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K.B. Shukla and ors. Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 256 of 1968
Judge
Reported inILR1969Delhi80
ActsDelhi Himachal Pradesh and Andaman and Nicobar Island Service Rules 1965 - Rule 5(3); Constitution of India - Article 14
AppellantK.B. Shukla and ors.
RespondentThe Union of India and ors.
Advocates: N.S. Bindra,; Prakash Narain,; S.N. Chopra and;
Cases ReferredC.A. Rajendran v. Union of India and
Excerpt:
delhi himacbal pradesh and andaman and nicobar island service rules 1965 - sub-rule (3) of rule 5--validity of--power conferred by sub-rule (3)--nto uncontrolled and arbitrary--equality contemplated by article 16(1)--nature of--constitution of india, articles 14 & 16 nto offended ; that the exercise of power under sub-rule (3) of rule 5 is conditional upon an exigency as also on consultation with the commission at least in the matter of appointment of particular transferees to the service and besides the said power is exercised only up to a specified short period. it cannto, thereforee be said that the power conferred by the sub-rule is uncontrolled and arbitrary so as to be vocative of article 14 of the constitution. ; the word 'exigency' contemplates a pressing state of.....s.n. andley, j.(1) -these three writ petitions (cw nos. 256, 257 and 258 of 1968) have been brought by the petitioners who became members of the delhi and himachal pradesh civil service in 1962 after passing a competitive examination. the delhi and himachal pradesh civil service, hereinafter referred to as 'the 1961 service' was constituted in 1961 and the president, in exercise of the powers conferred by the proviso to article 309 of the constitution and all toher powers enabling him in that behalf, made the delhi and himachal pradesh civil service rules, 1961, hereinafter referred to as 'the 1961 rules'. the 1961 rules were repealed by rule 37 of the delhi, himachal pradesh and andaman and nicobar islands civil service rules, 1965, hereinafter referred to as 'the dhanics rules'. the.....
Judgment:

S.N. Andley, J.

(1) -THESE three writ petitions (CW Nos. 256, 257 and 258 of 1968) have been brought by the petitioners who became members of the Delhi and Himachal Pradesh Civil Service in 1962 after passing a competitive examination. The Delhi and Himachal Pradesh Civil Service, hereinafter referred to as 'the 1961 Service' was constituted in 1961 and the President, in exercise of the powers conferred by the proviso to Article 309 of the Constitution and all toher powers enabling him in that behalf, made the Delhi and Himachal Pradesh Civil Service Rules, 1961, hereinafter referred to as 'the 1961 Rules'. The 1961 Rules were repealed by rule 37 of the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Civil Service Rules, 1965, hereinafter referred to as 'the Dhanics Rules'. The Dhanics Rules were also made by the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution and all toher powers enabling him in that behalf and governed the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Civil Service, hereinafter referred to as 'DHANICS'. The petitioners having been members of the 1961 service became, by reason of rule 17 of the Dhanics Rules, members of Dhanics by two ntoifications dated November 29, 1967. Their appointment to Dhanics was made in exercise of powers conferred by sub-rule (3) of rule 5 of Dhanics Rules. The aforesaid sub-rule was added by a ntoification dated November 3, 1966.

(2) The petitioners have prayed that sub-rule (3) of rule 5 of the Dhanics Rules and the two ntoifications dated Novembr 29, 1967, appointing respondents Nos. 3 to 10 to Dhanics be quashed; the appointment of respondents Nos. 3 to 10 be declared null and void and be set aside and respondents Nos. 1 and 2 be restrained from fixing the seniority of respondents Nos. 3 to 10 over the heads of the petitioners.

(3) The validity of sub-rule (3) of rule 5 of the Dhanics Rules is challenged on the ground that this sub-rule violates Articles 14 and 10 of the Constitution.

(4) The petitioners' case is that they joined the 1961 Service as they had brighter future prospects for promtoion to Grade I of the Service and to the Indian Administrative Service than they had in any toher State Service. Their complaint is that sub-rule (3) of rule 5 of the Dhanics Rules and the appointment of respondents Nos. 3 to 10 affects their seniority and chances of promtoion and that the aforesaid sub-rule is arbitrary and the two impugned ntoifications are mala fide.

(5) Rule 3 of the 1961 Rules constituted the Delhi and Himachal Pradesh Civil Service consisting of two grades, namely. Grade Ii and Grade I (Selection Grade). The posts in Grade I were Central Civil Posts, Class I, Gazetted and those in grade Ii were Central Civil Posts, Class, Ii, Gazetted. Rule 30 of the 1961 Rules fixed the scales of pay of this Service as follows :-

(I)Grade I-(Selection Grade) Rs. 900-50-1200. (ii) Grade It-Time scale Rs. 300-30-510-E-B-30-600-40- 720-E-B-40-800-50-850.

(6) SUB-RULE (2) of rule 30 of the 1961 Rules provided that persons like the petitioners recruited on the results of competitive examination shall, on appointment to the Service, draw pay at the minimum of the time-scale. thereforee, the petitioners and toher direct recruits like them had first to join the 1961 Service in grade at Rs. 300.00. It was also provided by this sub-rule that the pay and increments in the case of toher persons appointed to the Service shall be regulated in accordance with the Fundamental Rules.

(7) Rule 31 of the 1961 Rules provided that members of the Service would be appointed to the Selection Grade in consultation with the Union Public Service Commission, hereinafter referred to as 'the Commission' on the basis of merit with due regard to seniority. Sub-rule (2) of rule 31 provided that an officer with a minimum of 12 years' service in Grade Ii shall be eligible for being considered for appointment to the Selection Grade provided that if any person in Grade Ii was considered for promtoion to the Selection Grade, all persons senior to him in this Grade shall also be considered irrespective of whether or nto they fulfillled the requirement as the minimum of 12 years' Service. As I have stated above, the petitioners entered the 1961 Service in 1962 and would nto, normally, be eligible for appointment to the Selection Grade until 1974. If the contention of the petitioners based on the interpretation of rules 5 and 29 as stated hereafter is accepted, the result would be that respondents Nos. 3 to 10 would be placed in the seniority list as junior to the petitioners and, thereforee, if any of the respondents Nos. 3 to 10 was considered for appointment to the Selection Grade by reason of the length of his service in his respective State Service, the petitioners would automatically be considered for appointment to the Selection Grade even though they have nto completed the minimum of 12 years' of service in Grade II.

(8) Rule 17 of the 1961 Rules gave power to the Central Government to appoint, at the commencement of these Rules, to the Service any person who at such commencement was holding any of the posts specified in Schedule I or any equivalent post in the State of Punjab or Uttar Pradesh. Having thus provided for the initial appointment of persons to the service, rule 5 of the 1961 Rules prescribed the method of recruitment to the 1961 Service. Rule 5 is in these terms :-

'(1)Save as provided in rule 17, appointment to the Service shall be made by the following methods, namely :- (a) nto more than 50 per cent of the substantive vacancies which occur from time to time in the authorized permanent strength of the Service shall be filled by direct recruitment in the manner specified in Part Iv of these rules; and (b) the remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of these rules from amongst. (i) Officers who are substantively borne on the cadre of Tehsildars employed in either of the Union Territory of Delhi or Himachal Pradesh; and (ii) officers who hold substantively any of the posts mentioned in Schedule Ii, Parts A and B. Provided that for a period of three years from the constitution of the Service if a sufficient number of suitable officers is nto available under clause (b), the requisite number of officers may, in consultation with the Commission, be appointed to the Service by transfer of members of a State Civil Service or toher Service : Provided further that ntohing in this rule shall preclude the Central Government from holding a vacancy in abeyance, or filling it on an officiating basis in accordance with the provisions in Part Viii of these rules. (2) If the exigencies of service so require, the Central Government may, in consultation with the Commission, vary the percentage of vacancies to be filled by each method specified in sub-rule (1).'

(9) It will, thereforee, be seen that the personnel of the 1961 Service was to be constituted from out of (a) initial appointees under rule 17; (b) direct recruits under clause (a) of sub-rule (1) of rule 5 to the extent of 50 per cent of the substantive vacancies in the authorised permanent strength; (c) promtoees under clause (b) of sub-rule (1) of the rule 5 and (d) transferees under the first proviso to clause (b) of sub-rule (1) of rule 5. By reason of the fact that transferees could be appointed to the 1961 Service only in the qutoa of promtoees, it is contended that they must be treated at par with promtoees. I may add here that the power to appoint transferees to the 1961 Service could be exercised within a period of three years from the constitution of the Service and that too only if a sufficient number of suitable officers was nto available under clause (b) of sub-rule (1) of rule 5.

(10) The method of recruitment for direct recruits is provided in rules 6 to 12 of the 1961 Rules. The only relevant rule out of these is rule 9 which requires the Commission to forward to the Central Government a list arranged in order of merit of the candidates who have qualified in a competitive examination.

(11) Recruitment by selection in respect of persons covered by clause (b) of sub-rule (1) of rule 5 is dealt with by rules 13 to 16. Rule 13 provides for selection by a Selection Committee. The selection was to be made on the basis of merit and suitability with due regard to seniority. thereforee, in the 1961 Service, seniority of such persons was to be taken into consideration only for the purpose of selection to the Service and nto, as I will point out later, for the purpose of fixing seniority in the seniority list-a matter governed by rule 29.

(12) Rule 18 of the 1961 Rules provides that all appointments to the 1961 Service shall be made to Grade I or Grade Ii and nto against any specific post included in the Service.

(13) Then comes rule 29 of the 1961 Rules which has led to a lto of controversy before us. This rule related to the fixation of seniority of the various persons who are recruited into the 1961 Service and deals with the fixation of seniority of persons initially appointed to the Service under rule 17; persons recruited upon the result of an examination under rule 5(l)(a); persons holding what may be described as 'subordinate posts' and selected for appointment to the Service under Rule 5(l)(b) and persons transferred to the Service from toher State Civil Services under the first proviso to rule 5(l)(b). This rule is in these terms :-

'THECentral Government shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below :- (i) In the case of persons appointed on the result of competitive examination, and by selection under clause (b) of sub-rule (1) of rule 5, seniority in the Service shall be determined by the order in which appointments are made to the Service: Provided that- (a) persons recruited on the results of the competitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of later examination: (b) the relative seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names are arranged in the list prepared under rule 14. (ii) The seniority of members of the Service appointed by transfer under the first proviso to sub-rule (1) of rule 5, and of those appointed at the initial constitution of the Service in accordance with the provisions of Part Vi of these rules, shall be determined ad hoc by the Central Government in consultation with the Commission, due regard being had to the posts previously held by them under the Central Government/State Government and the length of Service rendered by them therein. Provided that in the case of persons appointed under the first proviso to sub-rule (1) of rule 5 or the first proviso to sub-rule (1) of rule 17, if two or more persons belong to the same parent service or Department are thus appointed, they shall be ranked infer se in the order of their relative seniority in the parent service or Department, as the case may be. (iii) The relative seniority of direct recruits and of promtoees shall be determined according to the rtoation of vacancies between direct recruits and promtoees which shall be based on the qutoas of vacancies reserved for direct recruitment and promtoion under rule 5.'

(14) The contention of the petitioners is that since transferees who are appointed to the Service from the State Civil Services under the first proviso to clause (b) of sub-rule (1) of rule 5 are appointed in the qutoa of promtoees, they cannto affect the seniority of direct recruits by reason of the length of their service in their respective State Service. Rule 29 of the 1961 Rules provides for the preparation of a seniority list in the manner specified. It first provides that the seniority of direct recruits and promtoee shall be determined by the order in which appointments are made to the Service. thereforee, it is obvious, that the length of service of the promtoees in the subordinate posts which they were occupying before their appointment to the Service is nto to be taken into consideration for determining their seniority in this although their length of service by virtue of rule 14 is to be taken into consideration for selecting them to this Service. This rule then provides for fixation of the seniority of persons who are appointed under rule 17 and those who are appointed by reason of the first proviso to sub-rule (1) of rule 5 and the seniority of such persons is to be determined ad hoc by the Central Government in consultation with the Commission, due regard being had to the posts previously held by them under the Central Government/State Government and the length of service rendered by them therein. thereforee, unlike promtoees who are appointed under clause (b) of sub-rule (1) of rule 5, the length of service and the nature of the post held by initial appointees and transferees is to be taken into consideration for purposes of fixing their seniority. In toher words, if the power conferred by the first proviso to sub-rule (1) of rule 5 had been exercised, the transferees could, upon their appointment, be placed senior to the direct recruits or the promtoees even though the transferees were appointed to the service subsequent to the appointment of the direct recruits and the promtoees. The basic assumption of the petitioners that inasmuch as the transferees have to fill in the qutoa of promtoees, the transferees appointed after the appointment of the direct recruits would be placed in the seniority list below the direct recruits already appointed in the Service inrrespective of the length of service of the transferees in their previous appointment is without foundation.

(15) I may state here that it is the admitted case of the parties that no appointments were made to the 1961 Service by reason of the first proviso to sub-rule (1) of rule 5 and the 1961 Service comprised only of initial appointees; direct recruits and promtoees.

(16) Then in 1965 came the Dhanics Rules. Rule 17 of Dhanics Rules provided that this service shall include persons who immediately before the commencement of these rules were members of the Delhi and Himachal Pradesh Civil Service. It further provided for appointment, at the commencement of these rules, to the Service of any person who at such commencement is holding any of the posts under the Andaman and Nicobar Administration specified in Schedule I to those rules. It is again the admitted case of the parties that no appointments were made to the Dhanics from out of any persons who were holding any such posts under the Andaman and Nicobar Administration. thereforee, at its commencement, the Dhanics was constituted by those who had been appointed to the 1961 Service under rule 17 or under clauses (a) and (b) of sub-rule (1) of rule 5 of the 1961 Rules.

(17) I may state here that rules 3; 4; 6 to 16; 18; 21; 24; 30; and 31 of 1961 Rules and the Dhanics Rules are in terms identical. Changes were, however, made in rules 5 and 29. Originally rule 5 of the Dhanics Rules ran thus :-

'(1)Save as provided in Rule 17, appointments to the Service shall be made by the following methods, namely :- (a) nto more than 50 per cent of the substantive vacancies which occur from time to time in the authorized permanent strength of the Service shall be filled by direct recruitment in the manner specified in Part Iv of these rules; and (b) the remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of these rules from amongst- (i) officers who are substantively borne on the cadre of Tehsildars employed in the Union territory of Delhi, Himachal Pradesh or Andaman and Nicobar Islands; (ii) officers who hold substantively any of the posts mentioned in Schedule Ii, Parts A or B; and (iii) officers who were considered for appointment to the Delhi and Himachal Pradesh Civil Service at its initial constituted though nto actually appointed thereto under rule 17 of the Delhi and Himachal Pradesh Civil ServiceRules, 1961, and who immediately before the commencement of the said Rules, held substantively and continue to hold- (A) any of the posts specified in Schedule I to the said rules as it stood at the commencement of the said rules, or (B) any of the posts under the Delhi Administration or the Himachal Pradesh Administration, carrying the same designation as any of the posts specified in Schedule 1;

(18) Provided that if at any time a sufficient number of suitable officers is nto available under clause (b), the requisite number of officers may, in consultation with the commission, be appointed to the Service by transfer of members of a State Civil Service or toher service;

(19) Provided further that ntohing in this rule shall preclude the Central Government from holding a vacancy in the service in abeyance, or filling it on an officiating basis in accordance with the provisions of Part Viii of these rules. (2) If the exigencies of public service so require, the Central Government may, in consultation with the Commission, vary the percentage of vacancies to be filled by each method specified in sub-rule (1).

(20) The only change made was in the first proviso to clause (b) of subrule (1) of this rule. Whereas in the 1961 Rules, the power to appoint transferees could be exercised within a period of three years from the constitution of the 1961 Service, the first proviso to clause (b) of sub-rule (1) of rule 5 of the Dhanics Rules gave power to appoint transferees 'at any time' if a sufficient number of suitable officers was nto available under clause (b) of sub-rule (1) of rule 5. thereforee, the persons who were members of the 1961 Service became members of Dhanics and recruitment to Dhanics was to be made from out of direct recruits; promtoees and transferees.

(21) Rule 29 of the Dhanics Rules read thus -

'THECentral Government shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below :- (i) in the case of persons appointed on the results of competitive examination or by selection under clause (b) of sub-rule (1) of rule 5, seniority in the service shall be determined by the order in which appointments are made to the Service: Provided that- (a) persons recruited on the results of the Competitive examination in any year shall be ranked infer se in the order or merit in which they are placed at the competitive examination on the results of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of a later examination. (b) the relative seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names are arranged in the list prepared under rule 14. (ii) The seniority of members of the Service appointed by transfer under the first proviso to sub-rule (1) of rule 5, and of those appointed at the initial constitution of the Service in accordance with the provisions of Part Vi of these rules, shall be determined ad hoc by the Central Government in consultation with the Commission, due regard being had to the posts previously held by them under the Central Government/State Government and the length of service rendered by them therein: Provided that in the case of persons appointed under the first proviso to sub-rule (1) of rule 5, or rule 17 if two or more persons belonging to the same parent service or Department are thus appointed, they shall be ranked inter se in the order of their relative seniority in the parent service or Department, as the case may be. (iii) The relative seniority of direct recruits and of promtoees shall be determined according to the rtoation of vacancies between direct recruits and promtoees which shall be based on the qutoas of vacancies reserved for direct recruitment and promtoion under rule 5.'

(22) It is again an admitted case of the parties that until November 29, 1967, no appointments were made to Dhanics by virtue of the first proviso to sub-rule (1) of rule 5 of the Dhanics Rules. Then came the ntoification dated November 3, 1966 ntoifying the amendments made in rules 5 and 29 of the Dhanics Rules. The result of the amendment, in short, was that the first proviso to clause (b) of sub-rule (1) of rule 5 was omitted and sub-rule (3) was added. Reference to the first proviso to clause (b) of sub-rule (1) of rule 5 in various rules including rule 29 of the Dhanics Rules were also omitted and they were substituted by the words 'sub-rule (3) of rule 5.' Rules 5 and 29 of the Dhanics Rules as amended read thus :-

'5.Method of recruitment : (1) Save as provided in Rule 17, appointments to the Service shall be made by the following methods, namely :- (a) nto more than 50 per cent of the substantive vacancies which occur from time to time in the authorised permanent strength of the Service shall be filled by direct recruitment in the manner specified in Part Iv of these rules; and (b) the remaining such substantive vacancies shall be filled by selection in the manner specified in Part V of these rules from amongst- (i) officers who are substantively borne on the cadre of Tehsildars employed in the Union territory of Delhi, Himachal Pradesh or Andaman and Nicobar Islands; (ii) officers who hold substantively any of the posts mentioned in Schedule Ii, Parts A or B; and (iii) officers who were considered for appointment to the Delhi and Himachal Pradesh Civil Service at its initial constitution though nto actually appointed thereto under rule 17 of the Delhi and Himachal Pradesh Civil Service Rules, 1961, and who immediately before the commencement of the the said Rules, held substantively and continue to hold- (A) any of the posts specified in Schedule I to the said rules as it stood at the commencement of the said rules, or (B) any of the posts under the Delhi Administration or the Himachal Pradesh Administration, carrying the same designation as any of the posts specified in Schedule 1. (2) If the exigencies of public service so require, the Central Government may, in consultation with the Commission, vary the percentage of vacancies to be filled by each method specified in sub-rule (1). (3) Ntowithstanding anything contained in sub-rule (1), during the period beginning with the commencement of the Delhi, Himachal Pradesh and Andaman and Nicobar Islands Civil Service (Third Amendment) Rules, 1966, and ending with the 1st December, 1967, if in the opinion of the Central Government the exigencies of the service so require, the Central Government may, in consultation with the Commission, appoint to the Service by transfer, members of a State Civil Service : Provided that no such appointment shall be made except with the consent of the member to be appointed and of the State Government concerned.'

'29.Seniority : The Central Government shall prepare a list of members of the Service arranged in order of seniority as determined in the manner specified below:- (i) in the case of persons appointed on the results of competitive examination, or by selection under clause (b) of sub-rule (1) of rule 5, seniority in the Service shall be determined by the order in which appointments are made to the Service: Provided that- (a) persons recruited on the results of the competitive examination in any year shall be ranked infer se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited, those recruited an the basis of an earlier examination being ranked senior to those recruited on the basis of a later examination; (b) the relative seniority inter se of persons recruited by selection shall be determined on the basis of the order in which their names are arranged in the list prepared under rule 14. (ii) The seniority of members of the Service appointed by transfer under sub-rule (3) of rule 5, and of those appointed at the initial constitution of the Service in accordance with the provisions of Part Vi of these rules, shall be determined ad hoc by the Central Government in consultation with the Commission, due regard being had to the posts previously held by them under the Central Government/State Government and the length of Service rendered by them therein: Provided that in the case of persons appointed under sub-rule (3) of rule 5, or rule 17 if two or more persons belonging to the same parent service or Department are thus appointed, they shall be ranked inter se in the order of their relative seniority in the parent service or Department, as the case maybe. (iii) The relative seniority of direct recruits and of promtoees shall be determined according to the rtoation of vacancies between direct recruits and promtoees which shall be based on the qutoas of vacancies reserved for direct recruitment and promtoion under rule 5.'

(23) The exercise of the power under sub-rule (3) of rule 5 was in point of time limited up to December 1, 1967 unlike the repealed first proviso to clause (b) of sub-rule (1) of rule 5. The power could be exercised only 'if in the opinion of the Central Government the exigencies of the service so require' and appointments in exercise of this power were to be made in consultation with the Commission.

(24) No appointment was made in exercise of the power conferred by sub-rule (3) of rule 5 until two days before the expiry of the period specified in this sub-rule when, as stated above, the two impugned ntoifications were issued on November 29, 1967.

(25) One ntoification appointed respondents Nos. 3 and 4, who, belonged to the Uttar Pradesh Civil Service, on probation to Grade I to the DHANICS. The toher ntoification appointed respondents Nos. 5 to 10, who belonged to various toher State Civil Services, on probation to Grade Ii of DHANICS. It is an admitted case of the parties that these respondents were already serving in Delhi on deputation from their various State Civil Services.

(26) The challenge to the validity of sub-rule (3) of rule 5 as being vocative of Article 14 was on the basis that it gave arbitrary power and was malafide. It is urged that by reason of sub-rule (3) of rule 5, arbitrary and uncontrolled powers have been taken to determine whether there is an exigency requiring the transfer of members of a State Civil Service; that under this power any one chosen by the Government can be appointed; that no test or criteria for judging the exigencies of service or for the number of persons to be appointed or particular individuals to be appointed have been laid down. As I read sub-rule (3) of rule 5, I find that the power to be exercised is nto unguided and is controlled by three conditions, namely, (1) it can be exercised only (a) within a specified period ending with December 31, 1967 and (b) if in the opinion of the Central Government the exigencies of the service so require; (2) the appointment to the Service could be made in consultation with the Commission and (3) the appointment is limited to members of a State Civil Service. In so far as the period during which this power could be exercised is concerned, it is undoubtedly shorter than the period mentioned in the repealed first proviso to clause (b) of sub-rule (1) of rule 5 of these Rules which authorised appointment of transferred 'at any time.' To this extent, thereforee, sub-rule (3) is beneficial to the petitioners and to toher members of the Service. Again sub-rule (3) requires that such appointments will be made only if in the opinion of the Central Government the exigencies of the Service so require. The formation of this opinion is nto entirely subjective. Such an opinion can be formed only if the exigencies of the service so require. There is no doubt that the expression 'exigency' has nto been defined. The variety of exigencies which may arise cannto really be defined. Nevertheless the word 'exigency' contemplates a pressing state of circumstances; stringency of requirement; pressing need; straits that which is needed; demand and requirement. Assuming that the petitioners are right in Contending that the existence or the nature of the exigency is nto to be disclosed to the Commission, it cannto be said that the formation of the opinion on the ground of exigency is wholly subjective. It is subject to scrutiny by the Supreme Court to a limited extent as has been held by re : Barium Chemicals Ltd. and antoher v. Company Law Board and tohers. In this case Shelat J. has observed as follows :-

'The words, 'reason to believe' or 'in the opinion of' do nto always lead to the construction that the process of entertaining 'reason to believe' or 'the opinion' is an altogether subjective process nto lending itself even to a limited scrutiny by the Court that such 'a reason to believe' or 'opinion' was nto formed on relevant facts or within the limits or within the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.

(27) Though an order passed in exercise of power under a statute cannto be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or currupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did nto honestly form its opinion or that in forming it, it did nto apply its mind to the relevant facts.

(28) Hidayatullah J., as his lordship then was, has made the following observations:-

'The words 'in the opinion of the Central Government' in Section 237 (b) indicate that the opinion must be formed by the Central Government and it is of course implicit that the opinion must be an honest opinion. The next requirement is that 'there are circumstances suggesting etc.' These words indicate that before the Central Government forms its opinion it must have before it circumstances suggesting certain inferences. Again an action, nto based on circumstances suggesting an inference of the enumerated kind will nto be valid. In toher words, the enumeration of the inferences which may be drawn from the circumstances, postulates the absence of a general discretion to go on a fishing expedition to find evidence. No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exist, the action might be exposed to interference unless the existence of the circumstances is made out. Since the existence of 'circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima fade. It is nto sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness.'

(29) thereforee, making the exercise of the power conditional upon the existence of an exigency is one safeguard. The second safeguard is consultation with the Commission at least in the matter of appointment of particular transferees. Moreover, the fact that the power can be exercised only up to specified short period introduces an element of reasonableness. After all, a rule cannto be struck down on the hyptohesis that the Government will act malafide. It is, thereforee, difficult to accept the contention that the power conferred by sub-rule (3) of rule 5 is uncontrolled and arbitrary and that it can be exercised by the Government for the purpose of a appointing anyone whom they choose.

(30) The next argument is that in the present case there did nto exist any exigency as contemplated by sub-rule (3) of rule 5 and, thereforee, even if a valid power existed, the exercise thereof is arbitrary. In support of this allegation, the petitioners have alleged that 'the sanctioned strength of the cadre in Dhanics, as shown in Annexure G, is 187, out of which, only 141 posts are specific duty posts under the Administrations of Delhi, Himachal Pradesh, and Andaman and Nicobar Islands, while the remaining posts, are distributed among the three categories of Dedutation Leave and Training Reserves. To man these 141 specific duty posts 138 officers of varying seniority as shown in Annexure 'H' were already available at the time the Government resorted to making appointment under sub-rule (3) of rule 5 of the Dhanics Rules, 1965. It is evident from the above facts that the Government could be said to be short of only 3 officers to man specific duty posts. There could be no 'urgent need' or 'emergency' to fill up this negligible margin as the respondents number 3 to 10 were already serving the Central Government in connection with the affairs of the Union Territory of Delhi, having come here on deputation.' Respondent No. 1 has replied to this allegation and it is said that 'the sanctioned strength of the cadre is 187 while there were only 138 officers in the cadre leaving a gap of 49. Further from the experience as has been stated above it was found that while the new recruits were still nto sufficiently experienced to man the higher posts promtoees did nto come up to the level that was expected of them. In any case by virtue of the ntoification No. 1/12/1966-DHS dated 27/12/1966 the amendment has been made in clause (a) of sub-rule (1) of rule 5 of Dhanics Rules of 1965 whereby figure 50 has been amended to read as the figure and fraction 66-2/3 thereby increasing the qutoa for direct recruits. Copy is filed herewith as Annexure R-2. The amendments are thus to the advantage of the petitioners.' This reply contains the reasons which led the Government to form an opinion that there was an exigency. It is nto open to us to say whether the opinion which was formed was correct or nto. All that we can attempt to find out is whether the reason which pursuaded the Government to form an opinion and to exercise the power is such that no reasonable person can form that opinion. In view of what is stated in the counter-affidavit of respondent No. 1 as qutoed above, it is nto possible for us to say that there was no exigency which could justify the formation of the opinion. To the argument that there were already persons of sufficient seniority in the service, and, thereforee, no more could be imported, my answer is that in spite of that the exigencies of service may require some more senior persons and, thereforee, the existence of some senior persons per se cannto be a ground for striking down the appointment of respondents Nos. 3 to 10 in DHANICS.

(31) It is no doubt true that the power under sub-rule (3) of rule 5 was exercised only two days before the last date mentioned in the sub-rule. But, that fact by itself cannto be taken to indicate that the power was nto exercised in the interest of exigencies of service. The further safeguard is consultation with the Commission in the matter, at least of appointment of transferees to the Service. Such a High Powered Commission will take care that only such persons will be appointed whose appointment will be conducive to the maintenance or even to the increase of the efficiency of the Service. For these reasons, I am nto impressed with the argument that sub-rule (3) of rule 5 confers arbitrary powers so as to be vocative of Article 14 of the Constitution.

(32) The next ground of attack is that respondents Nos. 3 to 10 were appointed to confer undue favors upon them. It is alleged that 'when so many officers of similar seniority were already available, the only ntoice of the Government in appointing Respondents Nos. 3 to 10 was to confer undue favors upon them, It is with this end in view that the Government made the impugned amendment which, thereforee, malafide.' Respondent No. 1 has justified the necessity for the appointment of respondents. Nos. 3 to 10 in the following words :-

'THEservice constituted in 1961 was a different service and antoher service was constituted in 1965. Each service was governed by its own rules. During this period also a large number of officers of State Civil Service were serving on deputation. In a growing service, matters had to be reviewed from time to time and whole constitution was reviewed in June 1966. It was thought that there was considerable force in the view put forth regarding the general deficiency of senior and experienced officers in the P.C.S. Cadre of Delhi and Himachal Pradesh. Even more important was the shortage of officers of the proper calibre and seniority and the preponderence of the promtoees affected the quality of the cadre as a whole. It was ntoed further that if this trend was allowed to continue the newly formed cadre was likely to run into serious difficulties in finding suitable personnel in future for maintaining high standard of efficiency in the administration of the Union Territory of Delhi. The main reason given for this state of affairs was that the rules of recruitment according to which 50 per cent were recruited by promtoion. Accordingly it was thought fit that immediate examination of the matter be made and the percentage of persons to be recruited by promtoion should be scaled down. It was also decided that the case of officers who were working on deputation and whose names were recommended by Delhi Administration should also be looked into. Thereafter views of the Governments of Delhi Administration, Himachal Pradesh and Andaman and Nicobar Islands were invited. All these were on receipt considered and it was decided to bring in the impugned amendment to the rules of 1965 so that services could be properly manned. This was done on the subjective approval of the Government which is nto justiciable in the interest of administration and also to reconcile various views taken up by the three administrations concerned. An over all review of the administrative problems justified the amendment inasmuch as there was a big gap between the authorised permanent strength of the. service and its actual strength. The gap could nto be filled immediately by direct recruitment and promtoion. Direct recruits take quite some time to get the necessary experience to man senior posts. Promtoees, who are drawn from a medley of sources could nto be expected to do adequate justice to the arduous and complex work which the capital city of Delhi needed requiring an alert and active mind and quick and correct response to its growing problems. The result was that the quality of the cadre was suffering as a whole to the prejudice of public interest. The induction of experienced officers from toher States could improve the stability and efficiency of the cadre. I also crave reference to a Parliament question on this aspect copy of which is filed as Annexure R-l.'

(33) I will repeat that what we have to determine is whether a reasonable person could take the action that was taken by the Government in the circumstances as they existed in the opinion of the Government. A mere reading of the reasons qutoed above effectively leads to the conclusion that the action in appointing respondents Nos. 3 to 10 was nto mala fide.

(34) A very cursory allegation has been made in the petition that it was for the purpose of conferring undue favors upon respondents Nos. 3 to 10 that sub-rule (3) was incorporated in rule 5. There .is no substance in this allegation because, apart from insufficiency of the material before us, if that had been the reason, the Government would have appointed respondents Nos. 3 to 10 immediately upon the amendment of rule 5 and would nto have waited until two days were left before the power could be exercised. The next challenge to sub-rule (3) of rule 5 is on the basis of Article 16 of the Constitution. It is urged that sub-rule (3) of rule 5 'adversely affects the existing rights of the petitioners and unilaterally adversely affects the petititoners' terms of service on which they were appointed, and, as such, is illegal.' It is further urged that because of the appointment of respondents Nos. 3 to 10, the chances of promtoion of the petitioners to Grade I of Dhanics and to the Indian Administrative Service have been adversely affected. Now, it is clear from the facts as disclosed in the annexure to the petition that respondents Nos. 3 to 10 are of the seniority of various years between 1946 to 1961 taking their length of service in their respective state Services into consideration. Respondents Nos. 3 and 4 have been appointed directly to the Selection Grade while respondents Nos. 5 to 10 have been appointed to Grade II. Assuming that all the Respondents Nos. 5 to 10 are selected to the Selection Grade on expiry of 12 years of service including the length of service in their respective State Services, the last of them would have entered the Selection Grade in 1973, whereas the petitioners would nto be eligible for selection to the Selection Grade before 1974. It is difficult for me to appreciate how the chances of promtoion of the petitioners to the Selection Grade have been adversely affected by the appointment of respondents Nos. 5 to 10. Btoh the Selection Grade of Dhanics and the posts in the Indian Administrative Cadre are selection posts so far as the petitioners are concerned. They have no right to be appointed. They will be appointed only if they satisfy the eligibility tests. Rule 4 of the Indian Administrative Service (appointment by Promtoion) Regulations, 1955 provides that the Committee appointed under these Regulations 'shall meet at intervals ordinarily nto exceeding one year and consider the cases of all substantive members of the State Civil Service who on the first day of January of that year, had completed nto less than eight years of service (whether officiating or substantive) in a post of Deputy Collector or any toher post or posts declared equivalent thereto by the Government.' A suitability list is to be prepared and the names of officers included in this list is arranged in order of seniority in the State Civil Service. This list is to be prepared from out of members of all the State Civil Services. Appointment to the Indian Administrative Service is to be made by selection. At the moment, the petitioners are nto even eligible for inclusion in the selection list because they have nto completed the minimum number of 8 years of service. If they are toherwise qualified, their names will be included in this list. Even if they had nto joined the Dhanics, the names of respondents No. 3 to 10 could have been selected for inclusion in this select list. For the purpose of appointment to the Indian Administrative Service, the petitioners would, in any event, have to compete with respondents Nos. 3 to 10 irrespective of whether the latter are members of Dhanics or of their respective State Services. thereforee, it is difficult for me to appreciate or understand the contention that by reason of the appointment of respondents Nos. 3 to 10 to Dhanics, the chances of promtoion of the petitioners to the Indian Administrative Service have been adversely effected.

(35) The last contention of the petitioners is that their seniority in Dhanics has been affected by the appointment of respondents Nos. 3 to 10 thereto and, therfore, sub-rule (3) of rule 5 is repugnant to Article 16 ofthe Constitution. One short answer to this contention is that sub-rule (3) of rule 5 does nto talk of seniority at all and rule 29 which provides for the determination of seniority has nto been challenged in this petition. However, I will deal with the argument with regard to seniority. Various cases have been cited to show that promtoion to selection posts is included in the guarantee under Article 16 of the Constitution as it is a matter relating to employment. Some of the cases on this subject have been dealt with by the Supreme Court in re : C.A. Rajendran v. Union of India and tohers, where Ramaswami, J. speaking for the Court has observed :-

'THErelevant law on the subject is well settled. Under Article 16 of the Constitution, there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promtoion from one office to a higher office, there under. Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each toher. In toher words, Art. 16 of the Constitution is only an incident of the .application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promtoion. It follows thereforee that there can be a reasonable classification of the employees for the purpose of appointment and promtoion. To put it differently, the equality of opportunity guaranteed by Article 16(1) means equality as between members of the same class of employees, and nto equality between members of separate, independent classes.'

(36) It is, thereforee, clear that the equality contemplated by Article 16(1) contemplates a reasonable classification of the employees for the purposes of appointment and promtoion. Ex facie, neither sub-rule (3) of rule 5, nor rule 29 affected the chances of promtoion of the petitioners. They say that their seniority is affected. According to them, they would have been senior to respondents Nos. 3 to 10 if the latter had been appointed to Dhanics in exercise of the pre-existing first proviso to clause (b) of sub-rule (1) of rule 5 of the Dhanics Rules. Rule 5, as I read it, talks of the sources from which members of the Service are to be appointed. The sources are (1) initial appointees under rule 17; (2) direct recruits under rule 5(l)(a); (3) promtoees under rule 5(l)(b) and (4) transferees either under the pre-existing first proviso to clause (b) of sub-rule (1) of rule 5 or under sub-rule (3) .of rule 5. It is clear that only two classes have been equated for the purpose of fixing seniority and these two classes are direct recruits and promtoees. I say so because the seniority of the promtoees in the subordinate posts held by them was to be taken into consideration only for the purpose of selection to DHANICS. Such seniority was nto to be taken into consideration for the purpose of the preparation of the seniority list under rule 29, Sub-rule (1) of rule 29 clearly provides that the seniority of persons appointed from these two sources shall be determined by the order in which appointments are made to the Service. The only provision made with regard to these two classes is by clause (iii) of rule 29 which provides for the fixation of relative seniority of appointees from these two sources on the system of rtoation. To my mind there is no difference in the fixation of seniority of the transferees who were or could be appointed either under the first proviso to clause (b) of sub-rule (1) of rule 5 or under sub-rule (3) of rule 5. The length of service of these transferees had to be taken into consideration under sub-rule (ii) of rule 29 for the purpose of fixing their seniority in DHANICS. thereforee, if sufficiently senior members of the respective State Services were appointed to Dhanics ever since 1965, the seniority of the direct recruits was bound to be affected btoh by the appointees under rule 17 and the appointees under the aforesaid first proviso or sub-rule (3) because the length of service of the transferee had to be taken into consideration. In effect, the contention of the petitioner comes to this that even if any transferees are to be appointed to the service, they should be such whose length of service in their respective State Services would nto affect the seniority of the petitioners under rule 29. They are, thereforee, challenging the method of recruitment, I do nto think the petitioners are entitled to do so because they have nto challenged the virus either of the aforesaid first proviso or of rule 29 and the only challenge to subrule (3) is really on the ground of Article 14. Even if rule 29(iii) were challenged as vocative of Articles 14 and 16, the contention will have no force because the sub-rule provides for sufficient guidance. Under this sub-rule the seniority of members appointed by transfer under the first proviso to sub-rule (1) of rule 5 and of those appointed at the initial constitution of the Service in accordance with the provisions of part Vi of the Rules has to be determined in consultation with the Commission and after paying due regard to the posts held by them and the length of service. If their recruitment could be validly made as decided hereinbefore, then such members will constitute a different class and the re-exist proper checks and guide-lines for the exercise of power.

S.K.Kapur J.

(37) I agree. The further contention of the petitioners is that respondents Nos. 3 and 4 could nto be appointed directly to Grade I (Selection Grade) of Dhanics and that they should have been appointed, to Grade If. This argument is also based upon a misconception of the true meaning of the rule. It is clear from the provisions of rule 3, that there is only one service which contains two grades, one of them being a selection grade. Appointments to the service are to be made under rule 18 which authorises appointments to be made to Grade I or Grade Ii of the Service. Sub-rule (2) of rule 30 provides that a direct recruit shall on appointment to the service, draw pay of the minimum of the time scale i.e. Rs. 300.00. It further provides that the pay and increments in the case of toher persons appointed in the Service shall be regulated in accordance with the Fundamental Rules. It is clear from clause (a)(ii) of Fundamental Rule 22 that on appointment a person who is already in Government service will draw as initial pay the stage of time-scale which is equal to his substantive pay in respect of the old post, or if there is no such stage, the stage next below that pay plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for the period after which an increment is earned in the time-scale of the new post which is less. To give an instance, take the case of a promtoee. Even though he may be junior in the seniority list to a direct recruit, his pay will be fixed according to Fundamental Rule 22 and he may be drawing a pay on appointment to the Service which is higher than the pay of a direct recruit. thereforee, in making appointments of respondents Nos. 3 to 10, the Government had to fix their pay in the Service. If the pay so fixed fell in the selection grade, the appointment, subject to suitability, will be in the selection grade and if the pay so fixed falls in the time-scale of Grade Ii, the appointment will be in Grade II. There is, thereforee, no substance in the contention of the petitioners that respondents Nos. 3 and 4 could nto have been appointed in the selection grade. In the result, the petitions fail and are hereby dismissed. At the same time I cannto say that the petitions are frivolous and, thereforee, I would leave the parties to bear their respective costs.


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