AWADH PRASAD SINGH AND ORS. v. STATE OF BIHAR AND ORS

Citation: [1990] 2 S.C.R. 193

Court: Supreme Court of India

Bench: B.C. RAY, K.N. SAIKIA

Case summary

This has been challenged by the respondents on the ground that there is an apparent error commited by the State in showing the respondents juniors to the appellants in the gradation list....

Judgment text

The Judgment of the Court was delivered by RAY, J. Arguments heard. Special Leave granted. This appeal on Special Leave is directed against the Judgment and Order dated April 1, 1987 passed by the High Court, Patna m C. W. J. C. No. 4097/1985 allowing the writ petition in part. The subject matter of the writ petition is the gradation list dated 9. 1. 1986 of tne Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the petitioners (respondents in this Ap· · peal) who were promoted vis-a-vis the respondents Nos. 3 and 4 . _.... _ lappellants in this appeal) who are promoted to posts of Inspectors of Excise in 5% quota for prom:>tion from the posts of Upper Division Assistants of Excise Department in the said Civil Writ Petition.. The matrix of this case in short is that the appellants Nos.

1 and 2 who were respondents 3 and 4 of the writ petition were promoted to the posts of Excise Inspectors from among the Upper Division Assistants ofthe Excise Department against the vacancies of the year 1974-75 and they joined as Inspectors of Excise on May 7; 1976. The respondent Nos. 3 and 4 who were Sub-Inspectors of Excise were promoted on 24. 4. 74 in the vacancy of the year 1974-75 by the Commissioner of Excise, Bihar. In the gradation list prepared by the Government on January 9, 1986 the appellants were shown as seniors to the respondents even though ihe respondents were promoted from selected Sub-Inspectors of Excise and they joined the posts of Excise Inspectors earlier than the date_ when the appellants were promoted as Excise Inspectors. This has been challenged by the respondents on the ground that there is an apparent error commited by the State in showing the respondents juniors to the appellants in the gradation list. The gradation list was challenged mainly on.

two grounds namely: (1) the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for determinging the same was the ExCise Commissioner who has neither determilled the seniority nor prepared the gradation list. A. P. SINGH v. STATE OF BIHAR {RAY, l. ] 197 (2) The respondents (petitioners of the writ petition) have continuously officiated for years together in the vacancy of direct recruits and merely because the respondents were appointed ·~ against the vacancy of direct recruits they could not be pushed down for determining the seniority and shown junlor to the contesting appellants.

The writ petition was allowed by the High Court holding that the respondents were not appointed in the 5% quota set apart for being filed up by promotion from the posts of Upper Division Assistants in the Excise Department inasmuch as this quoa was notified by the Government on March 31, 1975 ) even though the Government passed order providing 5% of the total vacancies to be filled by the promotion from among the selected Upper Division Assistants and selected Head Clerks. It has, therefore, been contended that the petitioners Nos. 3 and 4 (respndents Nos. 3 and 4 in this appeal} cannot be shown as juniors to the appellants. Moreover it has been alternatively urged that these respondents having been promoted to the posts of Inspectors of Excise in the quota of direct recruitment for several years, they could not be pushed down and the appellants who joined on promotion to the posts of Inspectors of Excise subsequently cannot be shown as senior to the respondents Nos.

3 and 4 in the said gradation list. The High Court, Patna after hearing the parties held that the respondents Nos. 3 and 4 who were appointed in the vacancies of the promotees of the year 1974-75 and who joined as Inspectors on 24. 4. 1974 cannot be made juniors to appellants Nos. 1 and 2 who were promoted and joined two years later on 7. 5. 1976. The High Court allowed the writ petition in part by quashing the gradation list (Annexure 15) and directed the Government to draw up a fresh gradation list in the light of observations made therein. It is against this judgment and order passed in C. W. J. C. No. 4097/85, the instant appeal on special leave has been filed by the appellants.

The only question that falls for consideration in this appeal is whether the appellants who claim to be promoted to the posts of Inspectors of Excise in the 5% quota set apart for promotion to the posts of Inspector of Excise from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974-75 had been promoted in this quota. In order to decide this. question, it is relevant to refer to certain provisions of the Bihar Excise Act, 1915 as well as Rules 1& 4 of the Inspectors of Excise Recruitment Rules, 1936. Section 2(7) of the Bihar Excise Act, 1915 (hereinafter referred to as Act) defines Excise Commissioner "as the Officer appointed under Section 7 sub-section 2 clause (a) of the said Act".

Section 7 Sub-Section (2)(a) provides that the State Government may appoint an officer who shall subject to such control as the State Government may direct, have the control of the administration of the Excise Department and the collection of the excise revenue. Section 7(2)(a) further provides that the State Government may delegate to the Board, the Commissioner. of a Division or the Excise Commissioner all or any of the powers conferred upon the State Government by or under this Act except the powers conferred by Section 89 to make Rules. Section 7(2)(f) provides that the State Government may withe . draw from any officer or person all or any of the powers or duties conferred or imposed upon him by or under this Act. By Notification No. 417 dated January 15, 1919, in exercise of the powers conferred under the Act, the Lt.

Governor in Council was pleased to make in clause (ii) of the Notification order to the effect that there shall be an Excise Commissioner who shall subject to the control of the Board will have throughout the province of Bihar the c_ontrol of the administration of the Excise Department and the collection of excise revenue. It has also been provided in clause (iv) of the Notification that the power to appoint by promotion Inspector of Excise was delegated to the Excise Commissioner by the Government. Thus, it is clear and apparent that the Excise Commissioner has been delegated the powers by the State Government to appoint by promotion from selected Sub-Inspectors of Excise, but nc ... _ recruitment was not made for number of years and the posts of direct ·- recruits were filed up by promotion. The promotees were allowed to function in the promoted posts for 15 to 20 years. Thereafter direct recruitment was made. There was a rule which empowers the Government to relax the quota.

It was held that whenever a person is appointed in a post without following the rules prescribed for that appointment to the post, he should not be treated as a person regularly appointed to that post. Such a person may be reverted from that post but in a case where persons have been allowed to function in higher -' posts for 15 to 20 years without due deliberation it would be unjust to hold that they had no claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all particularly where government is endowed with the power to relax the _. - . rules to avoid injustice. It has been held by this Court that continuous t.. officiation of the promotees could be justified on the basis of the rule 16 on the presumption that the Government had relaxed the rules and _appointed the promotees to the posts in question to meet the administrative requirements. In the mstant case undoubtedly, the Government made an order on 20.

3, 1974 for reservation of 5% of the posts for recruitment by promotion from among selected confirmed Upper Division Assistants of the Commissioner's Office and the selected confirmed Head Clerks of the District Excise Offices. Pursuant to that order, the Govem- ·-y ment later on publised a Notification S. O. 411 in the Bihar Gazette on March 31, 1975 stating therein about the quota of 5% of total vacancies reserved for the promotion of the selected Upper Division Assistants to the post of Inspectors of Excise. It has been urged by the learned counsel appearing on behalf of the respondents that the respondent Nos. 3 and 4 being promoted and appointed as Inspectors of Excise from the 75% quota for promotion from selected Sub- Inspectors of Excise in April, 1974 they cannot be shown as junior to the appellants, in the seniority list inasmuch as the appellants were appointed on 7. 5. 1976.

It has been further submitted in this connection that the appointment of the appellants on promotion from the 5% quota of the vacancies available in 1974 cannot be made. It has also been submitted that the Notification referring to the 5% quota for promotion of Upper Division Assistants cannot be deemed to be a quota in respect of vacancies for the year 1974-75. As such quota cannot be enforced unless and until the reservation of 5% quota of vacancies is published in the official gazette for information of the public. In support of this submission the decision in Harla v. State of Rajasthan, [1952] SCR 110 was cited at the Bar. In this case on 11. 12. 1923 the counsel passed a resolution which purported to enact a law called The Jaipur Opium Act and the only question was whether the mere passing of the resolution without promulgation or publication in the Gazette or by other means to make the Act known to the public was sufficient to make it a law and enforce the same.

There was an amendment of Section 1 of the Jaipur Opium Act to the effect that it shall came into force from 1. 9. 1924. The Act was never published in the Gazette. It was held that the Jaipur Laws Act 1923 which required the whole of the Act to be published instead of publication of only one section, will not validate the same. In the instant case, the Government made an order reserving 5% of the total vacancies in a year for being filled in by promotion from the selected Upper Division Assistants and Notification to that effect was published in the Gazette in March, 1975. This Notification related to the vacancies for the year 1974-75 i. e. the year ends on March 31, 1975. It is pertinent to refer to the specific averments made by Excise Commissioners, Government of Bihar, on behalf of the respondent Nos. I and 2-The State of Bihar and Commissioner-cum-Secretary, Excise and Prohibition, Government of Bihar.

It has been stated in paragraph 3 of the Counter Affidavit: "That the promotion of the petitioners were caused in the Quota of 5% which was given to the petitioner by a Notification dated 31. 3. 1975 which is annexed in the petition as Annexure-A but due to the noting given in the File, firstly by the Member of Board of Revenue on 20. 3. 1974 and the same has caused promotion to the petitioner which should not have been done unless there is a notification in effect to the noting given by the State Government. " Noting given by the Board is reproduced herein below: "5% quota in the cadre of Excise-Inspector is given from the cadre of confirmed Upper Division Clerks, Excise Commissioner's office and confirmed Head Clerks of District offices.

" ) 1t has been further stated that in the year 1976 the Secretary of the Commission, Excise Department gave a note whose English translation is given below: "As stated at page 22 of the notesheet that the pay scale of Upper Division Assistants is more than the Head Clerks and therefore they will rank senior on that basis. So first of all the question of promoting Sarvasri Awadh Prasad Singh and Ram Vriksh Pd. Singh's against the vacancy at Roster 67 and 68 has to be considered. The question of promotion of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd. would be considered against future vacancies and therefore it is proposed to keep their names in the waiting list Sd/-Ravikishore Narain 26. 4. 1976" It has been further stated in paragraph 5 of the said affidavit that the Excise Commissioner accordingly passed an order in the year 1976, ~ which is dated 5. 5. 1976, promoting the petitioner in accordance with the quota.

The English translation of the same is as follows: "So far the question of promotion of Assistants/Head Clerks is concerned the rule has been framed in 1974 and for the first time pror. iotion is being given on this account. I have carefully gone through the above rules and from perusal of the file it would appear that only 5% of the total vacancies shall be filled in by the promotion. Jn the rule, the word 2% at least" has come perhaps inadvertantly in "at least 5%:'. There is no such mention in the file. On this basis, as has been mentioned in the note of the Secretary only two posts have to be filled up from the quota of Assistants. So far as the persons by whom the filling up of the vacancies are concerned, I agree with the note of the Secretary marked 'Kh' in the notesheet i. e. at present '/"- Awadh Prasad Singh and Ram Brikh Pd. Singh should be promoted. The name of Vidyadhar Pd. and Devendra Narayan Pd. should be kept in the waiting list.

" It has been further stated that the Notification giving 5% quota which is annexed in the petition as Annexure-A from the grade of Assistant/Head Clerks came into picture only on 31. 3. 1975 on the basis of order made by Government in March, 1974. However, the petitioners were promoted on the vacancies caused in the year 1974- 75, because the decision was taken in the year 1974 itself and accordingly the Department carried out the same and accordingly a Gradalion List was prepared. A counter affidavit has also been filed on behalf of the respon- - _,. ,. _ dent Nos. 6 & 7, that is, promotees, Inspectors of Excise. It has been stated in paragraph 6 that the rules of recruitment of Inspectors of Excise were modified by Notification No. 411 dated 31. 3. 1975. There was no provision in the Excise Act and Rules for appointment of Inspectors of Excise from among selected Assistants of Commissioner's office and Head Clerks of the District Excise offices prior to this Notification.

This Notification for the first time required the Department of Excise to fill at least 5% of the total vacancies by promotion ' from among the confirmed Upper Division Assistants and selected -- Head Clerks. The respondents were promoted as Inspectors of Excise from Sub-Inspectors of Excise vide Order 2091 dated 24. 4. 1974 in their own quota and joined the promotional posts on 1. 5. 1974. It has ~ also been stated that the appellants were appointed Inspectors of Ex- ,J cise in the year 1976 and joined on 7. 5. 1976. Apparently there was no quota for appointment of Inspectors of Excise from among Assistants and Head Clerks in the year 1974 and the averments made by the respondent State or appellants to this effect is ma/a fide, ridiculous and --false. The appellants being appointed in the year 1976 by virtue of the Notification which came into existence on 31. 3.

1975 cannot claim this vacancy of 1974 and hence seniority allotted to them by the respondent-State was in flagrant, violation of law laid down by the Supreme Court and hence the High Court rightly allowed the C. W. J. C. No. 4097/85 against the appellants herein. y' In the supplementary rejoinder affidavit on behalf of the appel- ! ants it has been stated in paragraph 4 that the State of Bihar has proved the appellants, right to promotion on a vacancy that occurred in 1974 by the following clear admissions made by the State of Bihar in its counter affidavit. "So far the question of promotion of Assistants or Head Clerks is concerned, the rule has been framed in 1974 and for the first time promotion is being given on this account. " "However, the petitioners were promoted on the vacancies caused in the year 1974-75, because the decision was taken ) in the year 1974 itself and accordingly the Deparment carried out the same.

" It has also been stated in paragraph 5 of the said Rejoinder: "That the Government who was clearly conscious of the rights created by the decision to amend the Rules taken in 1974 and in accordance with the decision a Notification was issued later in March 1975. But the ministerial failure to make the Notification conformed to the decisions taken in 1974 is no more than a clerical error and th" Government therefore rightly promoted the petitioner within their quota against the vacancies occurred in 1974 by its Order. " It has been further stated in paragraph 10 of the said rejoinder: "That there is a provision of seniority of Excise Inspector in Rule 6 of Recruitment Rules vide notification no. 54 dated 3. I. 1936 for Excise Inspector. It is clearly stated that the seniority of all Inspectors on confirmation will be determined in accordance with Government Order No. 6509/A dated 12. 12. 1934 which is still in force.

Besides there are also Government instructions with regard to seniority such as letter No. 15784 dated 26. 8. 1972. The High Court ought to have considered the Rules of seniority when the case related to the seniority of Excise Inspector. " In paragraph 11 it has been further averred: "That in view of the clear admission of the Government the petitioners are entitled to the benefit of promotion with effect from as against the vacancies of 1974 as fixed by the Government and the High Court order is liable to be set aside and the appeal may be allowed. " It thus appears from a perusal of the Affidavit-in-counter sworn by the Commissioner of Excise on behalf of the State of Bihar, the respondent Nos. l and 2, that the order creating 5% of the vacancies for promotion from the posts of confirmed Upper Division Assistants and selected Head Clerks have been made by the Notification dated 31. 3. 1975, though according to the noting given in the File by the Member, Board of Revenue on 20. 3.

1974 on the basis of the Government Order the petitioners (appellants of this appeal) were promoted in the vacancies of the year 1974-75' by order of the Excise Commissioner dated 5. 5. 1976. Therefore, the argument on behalf of the respondents in this appeal that the appellants were promoted against the 5% quota in respect of the vacancies of the year 1975-76 is not . sustainable. The appellants having been appointed in the quota of 5% out of the vacancies of 1974-75 are entitled to be shown as senior in the gradation list prepared by the Government on 9. 1. 1986. We have already mentioned hereinbefore that the respondent Nos. 3 and 4 were promoted from the selected Sub-Inspectors Excise, that is, in the 5% quota reserved for promotion from the Upper Division Assistants of the Excise Department. In accordance w~th the decisions rendered by this Court in the case of V. R. Badami v. State of Mysore, (supra) the respondent Nos.

3 and 5 who were promoted to officiate in the 5% quota of Upper Division Assistants and confirmed Head Clerks are to be pushed down as soon as the appellants have been recruited in the said quota to the posts of Inspectors of Excise in 1976 inasmuch as the promotion though not illegal is irregular and the promotees are to be accommodated in the vacancies of subsequent years in their quota. It is only in the case of Narendra Chandha v.

Union of India, (supra) exception was made by this Court to the aforesaid' decision on the ground that the quota was broken down or not adhered to as there was no recruitment from the quota of direct recruits for a period of 15 to 20 years and the promotees were allowed to officiate in the quota of direct recruits for a long period of 15 to 20 years, in such circumstances, it was held that in view of Rule 16 empowering the Government to relax the quota rules, the promotees officiating in the vacancies of direct recruits were presumable permitted to do so in relaxation of the quota as such the seniority will be determined from the date of their continuous officiating in the said posts. Similar view has been expressed in G. S. Lamba's case (supra). In the instant case there was no rule for relaxation of the quota nor the respondent Nos.

3 and 4 · who were promoted from selected Excise Sub-Inspectors to the Inspectors of Excise in the 5% quota of Upper Division Assistants in 1974 officiated. till 7. 5. 1976 when the appellants joined as Inspectors of Excise from their 5% quota. It cannot be said in such circumstances that the quota has not been filled up for a long period nor can it be said that the respondents 3 and 4 who were promoted in excess of their quota have worked as Inspectors of Excise for long time and as such the respondents Nos. 3 and 4 cannot calim to be seniors to the appellants. Moreover, it is evident from the affidavit of the Commissioner of Excise on behalf of the State of Bihar that the 5% quota of vacancies were brought into being by the Board of Revenue of March 20, 1974 though there was delay in notifying the. same in the Gazette till 31. 3. 1975. Nevertheless, it has been subsequently averred that the appellants were promoted from the said 5% quota of vacancies of the year 1974-75.

In these circumstances on a conspectus of the decisions referred to hereinbefore as well as of the Government Order reserving 5% quota of vacancies on 20. 3. 1974 and subsequent Notification of the same on 31. 3. 1975 the only conclusion that follows is that the appellants being promoted as Inspectors of Excise from the 5% quota of vacancies of the year 1974-75, they were rightly shown as seniors in the gradation list prepared by the Government on 9. 1. 1986. The findings of the High Court to the effect that the appellants were not promoted in the 5% quota of vacancies for the year 1974-75 is wholly wrong. Accordingly, the gradation list prepared by the Government on 9. 1. 1986 showing the appellants as seniors to the respondents are quite legal and valid and so the same is upheld. We, therefore, set aside the judgment and order passed by the High Court in C. W. J. C. No. 4097/ 85. In the facts and circumstances of the case, there will be no order as to costs. S. B. Petition allowed.