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Joginder Lal Sawhney and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1122 of 1975
Judge
Reported inILR1977Delhi399; 1977LabIC1243
ActsCentral Secretariat Service Rules, 1962 - Schedule - Article 16
AppellantJoginder Lal Sawhney and ors.
RespondentUnion of India and ors.
Advocates: S. Pappu,; C.R. Soma Sekharan,; Harish Chandra,;
Excerpt:
.....service, were allowed to sit, along with assistants belonging to the latter service, at the limited departmental competitive examination, held in 1975 for preparing a list of candidates qualified for the grade of section officers in the central secretariat service. this was done as per regulations made by the department of personnel and administrative reforms under clause (2) of paragraph 2 of the fourth schedule to the central secretariat service rules, 1962. the present writ petitioners objected to it, on the grounds (1) that the regulation concerned was `ultra vires' of the said rules, and (2) in the alternative, that the relevant rule itself was unconstitutional, being vocative of articles 14, 16 and 309 of the constitution.; as regards the first ground, the court took the..........and the fourth schedule thereof is such that only the assistants arc meant to compete at the said limited departmental competitive examination. lender clause (2) of paragraph 2 of the fourth schedule of the rules, 'the rules for the limited departmental competitive examinations referred to in clause (1) above shall be as determined by regulations made by the department of personnel and administrative reforms. cabinet secretariat and the allotment of candidates from the results of these examinations to the various cadres shall also be made by that department.' it is alleged that insofar as these regulations enabled the stenographers to competeat the examination along with the assistants, they are ulira virus of the rules. secondly, it is said in the alternative that if the regulations.....
Judgment:

V.S. Deshpande, J.

(1) In the Limited Departmental Competitive Examination held in 1975 for the preparation of a list of candidates qualified to be appointed to the Grade of Section Oificers in the Central Secretariat Service, along with Assistants who are a part of the said Service, Stenographers belonging to Grade Ii of the Central Secretariat Stenographers' Service who do not belong to the Central Secretariat Service, are also allowed to compete. This is objected to by some of the Assistants who have filed this writ petition. The attack on the decision of the Union of India (Respondent 1) taken after consultation with the Union Public Service Commission (Respondent 2) to allow the Stenographers to compete at this examination along with the Assistants is based on two alternative grounds. It is firstly alleged that the scheme of the Central Secretariat Service Rules, 1962 and the Fourth Schedule thereof is such that only the Assistants arc meant to compete at the said Limited Departmental Competitive Examination. Lender clause (2) of paragraph 2 of the Fourth Schedule of the Rules, 'the rules for the limited departmental competitive examinations referred to in clause (1) above shall be as determined by regulations made by the Department of Personnel and Administrative Reforms. Cabinet Secretariat and the allotment of candidates from the results of these examinations to the various cadres shall also be made by that Department.' It is alleged that insofar as these regulations enabled the Stenographers to competeat the Examination along with the Assistants, they are ulira virus of the Rules. Secondly, it is said in the alternative that if the regulations are not ultra vires, then the relevant Rules themselves are unconstitutional being contrary to Articles 14, 16 and 309 of the Constitution.

(2) The Rules are themselves made by the Department of Personnel and Administrative Reforms under the proviso to Article 309 of the Constitution. The same Department is authorised to make the regulations under clause (2) of paragraph 2 of the Fourth Schedule. The first regulations made in 1964 enabled the Stenographers to compete along with the Assistants at the Limited Departmental Competitive Examination. The question whether Assistants alone should be allowed to compete or whether Stenographers also should be allowed to compete at the said Examination is entirely administrative. There is no law involved in it. It would require strong evidence in the language of the Rules to show that the Government Department which framed the Rules, which also framed the regulations and which acted upon the same by allowing the Stenographers to compete at the said Examination from 1964 to 1969 did not know its own mind as retlected in the language of the Rules. Such strong evidence is not forthcoming from any provision of the Rules.

(3) The basic provision is contained in clause (1) (c) of paragraph 2 of the Fourth Schedule. Sub-clauses (a) and (b) refer to Assistants joining the Section Officers' Grade either by selection or by seniority. Sub-clause (c) speaks of persons who can become Section Officers by success at the limited departmental competitive examination. This sub-clause was originally numbered as sub-clause (b) when the regulations were first framed and acted upon by allowing the Stenographers to appear at the said examination. The crucial words of sub-clause (c) are 'persons selected on the results of the limited departmental competitive examinations'. It was argued by Mrs. Shyamla Pappu that the word 'persons' must be construed in the context of the scheme of the Rules to mean only 'Assistants' and no other persons. The reasons in support of the argument are that the Central Secretariat Service which contains the Grade of Section Officers. also contains the Assistants but does not take in the Stenographers who have a separate Service of their own. But this cannot necessarily mean that the posts of Section Officers are to be filled up only by Assistants. Even the Rules as originally framed contemplated Stenographers filling up the posts of Section Officers. For instance, rule 12(2) allows Stenographers with certain experience and who have acted as Section Officers for two years to be included in the Select List for Grade I of the Service. This means that for two years Stenographers were allowed to act as Section Officers with a view to promotion to a Grade above the Grade of Section Officers. This Grade I is also in the Central Secretariat Service. The assumption made on behalf of the petitioners that persons outside this Service are not to come into the Service to occupy any Grade in the Service is, thereforee, not warranted. If Grade I of the Service could be filled up partly by recruiting Stenographers, there is no a priori reason why the Grade of Section Officers cannot be filled up partly by Stenographers.

(4) On the other hand, the word 'persons' in subclause (c) is used in significant contrast to the word 'Assistants' used in subclauses ( a) and (b) of clause (1) of paragraph 2 of the Fourth Schedule. If the intention of clause (1) (c) had been to confine entry to the limited departmental competitive examination only to Assistants, then nothing was simpler and more in line with sub-clauses (a) and (b) than to use the word 'Assistants' in sub-clause (c) also. But despite the fact that sub-clauses (a) and (b) use the word 'Assistants' sub-clause (c) uses the word 'persons'. The only inference possible in that sub-clause (c) was not intended to be confined to Assistants but was meant to allow other departmental candidates to appear at the examination Unless this was the definite intention, sub-clause (c) could not have departed from the phraseology of sub-clauses (a) and (b). The significance of the word 'limited' qualifying the departmental competitive examination seems to be that not all the departmental candidates but only some of them are to be admitted, to the examination. This is why only the Assistants and Stenographers with the requisite experience and qualifications have been admitted but no others have been admitted. The word 'limited' cannot mean limited to Assistants because sub-clause (c) has been deliberately phrased in wider language than sub-clauses (a) and (b) of clause (1) of paragraph 2 of the Fourth Schedule.

(5) It was then pointed out that in rule 17(4) provision is made for the reversion of persons who are on trial and who are not found suitable at the end of their probation. Such persons are to be reverted to the next lower Grade. It is argued that the word 'Grade' is defined in section 2(k) to mean any of the Grades described in rule 3 in the Central Secretariat Service. It is then sought to be inferred from this that persons on trial could not include persons who could not be reverted to a Grade in the Service but who on reversion would go back to the Stenographers Service. It is true that there seems to be no provision in the Rules that the Stenographers who are cm trial and who are not found suitable to be appointed as Section Officers would go back to the Stenographers Service. But the words ''shall be reverted to the next lower Grade' would generally mean that the persons on trial would go back to the Grade from which they had been lifted up. For the Assistants, it would be the Grade of the Assistants and for the Stenographers it would be the Grade of Stenographers, both of them being lower to the Grade of Section Officers in a general sense. Strictly speaking, rule 17(4) should have made this clearer by adding the words 'of the Central Secretariat Service or of the Central Secretariat Stenographers Service'. But the omission to add these words would only mean that there is a lacuna in rule 17(4). This would not mean that a Stenographer on reversion would not go back to his own Service even though the rule does not expressly say so. For this reason, we are unable to infer that the word ''persons' used in clause (1) (c) of paragraph 2 of the Fourth Schedule is not to be taken in its general dictionary sense to include either Assistants or Stenographers provided that they belong to a Department of the Government and are thus qualified to appear at the limited departmental competitive examination.

(6) The second objection is as to the constitutionality of the Rules particularly clause 2(1) (c) of the Fourth Schedule. It is urged that the Assistants do work which is more akin to the work of Section Officers while the Stenographers do totally different work. It is also said that Assistants should be graduates while Stenographers could be only metriculates. It is said that these unequals are being treated as equals for the purpose of appearing at the limited departmental competitive examination and thereby Article 16 read with Article 14 of the Constitution is contravened. We are not convinced, however, that Stenographers Grade Ii are in any way inferior to Assistants. Firstly, both of them enjoy the same scale of pay. Secondly, many of the Assistants are promotees from the Grade of Clerks for which the qualification required is only metriculation. Thirdly, an expert body like the Third pay Commission has recommended that Stenographers should be allowed to compete at the limited departmental competitive examination. The Union Public Service Commission has also been consulted and has agreed to this proposal. The Government of India also have taken into consideration the stagnation suffered by the Stenographers before allowing them to appear at the limited departmental competitive examination. Lastly, the work done by the Stenographers as Personal Assistants to Officers is of a higher kind than the work done by the Assistants. Their experience, thereforee, takes in work which is of a higher kind than the work done by the Assistants. All these factors must have been taken into consideration before the Government took the impugned decision. Finally, it is only a person who passes the limited departmental competitive examination who is allowed to become a Section Officer. This is a common test for both the Assistants and the Stenographers. After passing these tests they stand on a footing of equality. Any difference in their qualification and experience prior to the passing of the tests then becomes immaterial. Articles 16 and 14 are not, thereforee, violated.

(7) It is to be noted that Stenographers were allowed to appear at the limited departmental competitive examination from 1964 to 1969. It is only because in 1970 when a new avenue of promotion was opened to the Stenographers in their own Service that their eligibility at the limited departmental competitive examination was discontinued. But on second thoughts, the Government decided in 1973 to allow them to appear at the examination in view of the recommendation of the Third Pay Commission. We see nothing wrong in this.

(8) For the above reasons, the writ petition is dismissed with no order as to costs.


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