UNtON OF INfiIA

Ii.

GU~NAM SINGH

May 3, Ii

r&.s. P>.mAt ANo Its. 'VsNx:>.tARAr.i•Au, iJ .1

 High Court Judges' (Conditions of Strvlct) -ict 1954-Section and rules

tt11JiJHTIHl!rtlldtr~Rlll• 2-Scop• of-A Judg< on'retirem<nt-Wheth<rentitleilid cash equiralent of leave salary.

On his retirement as Judge of the Punjab and Haryana High Court the re•· pondent claimed cash equivalent 'of leave salary in respect of the unutilised earned leave standing to his redit. His clai'm was rejeCted by the Government.

Allowing his petition under Article 226 of the Constitution the High Court l) directed the Government to pay the leave salary claimed by him.

In its petition for grant of special le&Ye the apellant contended that the High Court Judges' (Conditions of Service) Act 1954 being a complete code govemiDg the conditions of service of High Court Judges it would not be per missible to proceed beyond those provisions. to discover any further rights ia favour of the Judges of tho High Court.

Dismissing the petition, ·

HELD~ The High Court was right .in upholding tho respondent's claim tor payment of the cash equivalent of leve salary in respect of the period of unuti lised earned leave at the credit of the Judge on -the date of his retirement in accordance with the provisions of rule 208 of the All India Services (Leave) Rules 1955 read with rule 2 of the High Court Judges R_ulos 1956. [706 Ji.CJ

Section 24(2)(a) of the 1954 Act enables the Central GoV.mment to make rules in respect or, among others, "any otbei' matter which has to be or could be

prescribed." [703 Bl

The second proviso to rule 2 of the High Court Judges' Rules, 1956 provides that, in the case of a Judge of the High Court oC Punjab and Haryan, if no pro.. vision had been expressly made in the 1954 Act~ as to the conditions of his service, they shall be determined by the rles applicable to a member of the Indian Administrative Service of thC rank of Joint Secretary to, the Government o! India stationed at New Delhi. Rule 20B of All India Services (Leave) Rules 1955, whiCh is the rule applicable lo a member of the Indian Administrative Service of the rank of Joint Secretary to the Government of India stationed at New Delhi, entitles him on retirement from service to the cash equivalent of leave salary in respect of the period of unutilised earned leave subject to a maxi mum of 180 days. By virtue of rule 2 of the High Court Judges Rules 1956 this ...

UNION l/, GUIUIAM SINGH (Pathak, J,) 701

benefit "'°'t \JO read ·a con<\itio11 of 110rvi!!O ollio~ by a Ju<!ae of tho High <; our1. [704 B-C, 7ps ABl

The concept of ''oarned loave" is ombodded in 'the 1954 Act under which the time spent by S Judge on duty constitutes the primary ingredient in the COD• cept of -"actual service" which ;, the reason .t!r crediting JolvC in tl?ie leive a1+ount of a Judge. AJl\l.ouih !hA llllPJ•iPl! 'lrd !lllY~" iJ QOt ell!i!loYed iij the !~54 At the fµnd.qieµtal jl!emj~ f~! graql 9f le.ye I~ 8 'J\l'I" is t~11-t be

as earned it.

Tat a Judge CffD~ the !~•v• w, hic~ (~ f~~!te~ t~ 1!i! !~ve ''copnt is borne outby the proviso to s. 6 of jhe 1951 Ai; t. The CJ>ncept OQ which r, ule 2011 proceeds is familiar to and underlies the statutory sclienie relaiing io"ieave formulat•d-in the Act. It !?ears a logicil and . reasonable relationship to the

•eptj~ contnt of that s.che~; (lg 11!41 i! !!JU§t bi: rg'lf~~ a.s a prnvi*on absorbed by rule 2 of the High ~Qµrt li!dj!;!i' J}l!I~ l~S~ .iq!q t!Je fii!tfpry structure defining the conditions of service of a Judge of the High Court.

[70S CH, 706AJ

C1y1'< APJ'~LL~T~ ua1sp1cno1:1 : $pci~I ~av, e Petitio!1 No. 416 of 1981.

. From the judgment and order dated te 5th Sptember; 1980 of the Punjab 81\d Harya'll& High Court in Civil Writ Petition No.

1515 of 1980. ·

~.l!J. iflq, Attorney Aer-', ~:.S (l1inm1apr, tJiy & JJ.N. Poddar

fqqb~ Peii.tjoqer. ·

The Order of the Court was delivered by

_PATHAK, J. This petition for special leave to appeal by the P11iop of ln4ia is directe<! gilint t!)e judgment nd or(jer of the

I; Iig~ Ccnm of Punjab an.<! Ifl1rY\l!ll\ )loJdiQg !b.e r&S, J?ocjeJll~ a retirE.4 J\!d!!!' of t, be Hih f::qqrt, entitled tq f.l\e p, a.yme11t of the fash , ec19ivlent ofleye salary )n respect J>f the pe, rio(j pf citrqed le\IVc at

bi~ Cfe,4it O~ tb.e (jt~ qf bjs retirement,

The respondent1 Sbr.i Gurnal)I inb, was a member of the Superior Judicial Service in the State of Haryana.

Qn February 24, )972 be was appointed a Judge of the High Court of Punjb, aiid

' •

- •. - • .,. • -· ' . ' ... 'i_ Haryapa 0 11ndh rdetiredf oq. M!frcb lb8, 1980 o~ attaihnind~ tbebge ofd6'2 G years. _n t e ate o ret1rem_ent t. e esponuent a to _ .ts ere .. ti earned leav~ lfhih h:i4 nt bee~ ayailed of by hjm. :He cJairqd

\a! be Wl\S entitl, eq o rece1v, e !he Ci!h equiy!flep$ 9f )eave 8\1)1\rY . in epept of th~ peripd pf lJDU!j/, ise, d ea.med leave. e ; i)so c!iP), d dearpess all<;>wapce f()r .the period before retir~, ment, :Che claim H

~im: d,~.ni~1 fhe r~p.oodent , i!ppJie!! ~9 th~ ijib fou.ri of Punjab aruj Harj!Qa Io' rFlif 11n\ler 4rlice 226 of e Coq1titutiou. T/le

7~ . SUPREME, cou)l.T REPORTS' [1982) 3 s.c.11. •

writ petition was allowed by the High Court by its Judgment and order dated September 5, 1980 and a direction was issued to the

Union of India to pay the amount claimed. During the course of the hearing the Union of India conceded the claim to dearness allowance in view of the order dated July 3, 1S80 of the Government that the Judges of the High Conrt were entitled to draw dearness allowance from December 1, 1979.

As to the remaining claim, the High Court held the respondent entitled to the cash equivalent of the leave salary for the period of unutilised earned leave by giving him the benefit of rule 20-B, AIL India Services (Leave) Rules, 1955 by virtue of rule 2 of the High Court Judges Rules, 1956. The order of the High Court is assailed before us.

In our opinion, the High Court is plainly right.

Article 221 of the Constitution provides for the payment of salaries .and allowances 10 a Judge of a High Court. 'clause (2) of Article 221 declares :

"(2) Every Judge shall be entitled to . such allowances and fo such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, nntil so determined, to such allowances and rights as are specified in the Second

Schedule :

The rights in respect of leave of absence to which a Judge is entitled may be determined by or under law made by Parliament. Parliament enacted the High Court Judges (Conditions of Service) Act, 1954, and sections 3 to 13 of that Act classify the kinds of leave admissible to a Judge, and provide for the maintenance of a leave account, the aggregate amount of leave which may be granted, the commutation of leave on half allowance into leave on full allowance, the grant of leave not due, special disability leave, extraordinary leave, the rate of leave allowances, allowance for joining time, for combining leave with vacation and the consequences of overstaying ]eave or vacation, It also. specifies the authority competent to grant leave.

The Union of India says that these several provisions constitute a Gomplete code and exhaustively set. forth all the benefits relating to leave to which a Judge of a High Court is entitled, and that it is not permissible to proceed beyond those provisions to discover any further right 'in favour of a Judge.

T.bat submission is inadmissible.

S11b-s. (1) of s. Z4 of the'same Act empowers of

- ,.(

Central Government to make rules to carry out the purpose of the Act. And clause (a) of Sub-s. (2) of s. 24 specifically contemplates rules providing for "leave of absence of a Judge". In other words, it is open to the Central Government to adcf to the existing _statutory provisions by making rules in relation to leave of absence. Sub-s.

(2) of s. 24 in fact enables the Central Government to make rules in respect of several other matters, such as the pension payable to a Judge, travelling allowances, use of official residence, facilities for medical treatment and other conditios of serv'ice and "any other matter which has to be, or may be prescribed". Now the Govern

mept of India enacted the High Court Judges Rules, 1956 and rule 2 comprehensively declares :

"2. The con?itions of services of a Judge of a High Court for which no express provision has been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been, determined by the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat ' of the High Court is situat~.

Provided that, in the case of a Judge of the High Court of Delhi and a Judge of the High Court of Punjab and Haryana the conditions of serviceshall be determined by the rules for the time being applicable to a member of the Indian Administrative Service on deputation to the Government of India holding the rank of Joint Secretary to the Government of India stationed at New Delhi.

Provided further that, in respect of facilities for medical treatment and accommodation in hospitals the provisions of.the All India Service (Yledical Attendance) Rules, 1954, in their application to a Judge, shall be deemed to have taken effect from the 26th January, 1950.

Provided also that where at the request of the President, any Judge undertakes to discharge any function outside his normal duties in any locality away from of his headquarters, the President may, having regard to th~ nature of such function and locality, determine the facilities toat may be afforded to such judge including accommodation, transport aJ)d telephonQ so long as IJe Qontiques to 4i'

SUPREME COURT REPORT~

( 1982] 3 S.~.R.,

charge such function, either without any payment or at a concessional rate."

Rqle ~A s forth the rights of a Jµdge who avail' of an ol!icial residence anil Rule 2B proyi<; ls . the ac.ale of its fre futnishing .

It i~ lear fr9, lJl ll11le fr oft.he J:ligh CR1,1ri Jude~ RJlle.s, !'?56, that the conditions •of rvice qf a !11dge Qf the High ~01!f! oT Pyp)ab

~11~ Hiiry11na, where qot c11preslY proyided l11 the High Coprt Judl!Ps ((; onditjoq5 of Service) A~, j !1?4 m11s, t bi; f!eter111ioe\I l)y the rllJes governing a member of the Indian . Ac!ipiqifrative $fvie Qf !lie

rak of Joint Secretary to the Government of India •stationed at New Delhi.

The Al.I lndill rfi<; es (JM.v~) Rules, 1955 copt9in pfpv1s1on for I.eave in relatiop to m.embcrs <If the AU Jnc!i:i Services, iqcluding the Indian 4dmipi, s1rJ1tiv!' ervi~. Po fhe ate when .the r cspondent retir.ed tho~ r\lles joclude, d 11Jle.WB :w)µch provioes :

"20-B •.. PaYI11ellt of cas~ equivalent pf 1~11yc sl!lary :-

(I) The Government \hall suo-moto sanction to a member of the service )Yho retires from the serYice uuder sub-rule (!) of rule I~ of the All Jndia $ervices (J;>eathcum-RetirementBenefiM Rules, 19.58, having attained the age of 58 years 011 Or 11fter tpe ~0th September, I ?77 the cash equivalent of leave salary in respect of the period of earned Jeaye at bis credit 0n the date of his retirement, subject toa maxim11m of 180 <lays.

. (2) The cash equivalent of leave salary payable to a member of the Service under .sub-rule (I) above shall also include dearness allowance admiss.ible to him on .the leave salary at the rates in force on the date _of retirement, and i_t shall be paid in one lump sum, as a one-.time settlement.

(3) The city compensatory allowance and the house rent allowance<Shall not be included in calculating the cash

eqtiivalnt of leave salary under this rule.

( 4) From the cash equivalent so worked out no deduction shall be made PD account of pension and pensionary equivalent of other retirement beneffl; s.

It is not disputed that Rule 20-B applies to a member. of .the Indian Administrative .Srvice of the rank of Joint Secretary to the Government of India stationed at New Delhi. The rule en.titles him on retirement from service to the cash. equivlent of leave Ji&larY in respect of the period of unutilised earned leave subject to a.maximum of 180 days, inclusive of dearness allowance. It is. apparent that by virtue of Rule 2 of the High Court Judges R11les, 1956. \his benefit must be read as a condition of service enjoyed by a .Judge of the High Court. It may be observed that although rule 20-B of the All India Services (Leave) Rules, 1955 is a provision of a scheme applicable to members of the All India Services, there is nothing in its nature and content which makes it inapplicable mutatis mutan(iis "'. ..<. ~· to the statutory . scheme pertaining to leave enacted in the H.igh . Court Judges (Conditions of Service) Act, 1954. There is also nothing in the constitutional position of a. Judge of a Iiigh Court which precludes Rule 20-B from inclusion in that scheme. It is true that Rule 20-B .revolves around the concept of earned leave, and the expression "earned leave" has been specifically defined by clause (d) of rule 2 of the All India Services (Leave) Rules, 1955 as "leave earned under rule 10".

But rule 10 merely lays down the rate arid amount of earned leave. The principle in which "earned

leave" is rooted must be discovered from rule 4, which provides that "except as otherwise provided in these rules leave shall be earned by duty only".

The performance of duty is the basis of earning leave.' That concept is also embedded in the High Court Judges (Conditions of Service) Act, 1954.

Under that Act, the time spent by a Judge on duty constitutes the primary ingredient in the concept of "actual service",(') which is the' reason for crediting

le11-ve in. the. leave account of a Judge.(') Although the expression "earned leave" is not employed in the Act, the fundament; il premise t for the grant of leave to a Judge is that he has earned it. He has -- \...._ earned it by virtue of the time spent by hi; n on actual service. That • '-a Judge earns the leave which is credited to his leave account is borne out by the proviso to s. 6 of the Act, which declares that the grant under s. 6 of leave not du~ will not be mad "if the Judge is not expected to return to. duty at the end of such leave and earn the leare granted" (emphasis provided).

The concpt then on which rule 20-B proceeds is familiar to and underlies the statutory scheme relating to leave formulated in the Act.

It bears Ji logical and reasonable relationship. to the essential content of that scheme. On

~~~ ·~~~~Q ~'. sub-s. (!) of s. 2.

l!l

SUPREME COURT REPORTS (1982] 3 s.c.a.

that, ii must be regarded as a provision absorbed by rule 2 of the High Court Judges Rules, 1956 into the statutory structure defining the conditions of service of a Judge of a High Court. We may observe that even as a right to recive pension, although . accruing on retirement, is a condition• of service, so also the right to the paiment of the cash equivalent. of leave salary for the period of unutilised leave accruing on the date of retirement must be consi dered as. a condition of service.

In our judgment, the High Court is !right in upholding the claim of the respondent to the payment of the cash equivalent of the leave salary in respect of tbe period of earned leave at his credit on the date of retirement in accordance with the provisions of rule 20, B of the All India Services (Leave) Rules, 1955 read with rule 2 of the High Court Judges Rules, 1956.

The Special Leave petition is dismissed.

P.B.R. ' Petition dtsmi$sed,

GU~NAM SINGH

Article 226

Section 24(2)(a)

Central GoV.mment

New Delhi

High Court Judges Rules 1956

GUIUIAM SINGH

s. 6

PATHAK

High Court of Punjb

Qn February 24, )972 be was appointed a Judge of the High Court of Punjb, aiid

' •
•. - • .,. • -· ' . ' ... '

Union of India

High Court Judges Rules, 1956

Article 221

Article 221

Parliament

Second

Schedule

sections 3 to 13

Union of India

s. 24

Central Government

s. 24

High Court of Delhi

High Court of Punjab and Haryana

Government of India

26th January, 1950

High Court Judges R11les, 1956

All India Services

s. 6

s. 6

s. 2

High Court Judges Rules, 1956

High Court Judges Rules, 1956


ASHOK KUMAR

DELHI ADMINSTRATION & ORS.

May 5, 1982

(A.P. SBN, E.S. VBNl:ATARAMIAH AND

R.B. MISRA, JJ .]

National Security Act 1980, S1. 3 lllld 8 and Con11itution of India 1950 Article 22(5).

Detention Ord1r-Period of detention-Specijkation of-Wheth<r mandatory.

, Ground• of detention-Furnishing of-Delay of two day1-Detention order-Whether rendered Invalid.

"Public Order''-" Law and order''-Distinction betwun.

Words & Phrasea-"As 1001} as may be"-" As soon as practicable"- Meaning of-National Socurity Act 1980; S. 8 ll1ld Constitution of India 1950, Article 22(5).

The petitioner who was held at the Central Jail in connettion with some of the offences committed by him, was served with an order of detention passed by the Gommissio'ner of Police, under sub-section (2) of section 3 of the National Secu'rity Act 1980~ stating that his detention was necessary with a view to preventing him from "acting in any manner prejudicial to the maintenance of public otder." Two days later he Was served with the grounds of detention and copies' of documents and statelnents relied upon in the grounds of detention.

The Commissioner made a report to the Administrator about the passing of the detention order together with thC groutlds of detention.

The Administrator approved the detention order and sent the report to the CentraJ Government, and also informed the petitioner that the order of detention had ben approved by him and that he had a right to make arepresentation. The case of the petitioner was placed before ttte Advisory Board who wa~ of the opinion that there was sufficient cause for his detention.

The Administrator confirmed the detention order under sub-section (I) of section 12 and further directed under section 13 of the Act thatlthe petitioner be detained for a period of 12 months from the date of his detention.

' In his petition under Article 32 or the Constitution the petitioner eontended that : (I) the unexplained delay of two days in furnishing the grounds or detention was a denial of the constitutional imperatives of !Art. 22(5) read with , section 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliett opportunity of making a representation against th• order of detention", (2) there was a failure on tll~ rt qf \be Col'1'1!iio~r I\'"'' s t~ •

SUPREME COURT REPORTS

(1982) S.C.R.

Administrator to apply their minds and specify the period of detention while making:tbe order of detention under SUbsection (2) of section 3 Of the Act, and

(3) th01"grounds of detention served were not connected with "maintenance of public order'', but relate to "maintenance of law. and order''.

Dismissing the petition,

HELD : !. (i) Sub-section (I) of oection 8 of tho Act which is in conformity with Article 22(5) provides that where a person is detained in pursuance, of a detention order made under sub-section (I) or sub-section (2) of section 3 of the Act, the authority making the Order Shall, "as soon as may be", but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later tha'.n ten days from the date of detention, communicate to him the grounds on which the order has been made.

Parliament bas thus by Jaw defined the words uas soon as may be" occuring in Art. 22(5) as meaning normally a period of five days. [711 F]

(ii) The law is that the detaining authority JllUSt, as soon as may be, i.e. as soon as practicable, communicate to the deteou the grounds on which the order of detention has been made. That period bas been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case. [712 D]

In the instant case, the petitioner was served with the grounds of detention within a perio~ of two days i.e. within the period allowed by section 8 of the Act and that was)'as 11soon as practicable.'' The order of detention is therefdre not rendered invalid merely because the grounds of detention were furnished two days latef. [712 E-F]

(iii) In A.K. Roy v. Union of India, [1982] I S.C.C. 271 this Court has not laid down that the detaining authority making an order of detention under ...; sub-section (!) or sub-se"etion (2l of section 3 of the Act or the authority approving of the same, must specify the period of detention in the order. (714 BJ

2. Under the scheme of the Act, the period of detention must necessarily -

vary accordiiig to the exigencies of each c.ase i.e. the nature of tbe prejudicial ~....,,~· activity complained of. It is not that the. period of detention must in all_.........- circumstances extend to the maximum period of 12 months as laid down in section'13 of the Act. [714 E] ~

3. (i) The true distinc.tion between the areas of 'public.order' and''JaW and order' lies not in the nature or quality of the act, but in the degree and extent ?fits reach upon society .. The distinction between the two oncePts of'law and order' and 'public order' is a fine one bu~ this does not mean that there can be no overlapi)iog. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and thcite'fore touch the problem of 'la~ and. order'. while in another it might affect 'puMic order'. The act. by itself therefore is not determinant of its own gravity. It is the potentiality of tho act to disturb the even

Asltok KUMAii. v. Dlitiil AbMINIStRATION (Sen, J.) 709

tempo of the life of the community which make it prejudicial to the 'maintenance , of public order.' [71S CBl

(ii) Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to. intercept before he does it and to prevent him from doing. Justification for such detention is suspicion.-0r reasonable prpbability and'not criminal conviction which can only be warranted by legal evi4ence. It follows that any preventive measures, ;.:.eveD.: if they involve some restrain, t or ha'rdship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State. [71S FG]

(iii) -The Executive can take recourse to its power of preventive detention in thosercases whe're the CoUrt is genuinely satisfied that no prosecution could, possibly'succeed against the detenu because he is a dangero.us person who has

oveirrawed .witnesses or d.gainst whom no one is prepared to depose. [716 BJ ·

(iv) What essentially is a P.roblem relating to 'law and order' may due to sudden sporadic and intermittent acts of physical violence on innocent victims in a metropolitan city result in serious 'public' disorder'. It is the length, magnitude ao.d ill tensity of the terror . wave l unleashed by . a particuiar act of violence: creating disorder tl¥tt distinguishes it as an act affecting 'public order' from that conCerning 'law and order'. Some offences primarily injure specific indiyiduals and.only secondarily the public interest, while others directly injure tho public interest, and affect individuals only remotely. [717 DB]

In the instaDt case the particular acts enumerat:d in the grounds of detentiOn clearly shows that the activities of the detenu cover a wide field and fall Within tho contours of the concept of 'public order'. [717 OJ

ORIGINAL JURISDICTION : Writ Petition ofl981.

(CriminaQ No. 8061

(Under article 32 of the Constitution of India.)

Dr. N.M. Ghatate for the PetitiQner.

0.P. Rana and R.N. Poddar for the Respondent.

The Judgment of the Court was delivered by

SEN, J.

By this petitiop under Art. 32 of the ConsJitution, one Ashok Kumar seeks issuance of a writ of habeas corpus challenging the validity of the order of detention dated August 11, 1981, 1 passed by the Commissioner of Police, Delhi under subs. (2) of g, ;!, of the National Security Act, 1980 (for short 'the Act') on be~''; satisfied that his detention was necessary with a view to preventinf him from "acting in any manner prejudicial to the maintenance rj

SUPRBMB totiat IUiPORfs [ t 9~2i 3 s.C:.k

public order". The main issue is as to whether the activities of the petitioner fall within the realm of 'public order' or .'law and order'.

Ii appears that on August 12, 1981 while the detenu was held at the Central Jail, Tihar in connection with some of the offences .comlljitted by him, he was served with tbe aforesaid .. rder of deten

tion passed a day earlier i.e. _on August II, 1981. Two days later i.e. on August 14, 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention. , It seems that the CommissiOner of Police forthwith made a report to the Ad.ministrator about the. passing of the detention order together with the grounds of detention and all other particulars bearing 'On the same. The said report and the other particulars were considered by the Administrator and he, by his order dated August 20, 1981, approved of the detention order under sub'.s. (4) and sent a report to the Central Government as required under sub-s, (5) of s. 3 of the Act. The Admi" nistrator by bis order dated Atrgust 20, 1981 informed the petitioner

bat his order of detention had been approved by him and that he had a right to make a representation.

The case of the p.etitioner was placed before the Advisory Board who was of tb, e opinion t)lat there was sufficient cause for the detention of the petitioner and accordingly the Administrator by his order dated September 15, 1981 confirmed the aforesaid detention order under sub-s. (I) of s. 12 and further directed under s. 13 of the Apt that the petitioner be detained for a period of 12 months from the date of his detention i.e. w.e.f. August 12, 1981.

In support of the petition, four points are canvassed.

First I . of these is that there was a denial of the constitutional imperatives of Art. 22(5) read with s. 8 of the Act which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention" inasmuch as there was unexplained delay of two days in furnishing the ground's. of detention; secondly, there was a failure on the part of the Com mission of Police as well as the Administrator to apply their mind and specify the peril)d of detention while making the order of detention under subs. (2) of s. 3 of the Act and therefore the impugned order of deteption is invalid; thirdly, the grounds of detenti6n served on the detenu are not connected with "maintenance of.public order", but they relate to "maintenance of law and order" and fourthly, the facts as t out in the grounds of detention did not

Asili'.>K kuMAil. µ, bilLHi ADMINistRATION (Sen, J.) 711 ··

furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further .they were vague, irrelevant and Jacking in particulars.

We are afraid, none of these contentions can prevail.

There is no substance in the contenti.on that there was denial of the constitutional imperatives of Art. 22(5) read with s. 8 of the Act, because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the ground's of detention along with the order of detention. It is said that delay even for a day, if it remains ..,. ,,,.: unexplained'. means deprivation of liberty guaranteed under Art. 21,. and this is impermissible except according to procedure established by law. The contention that the constitutional safeguards in Art .

. ...._ 22(5) were not complied with merely because the detenu was not 'simultaneously' furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded 'the earliest opportunity of making a representation against the order of detention' as enjoined by Art. 22(5) read with with s. 8 of the Act, cannot be accepted.

T.l!.e language of Art 22(5).itself provides that where a person is detained in.pursuance of an order made under any law providing for preventive detention, the authority making the order shall, "as soon as may be", com- municate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the oder. Sub-s. (I) of s. 8 of the Act which is in cdnformity with Art. 22(5) provides that when a person is • detained in pursuance of a detention ordet made under sub-s. (I) or sub-s'. (2) of s. 3 of the Act, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in , exceptional circumstances and for reasons to be recorded in writing,

~ •• t later than ten days from .the date of detention, communicate to • him the grounds on which the order .bas l!een made. Parliament

~ bas thus by law defined the words "as soon as may be" occurring in Art. 22(5) as meaning normally a period of five days.

The matter is no longer res integra. Cbandrachud, C.J. in A.K. Roy 1v. Union of India(') observed :

"This argument overlooks that the primary require- •

men! of s. 8(1) is that the authority making the order of

H .

(1) [1982) 1 s.c.c. 271.

I sVPREMI! COVl!.t Rlll>oiti's (198~1 3 s.c.i.

detention shall communicate the grounds of detention to the detenu "as soon as may be". The normal rule therefore is that-the grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigencies of adminislrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by s. 8(1) to . record its reason in writing. We do not think that this provision is open to any objection."

Under our constitutional system, therefore, it is not the law that no person shall

1 be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention. The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the gfOUDdS OD Which the order of detention has been made. That period has been specified by s. 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circu111stances of each case. Admittedly, the detenu here was served with the grounds of detention within a period of two days i.e. within the period allowed by s. 8 of the Act and that was "as soon as practic!lble".

This is not a case where the etenu alleges that his detention was for non-existent grounds. Nor does he attribute any mala ftdes on the part of the]detaining authority in making the order. The - order of detention is therefore not ., rendered invalid merely because ,.. > the grounds of detention were furi4shed two days later. ~_,. . '

I I We find it difficult to conceive of any discernible principle for the second submission. It is submitted by learned counsel appearing for the detenu that the right to make a representation under Art. 22(5) 0f the Constitution read with s. 8 of the Act means what it implies, "the right to make an effeQtive representation".· It is urged tbft unless !\le period of detention is specified; there can be no ifneaningful representation inasmuch as the detenu had not only the right of making a representation against the order for bis detention but also the period of detention. On this hypothesis, the contention is that the impugned order of detention is rendered invalid. ' The

ASilot tcUMAR v. bllLHiAbMiNISTRATION {Sen, J.\

'I~

entire submission rests on the following observations of Chandrachud, C.J. in A.K. Roys case, supra :

"We should have.thought that it would have been wrong to fix a minimum period of detention, regardless of the nature and ser.iousness of the grounds of detention.

The fact that a person can be detained for the maximum period of 12 months do.es not 'place upon the detaining authority the obligation to direct that he shall be detained for the maximum period. The detaining authority can always exercise its discretion regarding the length of the period of detention."

The majority decision in A.K. Roys case, supra, as pronounced by Cbandrachud, C.J. is not an authqrity for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub-s. (I) or (2) to specify the period of detention. The learned Chief Justice made the aforesaid observations while.repelling the contention advanced by. learned counsel

fortbe petitioner thats. 13 of the Act was violative of the fundamental right guaranteed under Art. 21 read with Art. 14 as it results in arbitrariness in . governmental action in the matter of life ai; id liberty of a citizen. The challenge to the validity of s. 13 of the Act was that it provides for a uniform period of. detention of 12 ' months in all cases, regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed. In repelling the contention, the learned Chief Justice obsel,'Ved that there was no substance in jthat grievance because, any law of pre-· ventivt detention has to provide for the maximum period of detention, just as any punitive law like the Penal Code has to provide for the maximum sente'!ce which can be imposed for any offence.

In upholding the validity of s. 13 the learned Chief Justice observed :

"We should have thought that it would have been wrong to fix a minimum. period of detention, r&gardfoss of the grounds of detention';.

And then went on to say :

"It must also be mentioned that under the proviso to

s. 13, the appropriate government bas the power to revoke H or modify the order of c:)etention at any earlier point of time." ,

114 StiPR~ME coukt il.Bl>Ok'tS [198i 3 s.c.r..

It would thus be clear that the Court was there concerned with the validity of s. 13 of the Act and it is not proper to build up an argument or by reading out of context just a sentence or two.

There is no doubt in our mind that the Court has not laid down that the detaining authority making an order of detention under sub-s. (!) or sub, s. (2) of s. 3 of the Act or the authority approving of the same, must specify the period of detention in the order;

It i.s plain from a t'eading of s. 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority bad the duty to specify the period of detention. It will be • noticed that sub-s. (!) ofs .. 3 stops with the words "make an order directing that such person be detained", and does not go further and prescribe that the detainiQg authority shall also specify the period of detention. Otherwise, there should have been the following wbrds added at the end of this ."sub-section "and shall specify the

: . ' - period of such detention". What is true of sub-s. (!) of s. 3 is aho true of sub-s. (2) thereof. It is not permissible for the courts, by a process of judicial construction, to alter . or vary. the term~ of a section. Under the scheme of the Act, the period of deten.tion must necessarily v.ary according to the exigencies of each case i.e. the nature of the prejudicial activity complained of. It is not that the period of detention must in , all circ.umstances extend to the maximum period of 12 months as laid down in s. 13 of the Act.

The most crucial question on which the decision must turn is whether the activities of the .detenu fall within the d onlain of 'public order' or 'law and order'. The contention is that the grounds of detention, served on the de tenu are not connected with 'maintmance of 'public order' but they relate to 'maintenance of Jaw and order' and therefore the impugned order of de ten ti on purported to have been' passed by the detaining authority in exercise of his powers under sub-s. (2) of s; 3 of the Act is liable to be struck down. It is urged that the facts alleged in the grounds of detention tend to. show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if, in every. case where there is a failure of the prosecution to proceed with. a trial or wbere the case ends with an order of discharge or acquittal, the Executive could fall back on its power of detention because the verdict of the Court goes against it. Put differently, the contention is that resort cannot be had to the Act to direct preventive detention of a person under sub-s. (2) of s. 3 of the Act for the Act is not a law for the

Asiloie ltUi.iAR v. bilLJti ADMINiStRATION (Seu, J.) 115

preventive detention of gangsters and notorious bad characters. The detention here, it is said, is not so much for the "maintenance of public order" but as a measure for the past criminal activities of the detenu. It is further urged that the grounds of detention have no rational connection with the object mentioned in the Act for

whia person i; nay be detained. Further, that there is no sufficient nexus between the preventive action and the past activities of the . detenu which are not proximate in point of time but are too reote.

There is no substance in any of these contentions aclvanced.

The true distinction between the areas of 'public order' and 'Jaw and order' lies not in the nature or quality of the Act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine. one but this does not mean that there can be no overlapping.

Acts slmilar in nature hilt committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals _cmly and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the 'potentiality of the act to. disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. That test is clearly fulfilled in the facts and circum

stances of the present case.

Those who are responsible for the national security or for the maintenance of public order. must be the sole judges of what the national security or public order requires. Preventive detention is devised to afford protection to society. The object is not to punish ............... a man for having done something but to intercept before he does it ,..... and to prevent him from doing. J.ustification for such detention i is suspicion or reasonable probability and not .criminal conviction which can only be warranted by legal evidence. It follows that any preventive measures, even if they involve some restraint or har<!ship upon ipdividuals, do not partake in an¥ way of the nature of punish meat, but are taken by way of precaution to prevent mischief to the State. It is a matter pf grave concern that in urbanised areas like cities and towns and particularly iµ the metropolitan city of Delhi the law and order situation is wotseaing everyday and the use of knives/ and firearms haS given rise to a new violence. There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public

SUPREME cotm.t RE.POkts !19&2) 3 s.C.ft..

order. It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed, but which the law enforcement agency is not.able to substantiate. There is no reason why the Executive cannot take recourse to its power of preventive dete.ntion in t1w, se cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no obe is prepared to depose. ·

The prejudicial activities of the detcnu leading to public disorder, as revealed in the grounds of detention, consist of a consistent course of criminal record. 'Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order, they have now taken a turn for the worse. From the facts alleged it appears that the detenu has taken to a life of crime and become a notorious character. His main activities are , theft, robbery and snatching of ornaments by the use of knives and firearms. The area of operation is limited to South Delhi, such as Greater Kailash, Kalkaji and Lajpat Nagar.. A perusal of the F.I.Rs. shows that the petitioner is a person of desperate and dangerous character. This is not a case of a single activity directed against a single individuals.

There have been a series of criminal activities on the parCof the. detenu and his associates during a span of four years which have made him a menace to the society. It is true that they are facing trial or the matters are still nnder investigation.

That only shows that they are such dangerous characters that peopie are afraid of giving evidence against them.

To bring out the gravity of the crimes committed by t!\e deteou, we would just mention four instances. On November 19, 1979 Smt. Anupam Chander of B-5/10, Safdarjang Enclave reported that she was robbed of her gold-chain near East· of Kailasb and on investigation the petitioner along with bis associates was arrested for this high-handed robbery am! . there is a case registered against them which is pending trial.

Just a month after i.e. on December 11, 1979, one Munna of Lajpat Nagar reported that he was robbed of his wrist-watch and cash by three persons who were travelling 'in a three-wheeler. On investigation, the petitioner and his associate Rajendra Kumar were arrested and the police recovered the stolen property. They are facing trial in these cases. On July 18, 1981,

ASHOK KUMAR v. DELHI ADMINISTRATION (Sen: J.) 717

Kumari G. Radha reported that she bad been robbed of her gold cbain and a pair of tops in Lajpat Nagar at the point of knife by persons in the age group -Of 2(/22 years. On investigation, the petitioner and his associate Rajendra Kumar were arrested and the entire booty was recovered. The case is still under investigation.

It appears that the detenu was enlarged on bail and two days after i.e. on July :W, 1981, he ws again arrested on the. report of Smt.

Ozha that slie was robbed of her gold-chain near Shanti Bazar, Khokha Market, Lajpat Nagar by two persons ill the age group of 21-25 years at the point of knife. On investigation, the petitioner and his companign Rajendra Kumar were arrested and she identified them to be the culprits and the booty was recovered from thein.

The case is under investigation. There have been similar incident¥ of a like nature.

What essentially is a problem relating to law and order may due to sudden sporadic and inlermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder. It is the length, magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguihes it as an act affecting public order from that concerning law and order. Some offences primarily 'injure specific individuals and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely. The question is of (the survival of the society and the problem is the method of control. Whenever there is an armed hold-up by gangsters in an exclusive residential area like Greater Kailash, Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car, wrist-watch or cash, or ladies relieved of their gold-chain.s or ornaments at the point of a knife or revolver, they become victims of organised crime. There is very little that the police can do about it except to keep a constant vigil over the movements of such persons. The particular acts enumerated in the grounds of detention clearly show that the acti v1ties of the detenu cover a wide field and fall within the contours of the concept of public order.

The contention that the facts alleged in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further that they were vague, irrelevant or lacking in particulars, cannot be accepted. A

bare perusal .of the grounds of detention along, with the particulars

• B

718 SURRBMB cOURT REPORTS (1882] 3 s.c.R. ' of the 36 cases furnished in the accompanying chart, shows that the grounds furnished were not vague or irrelevant or Jacking in parti culars or were not adequate or sufficient for the subjective satisfactipn of the detaining authority.

In the result, the petition must fail and is dismissed .

N.V.K ..

Petition dlsmisied.

' -

KUMAR

DELHI ADMINSTRATION & ORS

R.B. MISRA, JJ

National Security Act 1980

Article 22(5)

Meaning of-National Socurity Act 1980

S. 8

Constitution of India

Article 22(5)

section 3

CentraJ Government

section 12

section 13

Article 32

Art. 22(5)

section 8

section 3

Article 22(5)

section 3

Art. 22(5)

section 8

section 8

section 3

article 32

Constitution of India

N.M. Ghatate

0.P. Rana

R.N. Poddar

SEN

Art. 32

Ashok Kumar

National Security Act, 1980

August II, 1981

August 14, 1981

August 20, 1981

Central Government

s. 3

Atrgust 20, 1981

September 15, 1981

s. 12

s. 13

August 12, 1981

Art. 22(5)

s. 8

s. 3

Art. 22(5)

s. 8

Art. 21

Art. 22(5)

s. 8

Art 22(5)

s. 8

Art. 22(5)

s. 3

Art. 22(5)

Cbandrachud

s. 8(1)

s. 8(1)

s. 8

s. 8

Art. 22(5)

s. 8

Chandrachud

A.K. Roys

Art. 21

Art. 14

s. 13

Penal Code

s. 13

s. 13

s. 13

s. 3

s. 3

s. 3

s. 13

s. 3

Delhi

Kailash

Kalkaji

November 19, 1979

Anupam Chander

Kailasb

December 11, 1979

Munna

Rajendra Kumar

July 18, 1981

Kumari G. Radha

July :W, 1981

Ozha

N.V.K


• - •

T.N. SAXENA & OTHERS

STA'TE OF U.P. & OTHERS

May1, 1982

[S. MURTAZA FAZAL ALI AND A, VARADARAJAN, JJ.J

U.P. Government Servict-Sentorit)!·-Recruilment from.two Jources-Prtr mottf$ appointed first and direct recruits much later-Seniority of prOmotees based on length of service not affected by later induction of direct recruits.

According to the relevant orders of the State Government, seniorily in service was generally to be determined. from the date of substantive appoint.

ment }n a substantive vacancy but. where appointments to a service were made D both by promotion and direct recruitment, a combined waiting list was to be prepared by taking candidates alternately from the . lists of prorrioted candidates and direct reccuits aod appointments made in accordance with that combined list.

The posts of Senior Marketing Inspector under the Food & Supplies Department of U.P. were l:'eing filled up entirely by way of promotion from the category of Marketing Inspector. But, with effect fratµ April 15, 1964, the State.

Government decided to fill up these posts by way of promotion as well as direct • recruitment in the ratio of 50:50. ·

Respondents 2 to S w; o had entered service as Marketing Inspectors were I promoted as Senior Marketing Inspectors in September, 1964,, in the quota of promotees. The appellants, who were direct recruits to the post of Senior Mar~ keting Inspector were appointed much later but were placed above respdndents ,2 to Sin the sniority list of Senior Marketing Inspectors issued in 1977 which resulted in the reversion df respondents 2 to 5 from the posts of Deputy Market~ ing Region~! Officers to which.they had been further promoted in 1974. .

Allowing the petition of respondents 2 to 5, the High Court quashed tho G seniority list holding that appointments already made by departmental promotion . to fUbstantive posts would not be affected by the direct recruits coming subscqu.ently through tho .Public Service Commission ..

In appeal, the appellants contended that the direct recruits had to be ad. justed alternately with the proniotees even though the promotees had been

appointe~ in their owp quota Ion~ before the direct l'Cl'ruits join"!. service, H

SUPREME COURT REPORTS . [1982) 3 s.c.R.

A Dismissing the appeal,

HELD l. The promoteeSiwere CntitJed tO maintain their seniority as from the date of their promotion and it was 'not open to the Government to prepare a seniority Jist by pushing the promotees far below the position of seniority which they would legally occupy merely to accommodate the direQt recruits.

The rule of alternate seniority does not mean that the genuine seniority based on length of service should be completely overlooked. [726 G] ·

2. The normal rule is that seniority should be measured by the length of continuous officiating service unless a contrary intention appears from the rules.· In this Case, according to the orders issued by the Government, the length of service was the prime criterion for determining seniority. [726 A-B]

~- Promotees regularly appointed durig a particular period within the quota of promotees can claim their .whole lepgfh of service for the purpose' of seniority as against direct recruits who may turn up in succeeding periods. [726 C]

Bishan Sarup Gupta v. Union of India & Ors., [1975] 1 S.C.R. 104 held inapplicable; N.K. Chauhan & Ors. v. State of Gujarat & Ors. [19(7] I S.C.R.

D 1037 and B.S. Yadav & Or~. v. State. of Haryana & Ors., [1980] 1S.C.R.1024 referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3148 of 1979.

Appeal by special leave from the judgment and order dated the 18th May, 1979 of the Allahabad High Court in Writ Petition

No. 1372 of 1977. ""

Dr. Y.S. Chita/e and A.K. Srivastaw1 for the Appellant.

R.K. Garg, G.N. '])ikshit, V.J. Francis, D.K. Garg, S. Dikshit and Ashok Grover for the Respondents. _,

The Judgment of the Court was delivered by

FAZAL ALI, J. This appeal by special leave is directed against a judgment dated 18.S.79 of the Allahabad High Court quashing the impugned seniority list dated 4.4.77 issued by the Government of

U.P. (hereinafter referred to as the 'Government') which resulted in the reversion of respondents 2 to 5 to lower posts.

The facts of the case lie within a narrow com'pass and, in our opinion, seem to be concluded by several decisions of this Court, ,

--- .. --

I T.N. SAXENA v. U.P.. STATll (Fazal Ali, i.) 721 ' Respondents 2 to 5 had passed the High. Scltool Examination llnd entered the service of the Government all Marketing Inspecton

nnder the establishment of Food & Supf1Jies Department on various dates and were later confirmed on these posts. In fitct, lo begin

with, the Department itself was temporary but was later on made permanent. It may be stated here that the post of Marketing Inspector 'Was exempted from the scope of the Public Service Commission. The . next higher post in the hierarchy of the Depart~ men! was that of Senior Marketing Inspector and previot11 to the . year 1964 these posts were filled entirely by promotion 'from Marketing Inspectors. As respondents 2 to 5 were already confirmed in their original post of Marketing Ifispector, they were pr.omoted to the rank of Senior Marketing Inspectors with effect from September 1964 and since then had been holding the post until their.further promotion as Deputy Marketing Regional Officers in June 1974.

It appears that right from. 7.12.44 upto Sept. 1964 the criteria for determining the seniority of the afore$aid 'employees was total length of service including identical and high'er s'cafo, of pay. It is !, lOt disputed that respondents 2 to 5 fulfilled botli the criteri~

mentioned above.

Sometime in 1964, however, the Government took a policy decision that so far as the cadre bf Senior Mitketing

Inspectors was concerned, the posts would Ile fille'd by tlvo sources, viz., (I) promotion ancl'{2) direct recruitinei\i in !lib ratio of 50:50.

As a result. of this &Cisiol\ a very large number of posts were sancti()ned to accommodate the direct recruits who . were , to be appointed through a competitive examination hefd by the Public

Service Commission. The Government also ordered that hence- . forward the posts of Senior Marketing Inspectors shoufd be brought within the purview of .the Public Service Commfssion. We have -"--- mentioned this fact expressly because oneof points that was raised • ' before the High Curt by the appellants was that. respondents 2 to 5 had not been cleared by the Public Service Commission nor were their cases referred to it.

Nothing much turns upon this point because it was not argued before us in the appeal.

Moreqver, as respondents 2 to 5 were confirmed hands question of taking the formal sanction of the Public Service Commission would be i; nore or less inconsequential and could be given subsequently with retrospective effect. We might further state another ,.undi.sputed fac!-the posts' of the Senior Marketing Inspector at. the bme f the ew policy taken by the Government wer~ il!9re11:se4 !\nd respondents 4 tQ

SUPREME COURT REPORTS

(1982) 3 S.C.R; • 5 who had been promoted purely in the quota when the Government decided to recruit the other 50% by direct recruitme11t. This fact is rather important because it distinguishes the present case from some of the decisions of this Court on whiCh heavy reliance bad been placed by the counsel for the appellants.

-~ '

.The principles concerning the recruitment of the promotees and tbe direct recruits were contained in a letter of the Government (Annexure C to the petition) relevant portion of which may be ' extracted thus :

"I am directed to address ou on the above subject and to say that the post of Senior Marketing Inspector has been placed within the purview of Lok Seva Ayog with effect from 15 April 1964. The recruitment to this post will now therefore he made on the principles indicated below:

(i) 50% of the posts will be filled by promotion from amongst the Marketing Inspectors and the remaining 50% by direct recruitment . through Lok Seva Ayog.

(ii) Educational qualifications for direct recruitment through Ayog will be graduate of a recognised University with preference to graduate in Agriculture.

(iii) Age limit is 21 to 25 years. Age limit for departmental candidate for promotion• will be 40 years. dfficials wbo start officiating as Senior Marketing Inspector before the age of 40 years will, however, be considered for promotion.

(iv) All permanent Marketing Inspectors who have put in 5 years service, permanent an<;! temporary both, will be eligible for promotion. No educational qualification has been prescribed for promotion except that no one who has not got the minimum qualification shall be eligible for promotioJl." _

A perusal of this letter would clearly show that the quota of

. "" the promoted Senio; Marketing Inspectors was not at all touched or altered and even the age-limit for the candidates who had been

. I

~: •

. --( .

T.N. SAXENA v. b.!>. STATll (Fazai Ali, J.)

promoted was extended upto 40 years and it is not disputed that respondents 2 to 5 were within that age-limit.

Regarding the question of seniority, which is the fundamental point in issue in the appeal, the Rules provide thus :

• "(xi) Seniority

Seniority: in service shall generally be determined from the. date of substantive appointment to a service or from the date of the order.of appointment in a substantive vacancy. In special cases seniority may be determined in accordance with the conditions which may suit a particular service. If two or more candidates are appointed on the same date, their seniority will be determined according to ' the order in which their names are mentioned in the appointment order.

Where appointments to a service are made both by direct recuritment and promotion, a combined waiting list_ would be prepared of the candidates recruited by both the sources and appointments made in accordance with that combined list. The combined list is to be prepared by taking candidates alternatley from the lists of promoted

candidate~ an<l direct recruits." ~

The High Court has rightly construed. the aforesaid Rule of seniority to connote that appointments already made by departmlltltal promotion to substantive posts would not be-affected by the

dirct recruits coming subsequently through the Public Service Commission.

Reliance was, however, placed by the appellants on the 2nd paragraph of the Rule which stated that the combined list was to be prepared by taking candidates alternately from the list of promoted candidates and direct recruits. This clause bas to be interpreted rationally so as to advance the real object of the Government which was merely to enlarge the the area of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before even the policy of taking direct recruits through Public Service Commission was ilorn. Unfortunately however after the direct recruits were taken as Senior Marketing Inspectors, sometil!le after . 1970 they were put above respondents

724 stJl>llEMll cotJk't REP6kts (198~) j s.C.k

2 to 5 who, by the time the direct recruits were appointed, had already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The High Court relied on a Government order setting out guidelines relating to seniority which has already been extracted above.

Perhaps Jhe Government was under the impression that as the quota of 50% was reserved for direct recruits and they had come through competitive examination with higher qualifications, they would have. to take precedence over the promotees even though the promotee bad occupied the post in their own quota long before the direct recruits appeared oi; i. the scence. Under this erroneous impression the Government issued the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the High Court.

D The first point raised by the counsel for the appellants was

that in view of the fact that the direct recruits possessed a higher qualification and were recruited through the Public Service Commission, they bad to be given priority in respect of seniority over the promotees.

It was further argued that as a result of the Government Orders, the direct recruits bad . to be adjusted alternately with . the promotees even thqugh the promotees had been appointed in their own quota long before the direct recruits joined the service.

We are, however, unable to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of, recruitment and the Rules expressly provide that one source would have precedence over the othe).', then the position as con.tended by the counsel for the appellants would have to be accepted. In the instant case, we are unable to find any such inhi.bition or prohibition in the order passed by the Gov.ernment. In fact in N.K. Chauhan and Ors. v. State of Gujarat anti.Ors. (1) to w.bich one of us (Fazal Ali, J.) was a party, it was clearly laid down that so long as the promotees do. not exceed their quota.they were entitled to maintain their seniority as from the date 0f, their promotion, where this Court made the following observations:-

(!) ,[1977] I S.C.R. 1037.

/ ~/ ..

't.N. SHAii v. U.P. STATB (Pazal Ali, J.i

"'(_he; qlJp~ ru)~ !Ws not, inevJtablx, iµyoke the

l\PP.li~1Vi11n. qf; .Qle rota,. ru.le. Tl)e impct of this position is thJt if sufficiontn11mber of direct recruits have not been 'rorthon:iing.in the years since 1960 tq fill in

the, ratio. due to them and those deficient vacancies h!lye, b~~I) fi!led u, P, by proll)9tees, 11\ter dir~trecruits

ca, qno~ c!ailll 'deerni; d' dJl; t~~ oJ 11ppointme11t for senio

rity in serviee with ~!feet from the time, acc, Qrding to -

1 the rota or tum, the direct recruits vacancy arose.

SepioritY, wjll 4~Pe, t!_4 on te lngtJi of co, ntin119us qljicialti; ig, sc:_cy, ic\l a,\l,\l: cJ!, lµIQt b~ Qlilet by:l, aer, arrivals

frQJ1lAl~ QRefl.ipAret:s!lo, v, e t9_ th~ exteQt t9, Wi\ch any

f, es, s, J:lrolii, ote~$,~ ljj\, v.e; to Iii;. pusl)ed dqwn as indicated earlier. ·

+ + • ;+

'Seniority, normally, is.. mured by length of conti- 0 nuous, officiating service:_the actual is easily accepted as the legal, This doe's not preclude a different prescription, constitutionally tests being satisfied,

+ + + +

Prom9J~, re&ula!l1'1 appointed .dµriog, period A in

ex~~- Q); thi;..i.li.qll.9!1'. for.- waJ1t1of dire<:t recruits (rea BllOllbly,. sqll&IJbi" not,. sei; ure.d lll!d:because tarrying lql}l!Fr w.pµtd h, ljurMhe..administration) cap c!aim their whole length 0£, sje for, seniorit~" even,.against direct recruits who may tum up i)J succeeding periods .

Pr11motees w)10 hl)ve been_ fitted into va, c!lDCies beyoµd_ thejr quotadurin11 the perjod B-the year beiqg 1

regr, ded a~ the U)lit-must sufi'.r surviva) a,~ invaJ.id

apppinee~ acquiring new life when_ vacan_cies in. thi.r quota fall to be filled up. To that extenttbey willslep down, rather be pushed down as against direct recruits

W, h.<;\ we~. 11!.lr b11t regl\ll\dY appointe.d wi\bi11; their quQt.11.:' ·

This case clearly laid down three important p.rincip)e•.

' g

?26

{lii~J 3 S.C.ll..

(1) Normal rule is that seniority should be measured by

the length of continuous officiating service unless a contrary intention appears from the rules.

We have already shown from the' Rules framed 6y the Government that the length of service was deter mined as the prime criteria for determining the senio- . rity.

(2) Promotees regularly appointed during a particular period in excess of their quota for want of di.rec! recruits can claim their whole length of service for senio rity even against direct recruits who may turn up in succeeding periods.

(3) Promotees who had exceeded their quota would have to be pushed down to accommodate direct recruits D coming after their appointment.

F ..

The case of respondents 2 to 5 clearly falls within the first two principles.

The admitted position is that respondents 2 to 5 bad not exceeded their quota of 50% when they were promoted as Senior Marketing Inspectors. In fact, they were promoted as Senior Marketing Inspectors Jong before tbe Government evolved the policy offilling up the posts of Senior Marketing Inspectors by direct recruits, It is also clear that none orthe respondents had encroacl; i ed on the 50% quota which was reserved for direct recruits under tbe new Rules framed by the Government.

In these circumstances, tlierefore, it was not open to the Government to prepare a seniority list by pushing the promotees far below 1he position of seniority which they would legally occupy merely to accommodate the direct recruits.

The rule of alternate seniority does not mean that the genuine seniority based on length of . service .by a previous employee should be completely overlooked or obliterated. . '

Reliance was, however, placed on an earlier .decision Of this Court in Bishan Sarup Gupta etc. v. Union of India and Os.(')

(I) (1975] I SCR 104.

T. N; SAXE~A v. U.P. STATB (Faza/ Ali, J.) 727

In this case also it was clearly held that the promotees could be pushed down only if they had exceeded the quota allotted to 'them.

In \he instant case not only the respondents 2-5 did not exceed their quota liut had secured , much higher pr.omotions by the time the direct recruits cameto be recruited and had to be reverted . to lower posts in order to accommodate. the direct recruits. Such a gross injustice, in our opinion, cann6t l\e countenanced by the rules or orders made by the Govern111ent11or can such a course of

aqion be spelt out from Bishan Sarup Gupta's case (supra) .

In B.S. Yadav and Ors. v. State of Haryana, and Ors.(1) the earlier decision of this CourfTllChquhan's dase (supra) was reiterated 11nd Chandrachud, CJ speaking for the Court orbserved thus :

"Is it proper and fair to.defer the confirmation of the projilotees merely because direct recruits are not available at that point of time so as to able the High Court to make confirmations from both the sources by rotation ?

This, precisely, is what the High Court has done by the impugned notification dated 25-8-'1976 and that is the. . reason why it has not confirmed ten more promotees in

Punjab, for whom vacancies are available within the quota of promotees. '

What is relevant is the decision of the Court that the quota rule will lie enforced at the time of initial recruitment. and not a:t the time of confirmation? ... .-. Seniority of promotees, according to this decision, .could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down.''

It is, therefore, clear frqm an ana]ysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had com'pletely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court.

The

,.\- (I) [1980) l S.C.R. 1024.

;. '

728 SUPREME 'c6Ultr REPORTS '11982) 3 s.c.R_.

High Court, in our opinion, was fully justified in qushing the '"°' seniority list. •

Lastly, it was contended that the High Court while s!kikiilg down the seniority list has not struck down tlie GoV'etnmeilt 'Orcltr which bad nxed the rota and Wk 'quota rule. As indicate~ above, if the rota and the quota rules are properly interpreted, as h'eld by this Court in the cases cited above,. the Governmeht order canilOt 'be said to be bad or legally invalid. The defect Jay in the Govern' ment itself misconstruing its own order while issuing the seniority list, wbicb error was rightly 'corrected by the High Court. .

The Government shall now issue a fresh seniority liit lo 'the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any revenioo of promote!s Who had been promoted within their quota as senior Marketing InsJ*ctors or abtlve.

D For the reasons given above, all the contentions raised &y the appellants are overruled and the a\)peal fails and is dismissed but in the circumstances without any order as to costs.

H.L.C.

Appeal dismissed.

' -

T.N. SAXENA & OTHERS

STA'TE OF U.P. & OTHERS

S. MURTAZA FAZAL ALI

VARADARAJAN, JJ

April 15, 1964

[1975] 1 S.C.R. 104

Y.S. Chita

A.K. Srivastaw1

R.K. Garg

G.N. ']

V.J. Francis

D.K. Garg

S. Dikshit

Ashok Grover

FAZAL ALI

Public

Service Commission

Fazal Ali

Pazal Ali

Bishan Sarup Gupta

Chandrachud

25-8-'1976 and

Punjab