ASHOK KUMAR SAWHNEY Vs. UNION OF INDIA
SUPREME COURT OF INDIA
ASHOK KUMAR SAWHNEY
UNION OF INDIA
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(1.) The short question which falls for determination in this petition under Art. 32 of the Constitution of India praying for the issuance of appropriate writs quashing the letter dated 16th of March, 1979, by which the representation Made by the petitioner against the seniority assigned to him in the cadre of Income-tax Officers, Class I was rejected and he was informed that the seniority list forming an appendix to Annexure '1' had been correctly framed in accordance with the rules then in force.
(2.) The answer to the question posed by the petition has to be answered with reference to Rules 4, 6 and 8 of the Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971 (hereinafter called the Rules). The relevant part of Rule 4 (1) reads thus :
4 (1) Twenty per cent of the vacancies in the Indian Foreign Service, an:! 25 per cent of the vacancies in all the Central Civil Services and Posts, Class I, to which these rules apply shall be reserved for being filled by the Emergency Commissioned Officers and the Short Service Commissioned Officers of the Armed Forces of the Union who were commissioned after the 1st November, 1962 but before the 10th January, 1968, and who-
(i) ...... ...... ...... ...... ...... .........
(ii) in the case of Short Service Commissioned Officers are released on the expiry of the tenure of their services; or
(iii) ...... ...... ...... ...... ......
Rule 6 in so far as it is relevant for our purpose provides :
6 (1) ...... ...... ...... ...... ..... ...
(2) Seniority inter se of candidates who are appointed against the vacancies reserved under sub-rule (1) of Rule 4 and allotted to a particular year shall be determined according to the merit list prepared by the Commission on the basis of the results of their performance at the examination or test or interview.
(3) All candidates who have been appointed against the vacancies reserved under sub-rule (1) of Rule 4 shall rank below the candidates who were appointed against unreserved vacancies in the services of posts through the competitive examination or test or interview conducted by the Commission corresponding to the year to which the former condidates are allotted.
It is not disputed that the petitioner is an officer who is entitled to the benefit of reservation under the above abstracted portion of Rule 4 (1) and to have his seniority in accordance with sub-rule (3) of R. 6. As we read the sub-rule last mentioned we do not find it to be ambiguous in any manner whatsoever. It lays down in clear terms that the officers appointed against vacancies reserved under sub-r. (1) of R. 4 shall rank below candidates who were appointed against unreserved vacanciesin the services concerned through a competitive examination, etc. Respondents Nos. 2 to 14 who have been placed in the impugned seniority list above the petitioner were appointed to the cadre of Income-tax Officers, Class I, through a competitive examination or test as envisaged by sub-r. (3) of R. 6. Now if they were appointed against unreserved vacancies, they are entitled to rank above the petitioner but not otherwise. It is conceded before us that respondents Nos. 2 to 14 have been appointed against vacancies reserved for Scheduled Castes and Scheduled Tribes. Clearly, therefore, they must rank below the petitioner inasmuch as it cannot be said with any plausibility that they were appointed against unreserved vacancies.
(3.) Mr. Abdul Khader appearing for the Union of India has contested the interpretation just above placed by us on sub-rule (3) of Rule 6, According to him that interpretation makes the sub-rule retrospective in operation, which it is not. We agree that the sub-rule is intended to be prospective only and that the above interpretation would be operative only after the date on which the sub-rule was promulgated and not before that. But then that means that every seniority list prepared afterthe date of the promulgation of the sub-rule would be governed by it. Similarly, every promotion made and every question relating to seniority cropping up after the date of the promulgation of the sub-rule (which is 28th Aug,, 1971) shall be determined according to that sub-rule. No question of retrospectivity of the sub-rule is thus involved. Of course, the inter se seniority of officers of the cadre prevailing up to 28th Aug. 1971 had to be determined under the rules as they existed before that date and any promotions made earlier to that date would continue to be good if made in accordance with those rules. However, the position changed with the promulgation of the Rules and any promotion made thereafter, has to conform to them.;
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