Holding

Sub‑rule (3) of Rule 6 is clear that officers appointed under reservation rank below those appointed to unreserved vacancies, so the petitioner must rank above the SC/ST respondents, and Rule 8 makes this provision applicable prospectively.

Summary

Ex‑Capt. Ashok Kumar Sawhney was appointed to the Income‑Tax Officer, Class I cadre under the reservation provision of Rule 4(1) for armed‑forces officers, but was placed below respondents 2‑14 who had been appointed to Scheduled‑Caste/Tribe reserved vacancies through a competitive examination. He contended that, under sub‑rule (3) of Rule 6 of the 1971 Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, his seniority should be below only those appointed to unreserved vacancies, thereby ranking him above the SC/ST appointees. The Supreme Court examined the language of sub‑rule (3) and the effect of Rule 8, which makes all recruitment‑related rules applicable to the service. The Court held that the rule is unambiguous, that “unreserved” refers solely to non‑reserved posts, and that the rule operates prospectively from its promulgation date. Accordingly, the seniority list and the rejecting letter were quashed and the list must be re‑framed assigning the petitioner seniority above respondents 2‑14. The petition was allowed.

Issues considered

Whether sub‑rule (3) of Rule 6 of the 1971 Rules requires that officers appointed under reservation (Rule 4(1)) rank below candidates appointed to unreserved vacancies.
Whether the seniority of the petitioner should be above respondents appointed to SC/ST reserved vacancies.
Whether Rule 8 renders the 1971 amendment applicable to seniority determinations and whether it operates prospectively or retrospectively.
The proper interpretation of the term “unreserved” in sub‑rule (3) of Rule 6.

Subjects

reservationseniorityservice rulesinterpretationRule 6Rule 8unreserved vacanciesSC/STprospective applicationArticle 32

Judgment

A EX-CAPT. ASHOK Kl1MAR SAWHNaY
1'.

UNION OF INDIA & OTHERS

January 13, 1982
n
[A.O. KOSHAL, V. BALAKRISHNA ERADI AND R.B. MISRA, JI.]

Re/eastd Emergency Commissioned Officers and Short Service Commissioned
Officers (Reservation of Vacancies) Rules, 1971, Rules 4(1), 6(3) and 8-Inter·
Pretation of-'Recruitment'-Meaning of. ./'

c ResPonC:ents Nos. 2 to 14 were appointed to the cadre of Income-tax Officers,
Class I, against vacancies reserved for Scheduled Caste and Schedules Tribes, as
a result of a Competitive examination or test as envisaged by sub-rule (3) of
Rule 6. The Petitioner was similarly appointed to the same cadre but against a
vacancy reserved under sub-rule (1) of Rule 4 for certain officers of the Armed
Forces of the Union. He was placed in the imi::ugned seniority list below respon·
dents Nos. 2 to 14. He made a representation against the seniority assigned to him
D on the ground tha~ under sub-rule (3) of Rule 6 he was entitled to rank immedia-
tely below candidate~ appointed against unreserved vacancies. The representation
was rejected by a letter dated 16th March, 1979. The petitioner filed a petition
under Art. 32 of the Constitution of India s:eking the issuance of a writ quashing
that letter. At the hearing it was not disputed that the petitio11er was entitled to the
benefit o:f reservation sub-rule (1) of Rule 4 and to have his seniority determined
in accordance with sub-rule (3) of Rule 6. However, it was contended on behalf
E of the respondents Nos. 2 to 14, inter alia, that the rules of the service had been
amended earlier to 1971, so as to place candidates covered by sub-rule (1) of
Rule 4 below those who had been appointed against reserved vacancies through
a competititive examination.
+
Accepting the petition, it was

F
HELD : (1) Sub-rule (3) of Rule 6 is not ambiguous in any manner what·
soever and lays down in clear terms that the officers appointed against vacancies
reserved under sub-rule.(I) of Rule 4 shall rank below candidates who were
appointed against unre1erved VacanrieS in the Services concerned through a com.
petiye examination, etc. [40 F-G]

2. Respondents Nos. 2 to 14 have been appointed against vacancies
G
reserved for Scheduled Castes and Schedule Tribes. Clearly therefore, they
must rank below the petitioner inasmuch as it caanot be said with aay plausibility
that they were appointed against unreserved vacancies. [41 A-BJ ,

3. The argument that the rules of the service in question had been amended
H to 1971, so as.to place candidates coverved by Rule 4(1) below those who bad
been appointed to reserved vacancies through a competitive examination has no
substance and makes no difference to tht iOterpretation which is-given above ·to
A.It. SAWHNEY '· UNlON (Koshar, J.) 39
sub-rule (3) of Rule 6, Rule 8 of the Rules declares in no uncertain terms that A
all rules regulating the recruitment of persons to Central Civil Services and Posts,
Class I, to which the Rules apply, shall be deemed to have been amended to the
extent provided for in the Rules. Although the rules regulating the seniority of
the petitiopers and respondents Nos. 2 to 14 were so amended earlier to 1971 as
to assign to the petitioner seniority below respondents Nos 2 to 14, the situation
is Wholly irrelevant to the present dispute because after the ameOdooent brought
about by Rule 8 of the Rules, the members of the service to :which the contenting 3
parties belong, have to be governed by 1he later amendment, of which sub-rule
(3) of Rule 6 forms a part. This is the inescapable consequence fl.owing from
Rule 8 of the Rules. [41 G-H, 42 A-DJ
4. The word 'recruitment' is comprehensive enough to embrace the content
of all the rules proceeding Rule 8 including the fitment of candidates recruited
to the service vis-a-vis each other. [42 D-E] c
ORIGINAL JURISDICTION : Writ Petition No. 1337 of 1979.

(Under article 32 of the Constitution of India). '

V.M. Tarkunde, P.H. Parekh and Hemani Sharma for the • D
Petitioner.

Abdul Khader, Girish Chandra and Miss A. Subhashini for the
Respondents.

The Order of the Court was delivered by E
KosHAL, J. 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 F
Officers, Class-I was rejected and he was informed that the seniority
list forming an appendix to Annexure 'l' 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 G
,Emergency Commissioned Officers & Short Service Commissioned
Officers (Reser vat.ion of Vacancies) Rules, 19 71 (hereinafter called
the Rules). The relevant part of Rule 4(1) reads thus :

4(1) Twenty percent of the 'vacancies in the Indian Foreign
H
. Service, and 25 percent of the vacancies in all the Central Civil
Services and posts, Class I, to which these rules apply ................ ..
40 1198~1 j s.c.lt.

A shall be reserved.for being fill~d by the Btnergency Commissioned.
Officers and. the Short ,Service ..Commissioned Officeri; .of the Armed.
ForceH>fthe Union.who wcrc~omUJissioned.,after.the 1st November,
1962 'but before the 10th January, 1968', and who-
(i) ,,,,, ......................................... ..
B (ii) in the case·of.Sllort Service Commissioned Officers ue .
released ·on·the expiry•of•tlre·tenure of'th'eir service; or
(iii) ....: ............................................. .

Rule '6 in so far as·it is relevant for our purpose provides :
c ~I) ................................................. .

(2) Seniority inter se of candidates who are appointed
against the· vacancies. rflllt'ved' uadc!l' sub-l'ule (I) of
rule 4 and allotted to a particular year shall be deter-
D
• mined accordillg to the· merit list· prepared by tl:le
Commission on the basis of the results of their perfor•
mance at the examination or test or interview.
(3) All candidates who have been appointed . against: tho·
vacancies reserved under sub-rule (I) of rule 4 shall
rank below tho<1:andidates who Wire· appointed1again1t
E unreserved vacancies in the services of posts through
the competitive examination· or test or interview con-
ducted by the CommiSsh>n corresponding to the year
to which the former candidates are-allotted.
+
It is not disputed thaMhe·petitioner·i~·an· officer· who is· entitl•.
F ed to the benefit of' reservation under·the11bove abstracted portion
of Rule 4(1) ·and to have his seniority· accordance with sub-rule
(3) of Rule 6. As we read the sub·role 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-rule (I) of Rule 4 shall rank.below candidates who were
G appointed against unreserved vacancies in 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 .e;tamination or test aunvisaged. by sub-rule(3)
H
of Rule 6. Now if they were. appointed,ag~inst unreserved. vacaD::
ci~s, they are eniitled to rank above the petitioner but not otherwise.
•
A.K. SAWHNEY v. UNION (Koshal, J.) 41

It is conceded before us that respondents Nos. 2 to 14 have been A
--+ 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
B
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
c
that every seniority list prepared after the 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 August,
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 upto 28th August, 1971
bad 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 E
made thereafter has to conform to them.

4. Faced with the above situation Mr. Abdul Khader argued
that the word, 'unreserved' in sub.rule (3) of Rule 6 would embrace
the vacancies reserved· for candidates belonging to the Scheduled
Castes and Scheduled Tribes who bad joined the cadre through open F
competition, etc., because the sub-rule meant to take within its ambit
all such persons who had been recruited in that manner. The logic
of the argument is not clear to us because it makes the whole sub-
rule meaningless. If the argument were to be accepted, the use of
the word 'unreserved' would be wholli uncalled for and· we just
cannot bold that the word is redundant, forms part as it does of G
subordinate legislation. The word 'unreserved' can obviously not be
.equated with its antonym, that is, 'reserved', and has to be applied
only to vacancies which do not fall within the reserved categories.

H
5. Mr. Abdul Kbader took another point and that was to the
effect that the rules of the servic~ ill ~uestion haq been am~nd~q
SUPREME COURT REPORTS (1982] 3 S.C.R.
A
· earlier to 1971 so as to place candidates covered by Rule 4(1) below
those who had been appointed to reserved vacancies through a
competitive examination. That may well have been so but then
that makes no difference to the interpretation which is given above
to sub-rule (3) of Rule 6. Rule 8 of the Rules declares in no
uncertain terms that all rules regulating the recruitment of persons
B to Central Civil Services and Posts, Class I, to which the Rules
apply, shall be deemed to have been amended io the extent provided '
for in the Rules. If the rules regulating the seniority of the petitioner
and respondents Nos. 2 to 14 were so amended earlier to 1971 as' to
assign to the petitioner seniority below respondents Nos. 2 to 14, the
situation would be wholly irrelevant to the present dispute because
c after the amendment brought about Rule 8 of the Rules, the members
of the service to which the contested parties belong, have to be
governed by the amendment of which sub-rule (3) of Rule 6 forms
a part. This is the inescapable consequence flowing :rrom Rule 8 of ·
the Rules.
D 6. We may take note here of the only other argument raised
by Mr. Abdul Khader and that is that Rule 8 regulates only the
recruitment of persons to Central Civil Services and Posts, Class I,
and not to their conditions of service. We do not find any substance
in this argument either.. The word 'recruitment' is comprehensive
enough to embrace the content of all the mies preceding Rule 8
E including the fitment of candidates recruited to the service vis-a.vis
each other.

7. In the result, we accept the petition, quash the seniority i
list abovementioned as well as the letter by which the representation
there against made by the petitioner was rejected and direct respon-
F dent No. l to re-frame the seniority list assigning the petitioner
seniority in accordance with law as explained above. There will be
no order as to costs.

N. K. A. .Petition allowed.
G