Judgment

KRISHNA IYER, J.: - A senior civil servant of the Indian Administrative Service, brought in by promotion and borne on the cadre of the Assam State (now of the joint cadre of Assam and Meghalaya), seeks, in this petition under Article 32, redress of alleged infraction of his fundamental right to equality under Article 16 ,vis-a-vis certain direct recruits. We will proceed to scan the case to see if, on the merits, this public servant has suffered a big illegal blow by diminishing his length of service, that being the core of the controversy. For this reason, we are not disposed to rebuff the petitioner in limine on the preliminary objection urged by the-learned Solicitor General. To bar the processual doors of justice 1ike harsh judicial Janitors if one has a right to relief - is the reluctant refuge of a Court - and that at the instance of the State, at the final stage.

2. Stripped of details and in simple terms the gravamen of the petitioner s grievance is that while he is eligible to be placed above serial number 34 in the I. A. S. Gradation List (Annexure F), he has been illegally pitch-forked into serial number 65. His real length of service has been lopped off by denial of a considerable period spent in posts equivalent in status and responsibility to IAS cadre posts and in violation of Rule 3 (3) of the I. A. S. (Regulation of Seniority Rules, 1954.We will amplify this case and examine the alleged infraction of his right.

3. The story of Indian Administrative Service, its genesis, the sources of recruitment and kindred matters have been delineated in some detail in a case where Rule 3(3) (b) aforesaid fell for consideration. That is R. P. Khanna v. S. A. F. Abbas, (1972) 3 SCR 548 . We need not go over the ground once again since the necessary rules and regulations have been fully set out in that judgment so that we will confine ourselves to the specific provision that needs a close look.

4. The l954 Cadre Rules defined cadre post to mean any of the posts specified in item 1 of the Schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations. Another term which crops up in the various rules is senior post which means, according to the Regulation of Seniority Rules, 1954 , a post included and specified under item 1 of the Cadre of each State in the Schedule to the Fixation of Cadre Strength Regulations, 1955. The question of seniority as between promotees and direct recruits is covered by Rule 3 (3) (b) of the Indian Administrative Service (Regulation of Seniority ) Rules, 1954. The crucial rule that is decisive may be extracted to facilitate further discussion:

"Rule 3 (3) - The year of allotment of an Officer appointed to the service after the commencement of these rules shall be:

x x x x

(b) Where the officer is appointed to the service by promotion in accordance with sub-rule (1) of Rule 8 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the service in accordance with Rule 7 of these rules, who officiated continuously in a Senior posts from a date earlier than the date of commencement of such officiation by the former.

Provided that the year of allotment of an officer appointed to the service in accordance with sub-rule (1) of Rule 8 of the recruitment rules who started officiating continuously in a senior post from a date earlier than the date on which any of the Officers recruited to the service in accordance with Rule 7 of these rules, so started officiating ,shall be determined ad hoc by the Central Government in consultation with the State Government in consultation with the State Government concerned.

Provided further that an officer appointed to the service after the commencement of these rules in accordance with sub-rule (1) of Rule 8 of the recruitment rules shall be deemed to have been officiating continuously in senior post prior to the date of inclusion of his name in the Select List prepared in accordance with the requirements