the second group of officers as he was appointed to the Service on February 1, 1955. But the promotees do not belong to this group as they were appointed to the Service between 1959 and 1962.
(30) Last of all comes the third group of officers. This group is comprised of those officers who were appointed to the Service on or after April Ii, 1958, and were assigned the same year of allotment. Sub-rule (4) of Rule 4 deals with the third group. In the third group the principle of en bloc seniority of direct recruits over the promotees was abandoned. Another principle was substituted in its place. The rule provides that as between a direct recruit and a promotee the inter se seniority will be determined
'INthe order of the dates on which they start officiating continuously in senior posts the dates of officiation in the cases of officers appointed to the Service in accordance with rule 9 of the Recruitment Rules being the same as the dates taken ino account for the purpose of assignment of year of allotment under sub-rule (3) of rule' 3.'
(31) In other words the inter se seniority will be determined in the order of the dates on which they started officiating in senior posts, the dates of officiation in the case of promotees being the same as the dates of the junior-most officers among the direct recruits who officiated continuously in a senior post. This is the very criterion that is taken into account for the purpose of assignment of the year of allotment to the promotees under sub-rule (3) of Rule 3 of the .Seniority Rules.
(32) The promotees, respondents 2 to 10, clearly fall within the third group. They were appointed to the Service after April 11, 1958 though their year of allotment is also 1954.
(33) From the above discussion three outstanding facts emerge:
(1)that while the petitioner was appointed to the Service after September 8, 1954, and before April I.I, 1958 the- respondents 2 to 10 were appointed after April Ii, 1958; (2) that while the petitioner started officiating in the senior post from December 11, 1959 the respondents 2 to 10 had started officiating in senior posts from a date prior to the petitioner's date of officiation; and (3) that the allotment year of the petitioner and respondents. 2 to 10 is 1954.
(34) Which principle ought to determine their inter se seniority is it the date of appointment to the Service or the date of officiation in the senior post How is their seniority to be determined when the direct recruit belongs to the second group and the promotees belong to the third group This is the question.
(35) The Central Government by the impugned order has placed respondents 2 to 10 above the petitioner. Is this course warranted by the Rules? Now the impeached order recites: 'Whereas Rule 4(3) and Rule 4(4) of the Indian Police Service (Regulation of Seniority) Rules, 1954 do not cover cases of the categories of officers having the same year of allotment.......................................
(36) The Central Government, thereforee, in the purported exercise of its powers under Rule 8 of the Seniority Rules and Rule 3 or the All India Services (Conditions of Service Residuary Matters) Rules, 1960 (Residuary Matters Rules) fixed the infer se seniority of the petitioner and the respondents by placing the petitioner below them.
(37) The important fact is that the impugned order recognises that:
'.........first category of officers having been appointed before the 11th April, 1958 and the officers of the second category appointed after the Ii, April, 1958...................'
(38) But the Government thought that the Rules being silent about seniority inter se between those who tall in group Ii and those in group Iii like the petitioner and the respondents 2 to 10 they were free to interpret the Rules and relax them in favor of the respondents in order to arrive at a 'just and equitable' result or in other words lo avoid 'undue hardship' as the order recites.
(39) The basic assumption of this order, if we may say so, is fallacious. The Government thought that to the case of petitioner and respondents 2 to 10 the seniority Rules did not have an answer. They did not cover their eases, it was assumed. thereforee the Government resorted to its power under Rule 8 of the Seniority Rules and Rule 3 of the Residuary Matters Rules, 1960 and purported to fix their inter se seniority on the basis that respondents 2 to 10 had
'STARTEDto officiate in senior posts w. c. f. dates preceding the dates of commencement of officiation in senior posts by the regular recruits in that cadre and having the same year of allotment.'
(40) To put it briefly, their decision is based solely on the ground that the respondents had started officiating in senior posts much before the petitioner. By way of illustration we have seen in the case of the petitioner and respondent No. 2 that the petitioner started officiating in senior post on December 11, 1959, while respondent No. 2 was appointed to the officiating senior post on July 1, 1959 (or June 1959). This seniority of a few months, that is, between July (or say Tune) and December 1959 has, according to the Government, made all the difference in the case of the petitioner and respondent No. 2. Respondent No. 2 has been declared to be senior to the petitioner on this basis as his year of allotment is the same, that is, 1954, notwithstanding the fact that the petitioner is a direct recruit and falls not in group Iii but in group II. Both these considerations, viz.., that he is a direct recruit and that he belongs to the second group of officers being a pre-April 11, 1958 direc( recruit have been entirely ignored in determining petitioner's seniority vis-a-vis respondents 2 to 10.
(41) In our opinion the Seniority Rules clearly appiy to the case of the petitioner and respondents 2 to 10. The petitioner belongs to the second group of officers. His case is governed by subrule (3) of Rule 4 of the Seniority Rules. The direct recruits as a class have been made senior to the promotees under sub-rule (3). Respondents 2 to 10 clearly fall within the third group of officers. To them sub-rule (4) of Rule 4 applies. They belong to the period after April 11, 1958 though they have been assigned the same year of allotment as the petitioner. By virtue of their longer continuous officiation in the senior posts they cannot claim that they have become senior to the petitioner wha belongs to the second group of officers.
(42) Chronologically speaking, the first group has a priority over the second and the second over the third. Such is the scheme, arrangement and structural plan of Rule 4. Those who entered Service earlier in point of time are to rank senior to those who come after them. The officers of the first group are senior to the officers of the second group. Officers of the second group are senior to the officers of the third group. Man at the bottom cannot claim that he is senior to the man on the top. This is what we call inter se seniority or seniority of one group over the other.
(43) Rule 4 not only determines inter se seniority of officers.. it also determines their seniority intra se, that is, those who are within the same group are to rank senior and junior in accordance with the provisions contained in sub-rule (3) and sub-rule (4) of Rule 4. Inter se seniority is between or amongst the three different groups. Intra se seniority is within or inside the group. It is an inner or inward reckoning. Inter se reckoning is external or outward reckoning. It is between one group and another where one group of officers as a class rank seniority to the other group- In a word Rule 4 determines seniority of officers both vertically and. horizontally.
(44) To our minds the question of inter se seniority of the petitioner and respondents 2 to 10 does not arise in the present ease. In fact there can be none for the simple reason that the petitioner belongs to a group different from the group of respondents 2 to10. The question of infra se seniority will naturaly arise only when two or more officers belonging to the same group are the contenders turn seniority, whether they be direct recruits or promotees. The question of infer se seniority, on the other hand, has necessarily to' be determined where the officers belong to different groups as in the present case. Here insiders and outsiders are involved. Rule 4, in fact, has been enacted with the object of determining inter se seniority. It opens with the words:
'THEseniority of officers inter se shall be determined in accordance with the provisions hereinafter contained in this Rule.'
(45) The word 'inter se' is quite suggestive. It is a Latin expression. In plain English it means 'amongst themselves'. It determines seniority between different groups, as we have seen. The Seniority Rules came into force on September 8, 1954. Under the original Rule 4(3) the seniority of direct recruits vis-a-vis the promotees was determined by the principle that direct recruits were made en bloc senior to the promotees who were assigned the same year of allotment. By a notification dated April Ii, 1958, the existing sub-rule (3) was substituted by a new sub-rule (3). The new sub-rule (3) provided for the determination of seniority of officers appointed to the Service on or after April 4, 1958 and who had been assigned the same year of allotment. It provided that the seniority of the officers, whether they be direct recruits or promotees, will be determined inter se in the order of the dates on which they started officiating continuously in the senior posts.
(46) The result of the amendment was that Rule 4 did not contain any provision for fixing or determining the inter se seniority of persons appointed to the Service between September 8, 1954 and April 4, 1958. In order to fill this gap a further amendment was made on August 13, 1958. This amendment substituted sub-rule (3) to provide for fixation of inter se seniority of officers appointed between September 8, 1954 and April 11, 1958. The wording of this subrule (3) was the same as in original sub-rule (3) as it stood prior to the amendment on April 11, 1958.
(47) The above history of Rule 4 shows that it came into force on September 8, 1954 and was subsequently amended on April 11, 1958. Everything hangs on these two dates. September 8, 1954 and April 11, 1958 are the two dividing lines which divide the entire body of officers constituting the Service into three divisions. These three divisions consist of officers who were appointed.
(1)before September 8, 1954, (2) after September 8, 1954 and before April 11, 1958, and (3) on or after April 11, 1958.
(48) The division into three groups is in order of time. Units of time form the basis of reckoning. It is in this sense that we may call it a chronological or historical division.
(49) It follows a fortiori that such a basis of division has an inbuilt principle of seniority. This principle of seniority is none other than that a person by virtue of longer service ranks above another. Under Rule 4 it is a superiority in standing to another of the same allotment year by reason of earlier entrance into the Service or an earlier date of appointment. In a sense seniority is essentially relational in character. Group I is senior to group Ii and III. Group Ii is senior to group III. Group I officers are at the top. Group Iii officers are at the bottom. Group Ii officers occupy an intermediate position. They are junior to group I officers. But they are certainly senior to group Iii officers.
(50) We may liken the three groups to three compartmented boxes. To each box officers are allotted having regard to the dates of their appointments to the Service. In the first box will be the pre- 1954 officers. In the second box post-1954 and pre-April 11, 1958. In the third box will be post-April 11, 1958 officers. The three categories in Rule 4 have been separated into compartments in a manner tending to preclude inter-relationship. These three compartments lack interaction or interplay. They are exclusive preserves of each separate and independent group. There is no mobility among the three groups. They are mutually isolated units in the sense that it is not possible for the officer of the third box to enter into the second and claim seniority over those who by reason of their appointment to the Service have already achieved a status, a standing of priority or precedence over the officers of the third group.
(51) Rule 4 of the Seniority Rules adopts the principle of priority or precedence in Service. It does not adopt the biblical advice : 'Many that are first shall be last; and the last shall be first' (Matthew 19 : 27). In this temporal world atleast relation to the principle of seniority, the biblical advice has not been accepted. It may be made clear here that we are strictly on the principle of seniority. In this case we are not concerned with promotion to higher rank. Should promotion be through merit or through seniority? That is an entirely different question.
(52) We may now deal with the argument of the Government. The principal contention raised before us is that since the petitioner and respondents 2 to 10 have been assigned the same year of allotment the respondents are entitled to rank senior under Rule 4(4) read with Rule 3(3)(b). The other lag of the argument is that if it is held that no rule applies then in exercise of their executive power under Article 73 of the Constitution and administrative discretion conferred by Rule 8 of the Seniority Rules and Rule 3 of the Residuary Matters Rules, 1960 the Central Government is entitled to make the impugned order determining inter se seniority. We cannot accept this submission. We have already held that Rule 4 expressly and in terms applies to the case in hand. The order of the Central Government is an inversion of Rule 4. It offends both the letter and the spirit of the Rule. To uphold the order will be to overturn the statutory scheme of reckoning. It will be putting it upside down as it were.
(53) The framers of the Rules and in the last analysis the Parliament (for the Rules have to be laid before Parliament after they are made for modification, amendment or repeal (section 3 of the Act of 1951) never intended that the principle of continuous officiation in Service adopted in Rule 4(4) and 3(3) (b) should be made equally applicable even to those who entered the Service before April Ii, 1958. Can the same principle apply to the entrants before April Ii, 1958 notwithstanding the fact that in their case the principle of en bloc seniority of direct recruits over the promotees is entrenched in Rule 4(3) of the Seniority Rules
(54) It was said that the impugned order was made to avoid 'undue hardship' and to deal with the case in 'a just and equitable manner' (See Rule 3 of the Residuary Matters Rules 1960). This is how the 'ad hoc' decision (as the Government described it in the return) was sought to be justified.
(55) Is the impugned order just? We do not think so. It merely transfers discontent. It propitiates one class of officers but creates discontent in another. The test of a sound rule is that it satisfies those to whom it is applied as fair and just. If the Rules are not to bread 'human discontent' conflicting claims of the two tenure holders will have to be welded into an organic unity. If 'undue hardship' is to be avoided as is the professed aim, a rationalised and systematised service structure should be built with a 'broad humane approach' by fusing irreconcilable elements as was done in England in Pulton Report on the Home Service and in the Duncan Report on the Diplomatic Service. (See A. K. Subramnian v. Union of India, : (1975)ILLJ338SC ). But Rule 4 as framed is a patchwork rather than a mosaic.
(56) To the petitioner Rule 4 applies. The impeached administrative order is plainly inconsistent with the Rule. Government cannot amend or supersede statutory rules by administrative instructions. (See Sant Ram v. State of Rajasthan, : (1968)IILLJ830SC ).
(57) On the basis of mere allotment year respondents 2 to 10 cannot be reckoned as senior. The principle of Rule 4 (4) is tile same as Rule 3(3) (b). 'The object of R. 3(3) (b)' as the Supreme Court has said:
'ISto fix the seniority of the promotecs in relation to direct recruits. The promotees obtain promotion after long service in the State Civil Services. From the point of view of the promotee, his seniority should be counted from the date of his joining the State Civil Service From the point of view of the direct recruit, the seniority of the promotee should be counted from the date of his appointment to the Indian Administrative Service. Rule 3(3) (b) attempts to strike a just balance between the conflicting claims. It gives the promotee the year of allotment of the junior-most direct recruit officiating continously in a senior post earlier than the date of commencement of such officiation by the promotee.'
(A. P. Saxena v. Union of India, : (1969)ILLJ373SC ).
(58) An allotment year is a status symbol. Its object is to bring the promotee at par, on a level of equality, so to speak, with the direct recruit of that year of allotment. Although as a fact some of the promotees were actually appointed to the Service at a later date, for the purpose of determining their seniority they were assigned an earlier year of allotment on account of their previous service and administrative experience.
(59) But if the direct recruits and the promotees stand in separate and different groups by virtue of the date of their appointment to the Service it cannot be said that the same allotment year can elevate the promotees to a pedestal of equality with the direct recruits. That will be making unequals equal. Seniority is in relation to another of equal rank and not of unequal rank.
(60) Rule 3(3) (b) has a limited purpose. Its object is to lay down a principle for the assignment of an allotment year to a promotees Beyond that it has no utility or meaning,
(61) The object of Rule 3 (3) (b) is to give weightage to the promotees but only once. They cannot be given double weightage. In our opinion the governmental order seeks to give additional weightage to the promotees on the spacious plea of 'undue hardship'. Once weightage was given when year of allotment (1954) was assigned to respondents 2 to 10. A second time a further weightage now purported to be given by holding as if the promotees (respondents 2 to 10) belonged to the second group of Rule 4(3) though in point of fact they were appointed to the Service much later than the petitioner. It seems to us that there is no warrant for this special favor or concession.
(62) The petitioner's counsel argued that assuming Rule 4 does not apply to the petitioner, even then the Central Government has no power to make an ad hoc decision in the manner purported to be done in this case. In Patankar's (1) case the bench thought that the Government had the power to make an ad hoc decision if the Rules do not apply. In the view we have taken in this case it is unnecessary to express an opinion on this contention.
(63) What did Patankar's (1) case decide? That was a case of an Indian Administrative Service . oflicer. Patankar and respondents 3 to 9 did not belong to the same group. Patankar was a direct recruit who was appointed to the Service before April 11, 1958. Respondents 3 to 9 were promotees who were appointed to the Service in 1961. The only thing common between them was the same year of allotment, viz., 1956.
(64) The promotees were made senior to Patankar by an administrative order of the Government, Patankar challenged the validity of the order. Before a learned single judge of this court (V. S. Deshpande J.) he failed. The learned judge took the view that the Seniority Rule 4 did not cover the case of fixation of seniority of a pre-1958 direct recruit vis-a-vis the post-April 11, 1958 promotees and the Central Government was entitled to take a general decision that in such cases seniority should be fixed on the basis of the date of the commencement of continuous ofliciation in the senior post in the Service. He held that under Rule 8 of the Seniority Rules the Central Government was empowered to construe the Seniority Rules and their construction that the case was not covered by the Seniority Rule 4 was final.
(65) Patankar appealed. A division bench of this court reversed the learned single judge and allowed the appeal. The bench held that Rule 4 of the Seniority Rules was a complete code in itself for the purpose of determining the infer se seniority of all the officers constituting the Service. Patankar having been appointed before April 11 1958, Rule 4(3) applied to his case and he cannot be made junior to those who were appointed to the Service in 1961.
(66) The bench ruled that the normal rule of seniority is that the person who enters Service first ranks senior to one who joins after him. thereforee, the application of Rule 4(4) to the case of Patankar (1) whose case squarely fell in the category of Rule 4(3) was not justified. Speaking for the court Hardy J. said : '
'ASwe construe Rule 4, which in our opinion is all embracing and is intended to cover the question of inter se seniority of all the officers constituting the Service except those covered by Rules 5, 5 A, 5B, 5C and 7, it does not do away in any manner with the normal principle of seniority, namely, that he who is appointed to a substantive post in a Service first ranks higher in seniority than one who joins after him. This construction of Rule 4 also appears to us to be borne out by the expression 'inter se seniority' used in sub-rule (4) (i) of Rule 4. Sub-rule (4) is in terms confined to the case of officers appointed to the Service after 11-4-1958 who have the same year of allotment and has nothing to do with officers appointed to the Service before that date even though they may have the same year of allotment as the officers appointed to the Service after thar date. The controlling words for the application of sub-rule (4). are 'appointed to the Service on or after the 11th day of April, 1958' just as the controlling words, in sub-rule (3) are 'appointed to the Service after the commencement of these rules (8-9-1954) and before the 11th day of April. 1958'. It is the inter se seniority of the officers whose cases are covered by sub-rule (4) and not of others that is governed by it. Neither the rule nor the principle underlying it can thereforee be legitimately extended to a case not covered by it.'
(67) With these observations we are in respectful agreement. It appears to us that the above extract clearly brings out the ratio of the i.e decision in Patankar's case. that
(68) It was conceded before us that the Senioricy Rules of the Indian Administrative Service are in pan materia with (hose of the Indian Police Service.
(69) The learned single judge doubted the correctness of the decision in Patankar's(l) case. We think that it was rightly decided, Nor in our opinion has the decision of A. K. Subramanian v. Union of India (supra) (2) made any difference to the principle enunciated by the division bench in Patankar's(l) case. A. K. Subramanian's(2) case is entirely different from Patankar's case and does not, we say so with respect, bear on the question we have been called upon to answer.
(70) In our opinion the present case is indistinguishable from Patankar's(l) case. We have not been able to persuade ourselves to take a view different from that taken in Patankar's (1) case.
(71) That that case does not lay down a principle of universal application is not the question. All that we are concerned with is to see that it lays down a correct principle of interpretation of the Seniority Rule. That in our respectful opinion it does. The truth is that common lawyers (and this is true in other common law jurisdictions as it is in England), like the classical Roman lawyers, are far more interested in finding a practical solution to the immediate problem than in dogma. There can be no final solutions cast in generalisation of universal applicability.
(72) For these reasons we would hold that the impugned order dated February 25, 1974 (Annexure A to the petition) is invalid. We quash it accordingly. We hold that the petitioner is entitled to rank senior to respondents 2 to 10. The gradiation list prepared under the Seniority Rules will have to be revised in the light of our judgment. In the circumstances we would leave the parties to bear their own costs.