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Om Parkash and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 71 of 1973
Judge
Reported inILR1981Delhi463; 1980RLR706
ActsIndian Foreign Service (Branch B) (Recuitment Cadre, Seniority and Promotion) Rules, 1964 - Rule 13
AppellantOm Parkash and ors.
RespondentUnion of India and ors.
Advocates: Madan Bhatia,; D.P. Wadhawa and; A. Ahlawat, Advs
Cases Referred(See Ep Royappa v. State of Tamil Nadu
Excerpt:
.....during the maintenance stage i.e. between 1-4-1959 and 1-6-1964, it was decided to induct direct recruits into the service on the basis of the quota of 25 percent of the vacancies during the maintenance stage. the principle of quota of 25 per cent was made known to the direct recruits, while investing options for appointment to indian foreign service (branch b). in the rules of 1964 this quota principles of 25 per cent was recognised in rules 13 and 25. the relative seniority of direct recruits and promotees is governed by a memorandum of ministry of home affairs dated 22-12-1959, which laid down that the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on..........'b')- the respondent union of india, have fixed the seniority of these five appellants who are direct recruits and the respondents nos. 3 to 121 who are departmental promotees according to the date of their recruitment irrespective of the fact whether they belonged to one class or the other. the direct recruits contend that their seniority should be fixed on the basis of (1) quota of 25 per cent reserved for them in the service, and (2) on the principle of rotation of 3:1. this means that after every three departmental, promotees one direct recruit will get confirmation in the list of seniority. (2) the ministry of external affairs of the government of india published a list of seniority of promotees and direct recruits on 8th august, 1971 prepared on the basis of the date of.....
Judgment:

Avadit Behari Rohatgi, J.

(1) This is a straight fight between the direct recruits and departmental promotees. They fight on the question, of seniority. Both are members of Indian Foreign Service (Branch 'B')- The respondent Union of India, have fixed the seniority of these five appellants who are direct recruits and the respondents Nos. 3 to 121 who are departmental promotees according to the date of their recruitment irrespective of the fact whether they belonged to one class or the other. The direct recruits contend that their seniority should be fixed on the basis of (1) quota of 25 per cent reserved for them in the service, and (2) on the principle of rotation of 3:1. This means that after every three departmental, promotees one direct recruit will get confirmation in the list of seniority.

(2) The Ministry of External Affairs of the Government of India published a list of seniority of promotees and direct recruits on 8th August, 1971 prepared on the basis of the date of recruitment. The direct promotees challenged the fixation of seniority as made by the Government in that list. They brought a writ petition in 1971. A learned single judge of this court dismissed the petition on February 16, 1973. From his decision this letters patent appeal has been brought.

(3) It is necessary to set out in brief outline the history of the Service. The Service was constituted on 1st August, 1956 by amemorandum issued by the Government of India, Ministry of External Affairs entitled as the Initial Constitution of Indian Forgin Service, Branch 'B'1956, Recruitment to theServie is made from two surces, that is,(1) departmental promotees and (2) direct recruits.

(4) APPLLEANTS1 to 4 were appointed to the Service on 11th February,1963,as a result of direct recruitment on the basis of Ias and other Allied Service'Exaamiination held by the Union Publice ServiceCommission (the Commisssio) in 1961. Appllant No. 5 was appointed in the Serviece on21st April, 1064 as a result of direct recuitment on the basis of Indian Administrative Service Examination held in 1962. The inititlal constitution of this Service was closed in early 1959.

(5) The statutroy rules of Service called Indian Foreign Service (Branch B) (Recruitment, Cadre,Seniority and Promotion) Rules, 1964 were promulgated o 1st June, 1964 by the President o of the India in exercise of the powers conferred by the proviso to Article 309 of the Constitution.

(6) Before we come to the Rules it is important to see what happened in the interegnum, that is, after the close of the initial constitution of the Service on 1st April,1964.This is techniclally called ' the maintence stage'. During this period what ahppended was that the principle of wquota was greed upon. A decision was taken to induct direct recruits into the Service on the basis of the quota of 25 per cent of the vancles during themaintence stage. The Union of India in their lefter dated May 31, 1962suggested that 25 per cent quota for direct recruits be reserved in respect of the vancies during the maintence stage (April 1, 1959 toJune 1, 1964). They approached the Commission suggesting that 25 per cent of the vancies which had arisen after the inital constitution shoudl be filled through the Indian Administrative Service etc. Examinaton. It was also proposed that since 125 persons had already been promoted to the Section Officers' Grade since the close of the initial constitution 31 persons should be recruited throgh the Indian Administrative Service Examination held by the Commission. The Commission agreed to the proposal vide their letter dated 26th June, 1962. Accordingly 25 direct recruits were appointed as Section Officers on the basis of the Ias etc. Examination held in 1961 and 1962.

(7) It is thereforee clear that 25 per cent quota was reserved for the direct recruits. That this is so is also borne out by the fact that while inviting options for appointment to its (B) the letter dated 11th October, 1963 addressed to the direct recruits contained inter alias the following condition of service:

'25per cent of the maintenance vacancies in the integrated Grade Ii and Iii of the Indian Foreign Service, Branch 'B' (Class II) are filled by direct recruitment through the Union Public Service Commission.'

In the Rules of 1964 'this quota principle of 25 per cent was recognised in Rules 13 and 25.

(8) So much about the quota. As regards the principle of rotation the Government of India, Ministry of Home Affairs, had issued a memorandum dated 22nd December, 1959 which laid down the general principle for the determination of the seniority of all persons appointed to the various Central Services after that date: 'Relative seniority of direct recruits and promotees.

'THErelative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the recruitment rules.'

This general principle was confirmed in the memorandum dated 27th December, 1963 of the Ministry of Home Affairs relating to confirmation of persons appointed prior to the finalisation of recruitment rules. This memorandum says: in making confirmation after the date of the promulgation of recruitment rules, it is obligatory to make confirmations strictly in accordance with the rules.................... The question of relaxation of the quotas prescribed in the recruitment rules for the purposes of confirmation of such persons has been considered in consultation with the Ministry of Law and it has been decided that after promulgation of the recruitment rules, confirmation should necessarily take place only in accordance with the quotas prescribed in the rules. But if it is desired to make any departure from the prescribed quotas in making confirmations' of persons recruited prior to the promulgation of the recruitment rules, it would be necessary to incorporate a saving provision to that effect in the rules themselves.' The principle of rotation was also embodied in the rules of 1964. Rule 25 provides that the relative seniority of the promotees and the direct recruits 'shall be determined according to the rotation of vacancies' and 'the rotation shall be based on the quotas of vacancies reserved for promotion or recruitment respectively in these rules.'

(9) thereforee, the two principles, namely, the principle of quota prescribed for direct recruits and the principle of rotation for the fixation of relative seniority of direct recruits and promotees. seem to have been established before the rules were promulgated in 1964. The rules gave a statutory recognition to these two principles.

(10) Rule 29-A gave power to the controlling authority, that is, the Ministry of External Affairs, to relax any of the rules. Rule 29-A reads : 29-A Power to relax: Where the Controlling authority is of opinion that it is necessary or expedient so to do. it may be order, for reasons to be recorded in writing relax any of the provisions of these rules 'with 'respect: to any class or category of persons or posts. Provided that in relaxation to posts falling within the purview of the Commission no order in respect of a class or category of persons or posts shall be made except after consultation with the Commission.' Rule 29-A was not in the original rules. It was brought in by an amendment of 1969 and 1971.

(11) The Government, it appears, faced difficulties in the matter of confirmation and fixation of seniority of direct recruits and promotees. Though they were bound to follow Rule 25 which had laid down the principle of quota and rotation of vacancies among direct recruits and promotees, they took an unusual course. On 8th October, 1971 the Government of India, Ministry of External Affairs, issued the following order :

INexercise of the powers conferred by the provisions of Rules 29 (a) of the India Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1964, the Controlling Authority in the Ministry of External Affairs is pleased to relax the provisions of sub-rule (l)(ii) of role 25 of the Rules ibid. for purposes of fixation of seniority of the officers of the Integrated Grades Ii and Iii of the General Cadre of the its (B), promoted/appointed before 1-6-1964.'

(12) Immediately after this order of October 8, 1971, on that very day, a seniority list of officers, namely, direct recruits and promotees called 'Section Officers integrated Grade It and Iii of the General Cadre of the its 'B'' was issued as on October 1, 1971. It is this list which is the subject matter of attack by direct promotees in this appeal. Their case is that after they bad successfully completed the maximum period of probation of four years they were entitled to confirmation and in terms of seniority they were entitled to rank in the list on the basis of the principle of 25 per cent quota and the rotation rule. Appellants I to 4 finished their period of probation on 10th February, 1967. In the case of appellant No. 5 probation of four years expired on 20th Aprl. 1968. After these dates they claim that they were eligible for confirmation in accordance with the rules in force and their conditions of service. The seniority list of 1971 which is the bone of contention is not based on the principle of rotation and quota. It is based on the principle of length of service and no other. That this is so is evident from the fact that the controlling authority found it necessary to relax rule 25 which gave recognition to the two principles of quota and rota.

(13) The question for decision is whether the seniority list which has been prepared after relaxing rule 25 is a valid list The direct recruits no doubt have not been (given their due place which would have been theirs in this list if the principle of quota and rotation had been strictly adhered to. But the Government's answer is that they need not follow this provision because they have the 'power to relax'. What is the exact cannotation of this power to relax and whether this power has been vulidly exercised we are called upon to decide. In other words it is the validly of the order dated 8th October, 1971 which is in issue before us.

(14) The learned judge took the view that Rule 29-A conferred an 'all comprehensive power' on the Government and they were empowered to assign such seniority to the direct recruits as they have done in the list in question. We do not agree. The power to relax does not mean the power to dispense with a rule altogether. The Government dispensed with rule 25 in the case of direct recruits. This amounts to abrogation or repeal of that rule in so far as it reserves for the direct recruits the quota of 25 per cent and the necessary principle of rotation. Both these principles were thrown to winds. The claims of. direct recruits were passed over in silence by resorting to the power to relax. It also meant that the service conditions of direct recruits were totally ignored. It set at naught the conditions of appointment which were offered to direct recruits at the time their option was invited. All this has been done in order to placate the promotees. But no power can be exercised to the detriment of 'any class or category of persons or posts' so as to confer a corresponding benefit on another class or category of persons or posts. This is exactly what has been done in this case. This is robing Peter to pay Paul, as counsel put it.

(15) Relax is a word of common use, and of commonly und erstood meaning. The ordinary significance of the term is to lessen, loosen, reduce, mitigate, make less rigid or severe. It is not synonymous with 'abandon.' (Carpus Jurisdiction Secundum Vol. 76 p. 625).

(16) The power to relaxsavours of of the suspending and dispensing power of the King during the latter seventeenth century England. The King could suspend temporarily the operation of any statute or dispense with the laws. The English Parliament found that this power was capable of dangerous applications. The Bill of Rights 1688 abolished the King's alleged power of suspending laws and dispensing with the operation of statutes, save where this was authorised by Parliament.

(17) It is difficult to see how any rule which determines the rights inter se of two classes of employees can be relaxed. Power under rule 29A can be exercised to relieve hardship in a rare case or for the exigency of service as a whole and not for this wing or that wing of the Service. It certainly cannot 'be exercised for the purpose of benefitting one class at the expense of another class of employees in violation of the rules. That a large number of representations were made and that it created a difficult situation for the Government was not a sufficient justification for invoking the power to relax as was thought by the learned judge. If we hold, as was held by the learned judge, that the Government had absolute discretion to dispense with a particular rule or to 'relax' it in any manner it liked rule 29-A would Buffer from the vice of excessive delegation and would be bad on that short ground. Power to relax is not power to annul or to destroy. Whatever the term 'relax' may mean it is not synonymous with repeal or abrogation.

(18) Power to 'relax' if it is exercised in such a manner as has been done in this case may well amount to a subordinate legislative power. The power to relax is not coextensive with power to legislate. Rule making power is given only to the President under Article 309 of the Constitution. The exercise of power in an arbitrary manner may amount to the usurpation of the presidential power to legislate. In our opinion, the order dated 8th October, 1971 strikes at the very root of the rules and must be held to be illegal and without jurisdiction. This is our conclusion.

(19) There is another reason too for coming to this conclusion. Rule 29-A says that where the controlling authority is of opinion that it is necessary or expedient so to do, it may by order, for reasons to be recorded in writing, relax any provision of these rules with respect to any class or category of persons or posts. In the order dated 8th October. 1971 no reasons have been recorded. The order seems to have been passed in the teeth of a positive requirement of the rule. To give reasons is a positive obligation of the controlling authority. This point was taken before the learned judge. He held that the nothings on the files by the various officers and departments constituted reasons in writing. He said this ;

THEwhole question was examined by the Government of India extensively and there had been a good deal of noting by the various authorities con erned and eventually resort was made to exercise power under Rule 29-A. That itself amounts to the recording of reasons in writing to relax the provisions of Rules 13(i) and 25 of the Rules.'

We cannot accept this view. Reasons have to be recorded in. the order. (See Narayan Das v. State of M.P., : 1972CriLJ1323 . Reasons are grounds of action. They have to be stated explicitly. A court of law is not to discover reasons for the controlling authority from its files and nothings. If the authority does not give reasons we are entitled to assume that it had no good reasons' to give for dispensing with rule 25. Whenever a legislature or a law making authority prescribes the condition. that if a departure from a normal condition is to be made the Minister or official must record his reasons in writing, it is intended to limit the exercise of the discretionary power. As Lord Radcliffe said in Nakkuda Ali v. Jayaratne, 1951 Ac 66(77) (2):.

'HOWEVERread, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power.'

e requirement of reasons is a salutary provision. It is a curb upon power irrespective of the person or institution who weilds it. Rule 29-A does not confer an uncontroller or 'all comprehensive power' on the Controlling Authority as the learned judge thought. That the Government made adeparture from rule 25 canot be denied. Did the Government record: its reasons for doing so 'None. As early as 1963 the Ministry of Home Affairs in their letter dated 27th December 1963 had categorically stated that if it is desired to make any departure .from the prescribed quotas' in making confirmation. to persons it would be necessary to incorporate a 'saving provision' to that effect in the miles itself. Ther.is no 'saving provision' in the Rules provid ing for a departure from the well recognised methods of confirmation which in the case of direct recruits were quota and rota. A 'saving provision' is as different from 'power to relax' as chalk from cheese. A saving clause means an exception of a special thing out of the general thing mentioned in the statute. It is not an 'all comprehensive power' as is claime for the .power to relax. We must hold that in this case there is naked abrogation of Rule 25 under the thin guise of relaxation.

(20) The learned judge held that the controlling authority had also relaxed rule 13 of the Rules. This is not so. Nor wax this the ease of the Government. The order dated 8th October 1971 does not say so in terms. It only refers to rule 25. thereforee rule 13 reserved 25 per cent of the vacancies for the direct recruits for aperiod of five years from 1st June 1964 and thereafter 33-1/3 per cent of the vacancies. The remaining vacancies over to be filled by the promotees in the order of seniority. So long as rule 13 and the memoranda dated 22-12-1964 and 27-12-1963 remained in the field the seniority list could not be prepared in the manner as was done.

(21) The learned judge held that under rule 21(3) the controlling authority had the power to assign seniority to direct recruits which could not be challenged by them. Rule 21(3) says :

PERSONSappointed to the Service after the initial constitution and up to the appointed day shall have the seniority already assigned to them by the controlling authority.'

The fact is that the controlling authority had not assigned any seniority to direct recruits or promotees before the rules came into force. For the first lime it was fixed in October, 1971, long after the rules had come into force. Prior to this no other senio'rity list was published. thereforee, rule 21(3) in our view can'not assist the Government in their defense. The learned judge Held that the appellants were appointed on a temporary basis and thereforee they cannot challenge the list. We do'not agree. The service conditions clearly laid down that 25 per cent quota was reserved for their appointment and that they were entitled to be confirmed on the expiry of the maximum period of probation of four years. The conditions of appointment said :

'THEpost is temporary but is likely to become permanent; and your claim for absorption will be considered in accordance with the rules in force.'

Now the rules in force provided that 25 per cent of the vacancies, whether temporary or permanent, would be filled in by direct recruits. thereforee on the expiry of the period of probation the appellants were eligible for confirmation 'in accordance with the rules in force.' The service conditions cannot be whittled down merely because an appointment is initially made on a temporary basis.

(22) One point may be clarified here. Before the learned judge both parties agreed that the Rules of 1964 applied to this case. In fact parties' counsel made statements before him to this effect.

(23) The appellants have also invoked Article 16 of the Constitution in support of the contention that by reason of the order dated 8th October, 1971 they have been unfairly treated and unjustly discriminated. In obliterating the distinction between promotees and direct recruits for the purpose of fixing p their seniority, the Government has not only abandoned the quota principle but has also given undue preference to the promotees and has thus treated two different classes alike, regardless of the sources from which they were recruited in the Service. We are much impressed by the force of this reasoning.' (See Ep Royappa v. State of Tamil Nadu : (1974)ILLJ172SC .

(24) For these reasons we allow the appeal and set aside the order of the learned judge dated 16th February, 1973 and direct the Government to reframe the list of seniority in so far as the appellants are concerned in accordance with the rules of 1964 and in the light of what we have said in this judgment. The parties are left to bear their own costs.


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