K. B. Shukla vs Union Of India - 1979 Supreme(SC) 90

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1979 Supreme(SC) 90

SUPREME COURT OF INDIA
R.S. SARKARIA AND V.D. TULZAPURKAR, JJ.
K. B. Shukla and others, Appellants
Versus
Union of India and others, Respondents.
Civil Appeal No. 1089 of 1969, D/- 31-1-1979.
Advocates appeared
M/s. S. Balakrishnan and M. K. D. Namboodri, A. L. Wahi, Advocates, for Appellants; Mr. Soli J. Sorabjee, Addl. Sol. Genl. Mr. K. N. Bhat, Advocate and Mr. Girish Chandra, Advocate with him for Respondents Nos. 1-2 and Mr. O.P. Sharma, Advocate, for Respondents Nos. 3-10.

Headnote:
DHANICS Rules, 1965 – Rules 3, 5, 31 – Constitution of India, 1950 – Articles 14, 133, 16 – Appointment – Appellants filed a writ petition in the Delhi High Court, challenging the constitutional validity and legality of sub-rule (3) of Rule 5 of the DHANICS Rules, 1965, on the ground that it does not provide any guidelines to determine the exigency of the service and is therefore violative of Articles 14 and 16 of the Constitution : that there was no exigency of the service (DHANICS) which required the appointment of respondents 3 to 10 to that service by transfer from the respective State Civil Services – It was also contended that the impugned sub-rule (3) of Rule 5 adversely affects the existing rights of the writ petitioners and the terms of service on which they were appointed – Held, Respondents 3 to 10 are of the seniority of various years between 1946 and 1961, taking their length of service in their respective state services into consideration – As against this, the petitioners were appointed to the service in December 1962. Consequently, if the respondents were otherwise found suitable, their placement in seniority above the appellants was quite in accord with the Rules and fairplay. As regards promotion to the selection Grade, no member of the service can claim promotion as a matter of right – Further, under sub-rule (ii) of Rule 31, no officer is eligible for being considered for appointment to the Selection Grade unless he has put in a minimum of 12 years service in Grade II – At the time of the appointment of respondents 3 to 10, the appellants had hardly put in 5 years service – They completed 12 years service only – On the other hand, respondents 3 and 4 had put in more than 12 years of service in their respective State Services and even the last of them would be eligible for appointment to the Selection Grade in 1973 – This being the position, by no stretch of imagination, it can be said that the chances of promotion of the appellants to the Selection Grade were adversely affected by the appointment of respondents 5 to 10 – It will not be out of place to mention here that of the two respondents, who were appointed by transfer to Grade I of the Service, one has since died and the other has retired from service – Appeal Dismissed

Judgment

SARKARIA, J. :- This appeal by certificate, directed against a judgment, dated May, 6, 1968, of the High Court of Delhi, arises out of these facts :

2. As per Government Notification No. F.1/12/58, Delhi, dated March 15, 1961, the President of India in exercise of his powers under the proviso to Article 309 of the Constitution framed Delhi and Himachal Pradesh Civil Service Rules, 1961 (hereinafter called the 1961 Rules).

3. Rules 3 of the 1961 Rules constituted the Delhi and Himachal Pradesh Civil Service consisting of two grades, namely, Grade I and Grade II. The posts in Grade I were Central Civil Posts Class I (Gazetted) and those in Grade II were Central Civil Posts, Class II (Gazetted). Rules 5 and 29 of the 1961 Rules, respectively provide for; (i) the method of recruitment to the service; and (ii) the manner in which the seniority of the persons so appointed was to be determined.

4. Rule 5 prescribes these methods of appointment to the service, namely :-

(a) "by direct recruitment in the manner specified in Part IV of these rules" to not more than 50 percent of the substantive vacancies which occur from time to time in the permanent strength of the service; and

(b) "by selection" to the remaining substantive vacancies, in the manner specified in Part V of these rules from amongst -

(i) officers who are substantively borne on the cadre or Tehsildars employed in either of the Union Territory of Delhi or Himachal Pradesh; and

(ii) officers who hold substantively any of the posts mentioned in Schedule II, Parts A and B.

Proviso I of Rule 5 indicates a third method of appointment to the Service. Under the Proviso, "for a period of three years from the constitution of the service if a sufficient number of suitable officers is not available under clause (b) the requisite number of officers may, in consultation with the commission, be appointed to the Service by transfer of members of a State civil Service or other Service". Proviso II to the Rule reserves the right of the Central Government to hold a vacancy in abeyance, or to fill it on an officiating basis. Sub-rule (2) of Rule 5 empower the Government "if the exigencies of service so require", to vary, in consultation with the Commission, the percentage of vacancies to be filled by each method specified in sub-rule (1).

5. Rule 17 (to which Rule 5 was subject) of the 1961 Rules entitled the Central Government to appoint at the commencement of these Rules, to the Service any person who at such commencement was holding any of the posts specified in Schedule 1 or any equivalent post in the State of Punjab and Uttar Pradesh.

6. Thus, the personnel of the Service, under the 1961 Rules, was to be composed of :

(a) persons initially appointed under Rule 17.

(b) Direct recruits under clause (a) of Rule 5 (I) to the extent of 50 percent of the substantive vacancies in the authorised permanent strength.

(d) Transferees under the first proviso to clause (b) of sub-rule (I) of Rule 5.

7. Rules 6 to 12 of the 1961 Rules relate to direct recruitment. Rule 9 requires the commission to forward to the Central Government a list arranged in the order of merit of the candidates who have qualified in a competitive examination.

8. Recruitment by selection of persons mentioned in clause (b) of sub-rule (I) of Rule 5 is dealt with in Rules 13 to 16. Rule 13 provides for selection by a Selection Committee. The selection was to be made on the basis of merit and suitability with due regard to seniority.

9. Rule 18 of the 1961 Rules provides that all appointments to the Service shall be made to Grade I or Grade II and not against any specific post included in the Service.

10. Rule 29 of the 1961 Rules provides with regard to fixation of seniority of persons recruited to the 1961 Service from the various sources indicated above. This rule reads as under.

"The Central Government shall prepare a list of members of the service arranged in order of seniority as determined

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1979 Supreme(SC) 90

Cases Referred (1)