KESHAV CHANDRA JOSHI AND ORS. ETC.versusUNION OF INDIA AND ORS.

         KESHA V CHANDRA JOSHI AND ORS. ETC.
                                                                          A
                          v.
               UNION OF INDIA AND ORS.

                        NOVEMBER 6, 1990

      [RANGANATH MISRA, CJ, M.M. PUNCHHI AND                              B
                K. RAMASWAMY, JJ.)

      U.P. Forest Service Rules, 1952: Rules J(h), 5(a)(b)-Appendix
'A' & 'B'-6, 24 and27.                       ·       ·

     Service Law-Seniority-Assistant Conservators of Forest-
Direct recruits and promotees-Fixation of seniority-Appointment of C
promotees on ad hoc basis as a stop gap arrangement and dehors the
rules-Promotees holding posts continuously for a long period-
Continuous length of ad hoc service from the date of initial appoint-
ment-Whether should be counted towards seniority.
                                                                          D
      Rules relating to 'Conditions of service'-Power of Governor to
relax-Consultation by Governor with public Service Commission is
mandatory-Word 'may' in Rule 27 has been used in the context of
discharge of duty-It must be read as 'shall':

      'Rules of recruitment' and 'Conditions of service'-Distinction E
between-Rule 5(a)(b) and Appendix 'A' & 'B' are basic rules of
recruitment and not subject to Rule 27.

     Promotees appointed on ad hoc basis and dehors the Rules-
Allowing the promotees to officiate for a long period-Whether
appointment should be deemed to have been made in relaxation of the       f
Rules.

      Under U.P. Forest Service Rules, 1952 recruitment to the posts of
Assistant conservators of Forest was made from two sources, namely,
by direct recruitment, under Rule 5(a) read with Appendix' A', and by
promotion of permanent Forest Rangers, under Rule 5(b) read with G
Appendix 'B'. Rule 6 of the rules provided that not more than 25% of
the total number of posts shall be filled by promotion.

      The petitioners (promotees) were appointed to the posts of.Forest
Rangers. Due to pendency of legal proceedings there was no direct
recruitment to the posts of Assistant Conservators of Forest under Rule   H

                                  573
    574         SUPREME COURT REPORTS                [ 1990] Supp. 2 S.C.R.

    5(a) till 1974 and even thereafter. The petiiioners-promotees were
A
    appointed on the posts of Assistant Conservators of Forest on ad hoc
    basis, between March 13, 1974 and November 21, 1981 subject to direct
    recruitment and they were continuing temporarily on ad hoc basis for
    varying period of 5 to 12 years. With effect from 1st May, 1975 the ratio
    of 25% recruitment of promotees under Rule 6 was increased to 33
B   1/3%. lo the meanwhile the direct recruits under Rule S(a) were
    appointed on probation to substantive vancancies. When their claim
    was ripe for consideration as Deputy Conservators of forest, the
    petitioners claiming seniority over them filed Writ Petitions in this
    Court contending (i) that though the promotees were appointed on ad
    hoc basis due to non-availability of direct recruits yet they were con-
    tinuing for well over S to 12 years discharging the same duties, drawing
c   the same scale of pay without any reversion; their posts were not
    fortuitous, nor stop gap. Consequently their entire continuous length of
    service from the dates of their initial promotion should be counted
    towards their seniority; (ii) since the promotees were allowed to
    officiate for a long period they must be deemed to have been appointed
D   in relaxation of the rules of recruitment under Rule 27 of the ntles by
    the Governor. ,

          On behalf of the direct recruits it was contended (i) since the
    appointment of the promotees was on ad hoc basis and not on the basis
    of merit as per rules they have no right to the posts. Consequently the
E   service rendered by them from the dates of initial promotion till date of
    substantive appointment being fortuitous cannot be counted towards
    seniority; (ii) since the promotees were appointed in excess of the pre-
    scribed quota in Rule 6, they should be pushed down to the vacancies
    that bad arisen in each year above the direct recruits as per the ratio as
    the promotees were not entitled to claim seniority from the initial dates
F   of their respective promotions; (iii) that the power of relaxation in Rule
    27 was only in respect of conditions of service and not relating to
    recruitment or promotion.

          Disposing the petitions, this Court,

G         HELD: 1. Under rule S read with Rule 3(h) of the U.P. Forest·
    Service Rules, 1952 a member of the service means a person, be it direct
    recruit under rule 5(a) or promotee under Rule S(b), appointed in a
    substanfiVe capacity to the service as per the provisions of the rules. lo
    order to become a member of the service be must satisfy two conditions,
    namely, the appointment must be in substantive capacity and the
H   appointment has to be to the post in the service according to rules and
•                                   K.C. JOSHI v. U.0.l.                     575

         within the quota to the substantive vacancy. There exists marked dis·      A
         tinction between appointment in a substantive capacity and appoint-
         ment to the substantive post. Therefore, the membership to the service
         must be preceded by an order of appointment to the post validly made
         by the Governor. Then only he becomes member of the service. Any
         other construction would he violation of the rules.
                                                                                    B
                 2. Employees appointed purely on ad hoc or officiating basis due
         to administrative exigencies, even though continued for a long spell, do
         not become the members of the service unless the Governor appoints
         them in accordance with the rules and so they are not entitled to count
         the entire length of their continuous officiating or fortuitous service
         towards their seniority. Reckoning continuous officiating of ad hoc        c
         promotion would enable the less privileged to excel their latent capabi-
         lities in the cadre post.

               Narendra Chadha v. Union of India, [1986] 1S.C.R_.211; Balesh-
         wardas v. State of U.P., [1981] 1 S.C.R. 449; N.K. Chauhan v. State of
                                                                                    D
         Gujarat, [1977] 1 S.C.R. 1037 and Direct Recruits Class II Engg. Offic-
         ers' Association v. State of Maharashtra, [1990] 2 S.C.C. 715; A.I.
         Patel & Ors. v. State of Gujarat & Ors., A.I.R. 1965 Guj. 23 (FB):
         referred to.

               Masoor Akhtar Khan & Ors. v. State of M.P. & Ors., J.T. 19903
         S.C. 295; followed.                                                        E

              A.K. Kraipak & Ors. etc. v. Union of India & Ors., [1970] 1
         S.C.R. 457; cited.

               2.1 In the instant case due to exigencies of service temporary
         promotions against substantive vacancies were made. It is undoubted        F
         that preceding their promotion, an ad hoc Committee had considered
         the cases of the promotees. Admittedly seniority subject to rejection of
         unfit was the criteria, followed in the selection. The selection was,
         therefore, in defiance of and dehors Rule 5(b) read with Appendix 'B'.
         The promotions were on ad hoc basis pending direct recruitment and
         were in excess of the quota prescribed under rule 6. By no stretch of      G
         imagination it could be said that the promotions were made to a sub-
         stantive post in accordance with the mies. Therefore, the promotees do
         not hold the post in substantive capacity. Accordingly their continuous
"'__,'   length of ad hoc service from the date of initial appointment cannot be
         counted towards seniority.
                                                                                    H
    576         SUPREME COURT REPORTS                 [1990] Supp. 2 S.C.R.

          3. The pre-requisite of the right to inclusion in a common list of
A
    seniority is that all those who claim that right must broadly hear the
    same characteristics. Fortuitous circumstances of their holding the
    grade post carrying the same designation or scale of pay or discharging
    the same duty would not justify the conclusion that they being to the
    same cadre.
B
          4. An officer appointed by promotion in accordance with Rules
    and within quota and on declaration of probation is entitled to rackon
    his seniority from the date of promotion and the entire length of service,   •
    though initially temporary, shall be counted for seniority. Ad hoc or
    fortuitous appointments on a temporary or stop gap basis cannot be
    taken into account for the purpose of seniority, even if the appointee
c   was subsequently qualified to hold the post on a regular basis. To give
    benefit of such service would be contrary to equality enshrined in Arti-
    cle 14 read with Article 16(1) of the Constitution as unequals would be
    treated as equals. When promotion is out side the quota, the seniority
    would be reckoned from the date of the vacancy within the quota,
D   rendering the previous service fortuitous. The previous promotion
    would be regular only from the date of the vacancy within the quota and
    seniority shall be counted from that date and not from the date of his
    earlier promotion or subsequent confirmation. 1n order to do justice to
    the promotees it would not be proper to do injustice to the direct
    recruits. The rule of quota being a statutory one must be strictly imp-
E   lemented and it is impermissible for the authorities concerned to deviate
    from the rule due to administrative exigencies or expediency. The result
    of pushing down the promotees appointed in excess of the quota any
    work out hardship but it is unavoidable and any construction otherwise
    would be illegal, nullifying the force of statutory rules and would offend
    Articles 14 and 16(1).
F
          5. Since the rules are legislative in character, they must harmoni-
    ously be interpreted as a connected whole giving life and force to each
    word, phrase and rule and no part thereof should be rendered nugatory
    or a surplusage. Resort to iron out the creases could be had only when
    the constrnction of the relevant rule, phrase or word would lead to
G   unintended absurd results.

          5.1 In an appropriate case if the court rmds that wanton or deli-
    berate deviation from the roles was made by the implementing autho-
    rity the court should call upon them to explain the reasons therefor and
    in the a6sence of proper explanation fo[lhcoming castigate the autho-
H   rity and pass strnctures condemning the actions which would discipline
                                K.C. JOSHI v. U.0.l.                        577

     the authorities to adhere to the rules. Undue latitude and acquiesce
     thereto would not only defeat the due enforceme~t of the rules but also       A
     create disorder and frustration among the members of the service.

           5.2 Rule 27 of the U.P. Forest Service Rules, 1952 goves power to
     the Governor that if he is satisfied that the operation of any rule regard-
     ing conditions of service of the members caused undue hardship in a           B
     particular case; he may consult the Public Service Commission;
     notwithstanding anything contained in the Rules and dispense with or
     relax the requirement the conditions of service and extend the necessary
     benefit as Is expedient so as to relieve hardship and to cause just and
     equitable results. The word "may" consult the Commission has been
     used in the context of discharge of statutory duty. The Governor is
     obligated to consult the Public Service Commission. Therefore, the            c
     word "may" must he construed as to mean "shall" and it is mandatory
     on the part of the Governor io consult the Public Service Commission
     before exempting or relaxing the operation of rule regarding conditions
     of the service of a member to relieve him from undue hardship and to
     cause just and-equitable results.                                             D

           5.3 There is a distinction heteen "rules of recruitment" and
     ''conditions of service''. The rules relating to recruitment to the service
     either under rule 5(a) or 5(b) or the manner of recruitment to service as
     per Appendix 'A' or 'B' are basic rules of recruitment to service. They
     are not subject to rule 27.                                                   E

           Narendra Chadha v. Union of India & Ors., [1986) 1 S.C.R. 211;
     referred to.

           CIVIL APPELLATE JURISDICTION: Writ Petition Nos. 6261
     86 & 660/87.                                                                  F

           (Under Article 32 of the Constitution of India).

           Gobinda Mukhoty, R.K. Garg, and D.K. Garg for the Petitioners.

           Prithviraj, P.P. Rao, Sr. Advocates, Ms. S. Dikshit, Ms. Sushma         G
     Suri, Prashant Bhusnan and Madan Lokur, for the Respondents.

          Shashi Kant, A.K. Jain and Sudhershan Singh (NP) Respondents
     in person.
·I
           The Judgment of the Court was delivered by.                             H
    578         SUPREME COURT REPORTS               [1990] Supp. 2 S.C.R.

          K. RAMASWAMY, Jf. The vexed question of inter se seniority
A
    between promotees and direct recruits has once again been brought to
    the force at the behest of the petitioners in these writ petitions filed
    under Art. 32 and respondents Nos. 4 to 99 in the first writ petition,
    for short 'promotees' and the respondents Nos. JOO to 139 in the first
    writ petition, for short 'direct recruits' as Asstt. Conservators of
B   Forest. The Governor of U .P. exercising the power under the proviso
    to Art. 309 of the Constitution issued the U.P. Forest Services Rules,
    1952, for short 'the rules' which became effective from January 2,
    1952. The promotees are confirmed Forest Range Officers in U.P.
    Forest Subordinate Service which is a feeder source for recruitment by
    promotion under Rule S(b) of the rules as Asstt. Conservator of
    Forest. Rule 4 constitutes and fixes the cadre strength of Chief Con-
c   servator of Forest; Conservator of Forest; Deputy Conservator of
    Forest and Asst!. Conservator of Forest. By fiction of law in Note to
    Rule 3(h) all the members of the old provincial Forest Service became
    members of the initially constituted service. It would appear that after
    amalgamation no recruitment under rule 5(a) of the posts of Assistant
D   Conservator of Forest was immediately made. In May; 1966, the selec-
    tion to the posts of Asst. Conservator of Forest was made but was
    ultimately vacated by this Court in A.K. Kraipak & Ors. etc. v. Union
    of India & Ors., [1970] 1 SCR 457 and the connected matters. The
    process of recruitment was again started in the year 1972 but was
    stayed by the High Court of Allahabad in W.P. No. 119 of 1972. The
E   list of the recruits of 1966 could not thus be finalised till 1975. With
    effect from May 1, 1975, the ratio of 25% recruitment of promotees in
    Rule 6 was increased to 33 I/3rd per cent. The Governor also issued
    "promotion by selection in consultation with the Public Service Com-
    mission Procedure Rules, 1970". In the meanwhile the number of
    posts of Asstt. Conservator, Forest was determined. As there was no
F   direct recruitment under Rule 5(a) till 1974 and even thereafter, pro-
    motees were appointed, admittedly on ad-hoc basis, between March
    13, 1974 and November 21, 1981, subject to direct recruitment and
    were posted as Asstt. Conservator, Forest. Thus they are continuing
    temporarily on ad-hoc basis though for varying periods of 5 to 12
    years. In the meanwhile, the direct recruits under mle 5(), had under-
G   gone two years training in the Indian Forest College, Dehradun and
    obtained diploma therefrom. In 1976, they were appointed on proba-
    tion to substantive vacancies. When their claim was ripe for considera-
    tion as Deputy Conservators of Forest in the Indian Fore~t Service, the
    petitioners claiming seniority over them filed the writ petitions seeking
                                                                                t--'
    inter alia for the issue of (a) a writ of mandamus to declare Rule 3(h)
H   and Rule 24 of the Rules relating to rcconing of seniority from the date
                     K.C JOSHl'v. U.0.L [K. RAMASWAMY, J.)                   579
·'
       of the substantive appointment as illegal and violative of Arts. 14 and
       16 of the Constitution of India; (b) to declare Rule 4 of the Indian
                                                                                     A
       Forest Service (Recruitment) Rules, 1966 and Regulation 5 of Indian
       Forest Service (Appointment by promotion), Regulation 1966 as vio-
     . lative of Arts. 14 and 16 etc., the details of which are not material since
       the petitioners have given up their challenge before us. The only plea
     . put forth is that the promotees should be declared to have been regu-         B
       larly appointed from the respective dates of their initial promotion as
      Asst!. Conservators with all consequential benefits. The contention of
       M/s. Mukhoty and Garg, their learned Senior counsel is that though
       the promotees were appointed on ad-hoc basis due to non-availability
       of direct recruits to the vacant posts of Asst!. Conservator of Forest,
       they are continuing for well over 5 to 12 years discharging the same
       duties, drawing the same scale of pay without any reversion. The posts        c
       held by the petitioners are not fortuitous, nor stop gap. The entire
       continuous length of service from the dates of their initial promotion
      should be counted towards their seniority. They strongly relied on
       Narendra Chadha v. Union of India, [1986] 1 SCR 211; Baleshwardas
       v. State of U. P., [1981] 1 SCR 449; N, K. Chauhan v. State of Gujarat,       D
       [ 1977] 1 SCR 1037 and proposition 'B' in paragraph 47 in Direct
       Recruits Class II Engineering Officers' Association v. State of
       Maharashtra, 4(1990] 2 SCC 715, page 47, Prop. 'B' for short 'Direct
       Recruits' case' in their support.

           Shri P.P. Rao, learned counsel for the direct recruits contended E
     that the appointment of th~ promotees admittedly being ad-hoc, they
     had not have any right to the posts. Their appointments, not being on
     the basis of merit as per rules, did not confer any right to posts. Their
     seniority has to be counted only from the dates of substantive appoint-
     ment. The service rendered from the dates of initial promotion till date
     of the substantive appointment should be treated as fortuitous. The F
     delay to make direct recruitment had been occasioned only on account
     of the pendency of the proceedings right from Kraipak's case in
     Allahabad High Court till the present group of writ petitions. Since
     promotees were appointed in excess.of the preseiibed quota in Rule 6,.
     they should be pushed down to the vacangi~s that had arisen in each
     year above the direct recruits as per the ratio as the promotees are not G
     entitled to claim seniority from the initial dates of their respective
     promotions. In support thereof he relied on proposition 'A' of
     paragraph 47 of the Direct Recruits' case and the ratio in Masoor
     Akhtar Khan & Ors. v. State of Madhya Pradesh & Ors., IT 1990 3 SC
     295. He also contended that the power of relaxation in Rule 27 is only
                                                       ,
     in respect of conditions of service and not relating to recruitment or
    580         SUPREME COURT REPORTS               [1990) Supp. 2 S.C.R.

    promotion. He placed reliance on A.J. Patel & Ors. v. State of Gujarat
A
    & Ors., AIR 1965 Guj. 23 (F.B.)

          Since the rules are legislative in character, they must harmoni-
    ously be interpreted as a connnected whole· giving life and force to
    each word, phrase and rule and no part thereof should be rendered
B   nugatory or a surplusage. Resort to iron out the creases could be had
    only when the construction of the relevant rule, phrase or word would
    lead to unintended absurd results. To accord just solution to this, we
    have set out only the relevant rules. Rule 3(h) of the Rules defines
    "Members of the Service" to man "a person appointed in a substantive
    capacity under provisions of these rules" or of rules or orders in force
    previous to the introduction of these rules, "to a post in the cadre of
c   the service". The rules shall not apply to the members of the Indian
    Forest Service. Rule 3(e) defines direct recruitment, which means
    recruitment in the manner prescribed in clause (a) of Rule 5 of these
    Rules. Rule 5 in Part III indicates sources and methods of recruitment
    as Asstt. Conservator of Forest service shall be made-
D
           (a) by direct recruitment of candidates who having been
           selected in the manner prescribed in Appendix 'A' for admis-
           sion to the Superior Forest Service Course of the Indian Forest
           College, Debra Dun, have obtained a Diploma after having
           completed successfully a training of two years at the said
E          college;

           (b) by promotion in the manner prescribed in Appendix 'B' to
               these rules of all permanent Forest Rangers of the Sub-
               ordinate Forest Service who-

               (i) hold a certificate of the Forest Rangers' College, Debra
               Dun and

               (ii) have put in eight years' services as Forest Ranger
               including continuous officiating and temporary service.

G         Rule 6 provided that not more than 25 per cent of the total
    number of posts in the service shall be filled up by promotion and the
    ratio was enhanced from 1/4 to 1/3 w.e.f. January 1, 1975. On amend-
    ment, the Rule read thus:

                "Number of appointments to be made-The Governor                •
H               shall decide the number of vacancies to be filled from each
                    K.C JOSHI v. U.0.1. [K. RAMASWAMY, J.]              581

                of the two sources specified in rule 5 provided that not
                more than 33 1/3 per cent of the total number of posts in      A
                the Service shall be filled from the source mentioned in
                clause (b) of rule 5. In deciding the number of vacancies to
                be filled from each of the two sources each year, regard
                shall be paid to the relative number of promoted and
                directly recruited officers in the cadre of the Service. The   B
                above percentage will be observed if suitable officers are
                available for promotion to that extent".

           Part V provides the procedure for appointment, probation and
     confirmation.

            Rule 12 prescribes the procedure for appointment. A person         C
     finally selected for appointment to the Service in the manner pres-
     cribed in the foregoing rules shall be appointed by the Governor
     thereto (unless he subsequently becomes disqualified for appoint-
     ment) on the occurrence of a substantive vacancy. The order in which
     such appointments made shall be:-                                         o
           (a) in the case of candidates appointed by recruitment, as indi-
           cated in the fourth proviso to Rule 24; and

           (b) in the case of candidates recruited by promotion, according
           to their seniority in the Subordinate Forest Service.               E

           Sub-Rules (2) and (3) are not necessary, hence omitted.

            Rule 14 prescribes the period of probation, discharge, etc. All
      appointments to the service in a substantive vacancy shall be made on
    · probation. The period of probation shall be two years and will count     'F
      from the date of taking over charge of appointment, provided that the
      Governor may extend the period of probation. Any such extension
      shall specify the date upto which the extension is granted. Sub-rules
      (2) and (3) are not necessary.

           Rule 15 prescribes passing of departmental examination pres-        G
     cribed in that regard as a condition for confirmation.

           Rule 16 empowers confirmation thus: (a) A person on probation
     shall not be confirmed in his appointment unless:

           (i) he has completed the prescribed period of probation;            ff



I
    58~         SUPREME COURT REPORTS                 [1990] Supp. 2 S.C.R.

          (ii) he has passed all the tests prescribed in Rule 15 or has been
A         exempted from passing such tests; and

          (iii) the Governor is satisfied that he is fit for confirmation in
          other respects.

B        Clause (b) of Rule 16 is not necessary for the purpose of its case,
    hence omitted.

          Rule 19 prescribes pay of the direct recruits during probation.
    Note to Rule 19 postulates the date of service of the direct recruits
    thus:

c          • \ The date of service of an officer under clause (a) to Rule 5
               s'hall begin from the day following the day on which· he
               obtained his diploma in Forestry 0f the Indian Forest
               College, Debra Dun, if such officer joins his appointment
               within ten days from the date of issue of the Diploma.
D
          Rule 24 adumbrates to fix seniority thus:

               The seniority of officers on their appointment to the
               Service "shall be determined according to the date of the
               order of their substantive appointment to the Service."
E
               Provided that if the order appointment of two or more
               candidates bears the same date, their seniority inter se shall
               be determined according to the order in which their
               appointment has been notified;

F              Proviso 2 and 3 are not relevant hence omitted.

               Proviso 4-Provided further that relative seniority of
               members of the Service who are appointed by direct re,
               cruitment shall be in accordance, with the order of merit in
               which they are placed on passing out Of the Indian Forest
G              College at Debra Dun, or any other institution at which
               arrangements are made for training.

               Proviso 5-Provided further that candidates by direct
               recruitment and who are recruited by promotion in the
               same year, the latter shall be placed above the former in
H              the seniority list.
               ,_.
~                  K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.]               583

           Appendix 'A' and 'B' are integral parts of Rule 5. Appendix 'A'
                                                                                A
     relates to the direct recniits and Appendix 'B' relates to the pro-
     motees. Appendix 'A' enumerates the procedure to notify the vacan-
     cies for direct recruitment to the post of Assistant Conservator Forest
     by the Public Service Commission, Uttar Pradesh nd the manner of
     Selection,                                                •
                                                                                B
           Para 16 postulates thar on obtaining Diploma in Forestry at the
     end two years' Course at the Debra Dun Forest Training College, the
     candidate will be appointed as Assistant Conservator of Forest.
     Appendix 'B' prescribes the procedure "for recruitment by promotion
     in terms of Rule 5(b)". Paragraph 1 says thus:

                 "For the purpose of recruitment under clause (b) of Rule 5,    c
                 a selection strictly on merit shall be made from amongst
                 Forest Rangers eligible under the rules for prvmotion."

     Then the procedure was prescribed for selecting the candidates by
     promotion, the deai!s of which are not material. Para 4 postulates that D
     the "names shall be arranged in the.order of merit and not in accor-
     dance with seniority". Pargraph 5 enjoins that the Chief Conservator
     of Forest shall also draw up a seupplementary list containing names of
     officials whom he considers suitable for "officiating" or "temporary
     appointments" during the course of the year keeping in view the possi-
     ble approximate vacancies and the candidates recommended by him to E
     be suitable. shall be approximately eqiialto the vacancies expected to
     occur during the course of the year.

           Paragraph 7 prescribes the procedure for considering the claims
     of the Forest Rangers. The list of eligible candidates drawn by the
     Chief Conservator of Forest would be forwarded to the Public· Service F
     Commission. The Secretary to the Government in Forest Department
     in consultation with the Commission shall fix a date and call those
     candidates for intervie",. by a Selection Committee consisting of a rep-
     resentative of the Public Service Commission, who presides over it,
     the Secretary to the Govt. in the Forest Department and the Chief
     Conservator of Forests or any other superior officer of the Depart- G
     ment whom the Government nominates. The Public Service Commis-
     sion shall draw a list of candidates in order of merit and forward it to
     the State Government. The Governor shall appoint the Forest Range
     Officers as per the list as Asstt. Conservators of Forest on probation.
-~
     On passing the prescribed tests within.two years or extended penod, if
     any, of probation or on exemption, the Governor shall consider the H
     584         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

     suitability for confirmation and to pass an order confirming the pro-
A    motee in a substantive capacity to a substantive vacancy.

           A close readin~ of the fasciculus of rules clearly posits that
     recruitment as Asstt. Conservator of Forest shall be from two sources,
     namely, by !lirect recruitment and by promotion of permanent Forest
B Rangers of the Subordinate Forest Service. Qualifications have been
     provided for recruitment. The direct recruit, on selection by the Public
     Service Commission i; required to undergo training for two years in
     the College as a part of the selection and on obtaining Diploma, the
     Governor is ao appoint him to the substantive post of Asstt. Con-
    servator of Forest on probation. The service of the direct recruits is to
     be counted from the date of discharging the duties of the post and on
c successful completion of the probation within two years or extended
     period and passing the tests and on confirmation thereof by the Gover-
     nor, he becomes a member of the service in substantive capacity.
    Similarly the promotees shall be recruited in accordance with Rule
  · 5(b) and the procedure prescribed in Appendix 'B'. The Chief Con-
D servator of Forest would draw up the list of permanent Forest Range
    Officers eligible for pomotion strictiy on the basis of merit. The Com-
    mitee headed by the member of the Public Service Commission would
    interview them and prepare the list of the selected candidates on the
    basis of merit and ability, which would be forwarded to the Govern-
    ment. On receipt thereof the Governor would appoint the Forest
E Range Officers as Asstt. Conservator of Forest on probation in terms
    of the ratio prescribed in Rule 6. The selection shall be based on merit
    and ability. Ahe seniority of Forest Rangers inter se is to be considered
    only where the merit and ability as Forest Rangers are approximately
    equal. Thus even the junior most meritorious Forest Range Officer
    would steal a march over his seniors and would earn his seniority as
F Asstt. Conservator of Forest. The promote t shall also be on probation
    for a period of two years and shall also have to pass the prescribed tests
    unless exempted. On successful completion and the Governor after
    satisfying himself that the appointee is also otherwise fit to be con-
    firmed, makes an order. Then only the promotee becomes a regular
    member of the service in a substantive capacity.
G
       , The heart of the controversy lies in the question as to when a
    person is appointed to a post in the service in a substantive capacity
    within the meaning of rule 3(h) read with Rules 5 and 24 of the Rules.
    Under Rule 5 read with Rule 3(h) a member of the service means a
    person, be it direct recruit under rule S(a) or promotee under Rule
H S(b ), appointed in a substantive capacity to the service as per the
               K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.]                 585

provisions of the rules. In order to become a member of the service
he/they must satisfy two conditions, namely, the appointment must be          A
in substantive capacity and the appointment has to be to the post in the
service according to rules and within the quota to a substantive
vacancy. There exists marked distinction between appointment in a
substantive capacity and appointment to the substantive post. There-
fore, the membership to the service must be preceded by an order of           B
appointment to the post validly made by the Governor. Then only
he/they become member/members of the service. Any other construc-
tion would be violation of the rules.

      The nai rative of facts and attendant circumstances would indi-
cate that the Government at no point of time abandoned direct recruit- .
ment under Rule 5(a), nor omitted to fix inter se seniority. No blame in C
this regard should lie at the doors of the Govt. as due to recourse to
judicial process this situation crept up. It is not the ca~e of the pro-
motees that Government held out any promise that the promotees
would be regularised from the respective dates of promotion. On the
other hand the Government's positive act of adjusting the promotees D
in excess of the quota under Ruic 6 in the vacancies that arose in the
succeeding years belie such a situation.

      From the above back-ground two questions would emerge: (i) as
to when promotees become members of the cadre of Asstt. Conser-
vators in a substantive capacity in accordance with the rules and (ii)        E
whether the entire length of services from the date of initial appoint-
ments should be counted towards their seniority. The pre-requisite of
the right to inclusion in a common list ofseniority is that all those who
claim that right must broadly bear the same characteristics. Fortuitous
circumstances of their holding the grade post carrying the same desig·
nation or scale of pay o,r discharging the same duty would not justfy the     p
conclusion that they belong to the same cadre. Due to exigencies of
service temporary promotions against substantive vacancies were
made. It ia undoubted that preceding their promotion, an ad-hoc Com-
mittee had considered the cases of the promotees. Admittedly senio-
rity subject to rejection of unfit was the criteria, followed in the selec-
tion. The selection was therefore, in defiance of and dehors Ruic S(b)        G
read with Appendix 'B'.

     In a democracy governed by Rule of Law, it is necessary for the
appropriate governance of the country that the political executive
should hve the support of an efficient bureauracy. Our Constitution
enjoins upon the execl!tive and charges the legislature to lay down the       H
    586         SUPREME COURT REPORTS                 [1990] Supp. 2 S.C.R.       ·'
    policy of administration in the light of the directive principles. The
A
    executive should implement them to establish the contemplated
    egalitarian social order envisaged in the preamble of the Constitution.

           It is seen that the appointments of the promotees were made in
    batches year-wise. The rule postulates that appointment shall be
B   strictly as per merit after interview arranged in order by the Public
    Service Commission. In the same year when the appointments are
    made to the substantive vacancies from both the sources, the pro-
    motees shall rank senior to the direct recruits in accordance with the
    quota prescribed under Rule 6. The rules provide the power to appoint
    Forest Rangers from Subordinate Service, due to administrative
    exigencies to officiate or to act temporarily as Asstt. Conservators of
c   Forest. The rule itself, thus, recognises the distinction between sub-
    stantive appointment and temporary /officiating appointment. The
    procedure to prepare the list to man the officiating or temporary
    vacancies is on the basis of seniority subject to rejection of the unfit.
    The question of considering relative merit and ability of the promotees
D   inter se, then would not arise. Thereby, it is clear that the list prepared
    by the Chief Conservator of Forest for appointment of the Forest
    Rangers to officiate in the posts of Assistant Conservator of Forest on
    ad-hoc or temporary basis is only fortuitous due to non-availability of
    the direct recruits as stop gap arrangement. Employees appointed
    purely on ad-hoc or officiating basis due to administrative exigencies,
E   even though con.tinued for a long spell, do not become the members o'
    the service unless the Governor appoints them in accordance with the
    rules and so they are not entitled to count the entire length of their
    continuous officiating or fortuitous service towards their seniority.

          It is notorious that confirmation of an employee in a substantive
F   post would take place long years after the retirement. An employee is
    entitled to be considered for promotion on regular basis to a higher
    post if he/she is an approved probationer in the substantive lower post.
    An officer appointed by promotion in accordance with Rules and
    within quota and on declaration of probation is entitled to reckon his
    seniority from the date of promotion and the entire length of service,
G   though initially temporary, shall be counted for seniority. Ad-hoc or
    fortuitous appointmnts on a temporary or stop gap basis cannot be
    taken into account for the purpose of seniority, even if the appQintee
    was subsequently qualified to hold the post on a regular basis. To give
    benefit of such service would be contrary to equality enshrined in Art.       ~




H
    14 read with Art 16( I) of the Constitution as unequals would be
    treated as equals. When promotion is out side the quota, the seniority            -·
              K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.l                587

would be reckoned from the date of the vacancy within the quota,             A
rendering the previous service fortuitous. The previous promotion
would be regular only from the date of the vacancy within the quota
and seniority shall be counted from that date and not from tlie date of
his earlier promotion or sub-sequent confirmation. In order to do
justice to the promotees it would not be proper to do injustice to the
direct recruits. The rule of quota being a statutory one it must be
                                                                             B
strictly implemented and it is impermissible for the authorities con-
cerned to deviate from the rule due to administrative exigencies or
expediency. The result of pushing down the promotees appointed in
excess of the quota may work out hardship but it is unavoidable and
any construction otherwise would be illegal, nullifying the force of
statutory rules and would .offend Arts. 14 and 16(1). Therefore, the         c
rules must be carefully applied in such a manner as not to violate the
rules or equality assured under Art. 14 of the Constitution. This Court
interpreted that equity is an integral part of Art. 14. So every attempt
would be made to minimise, as far as possible, inequity, Disparity is
inherent in the system of working out integration of the employees
drawn from different sources, who have legitmate aspiration to reach         D
higher echolans of service. A feeling of hardship to one, or heart
burning to either would be avoided. At the same time equality is
accorded to all the employees.

      In Direct Recruits' case the Constitution Bench of this Court in
which one of us (K. Ramaswamy, J.) was a member, in Proposition 'A'          E
& 'B' in paragraph 47 at page 475 stated:

            "(A) Once an incumbent is appointed to a post according
            to rule, his seniority has to'be counted from the date of his
            appointment and not according to the date of his confir-
            mation.                                                          F

            The corollary of the above rule is that where the initial
            appointment is only ad-hoc and not according to rules and
            made as stop gap arrangement, the officiation in such post
            cannot be taken into account for considering the seniority.
                                                                             G
            (B) If the initial appointment is not made by following the
            procedure laid down by the rules but the appointee con-
            tinues in the post un-interruptedly'till the regularisation of
            his service in accordance with the rules, the period of
            officiating service will be counted".
                                                                             H
     588        SUPREME COURT REPORTS               (1990) Supp. 2 S.C.R.
                                                                              .....
A
  M/s. Mukhoty and Garg repeatedly asked us to apply the ratio in the
  cases of Narendra Chadha, Baleshwar Das the Chauhan contending
  that the promotees were appointed to the same post; are discharging
  the same duties; drawing the same salary, therefore, they should be
  deemed to be given promotion from their initial dates of appointment.
  We express out inability to travel beyond the ratio in Direct Recruits'
B case. While reiterating hisistence upon adherence to the rule that
  seniority between direct mcruits and the promotees has to be from the
  respective dates of appointment, this Court noticed that in certain
  cases, Government by deliberate disregard of the rules promotions
  were made and allowed the promotees to continue for well over 15 to
  20 years without reversion and thereafter seniority i5 sought to be fixed
  from the date of ad-hoc appointment. In order to obvitate unjust and
c inequitious   results, this Court was constrained to evolve "rule of
  deemed relaxation of the relevant rules" and directed to regularise the
  services giving the entire length of temporary service from the date of
  initial appointment for seniority. To lay down binding precedent the
  cases were referred to a Constitution Bench. ln the Direct Recruits'
D case, this Court has laid down clear propositions of general applica·
  tions in items A to K. Therefore, to keep the law cfoar and certain and
  to avoid any slant, we are of the considered view that it is not expc·
  dient to hark back into the past precedents and we prefer to adhere to
  the ratio laid down in the Direct Recruits' case.

E        As stated, the counsel for the promotecH placed strong reliance
  on proposition 'B' while the counsel for the Direct Recruits relied on
  proposition 'A'. The controversy is as to which of the propositions
  would apply to the facts of this case. The proposition 'A' lays down
  that once an incumbent is appointed to a post according to rules, his
  seniority has to be counted from the date of his appointment and ·not
F according to the date of his confirmation. The latter part thereof
  amplifies that where the initial appointment is only ad-hoc and not
  according to rules and is made as stop-gap arrangement, the period of
  officiation in such post cannot be taken into account for reckoning
  seniority. The quintessence. of the propositions in that the appoint·
  ment to a post must be according to rules and not by way of ad-hoc or
G stop-gap arrangement made due to administrative exigencies. If the
  initial appointment thus made was dehors the rules, the entire length
  of such service cannot be counted for seniority. in other words the
  appointee would become a member of the service in the substantive
  capacity from the date of his appointment only if the appointment was
  made according to rules and seniority would be counted only from that
H date. Propositions 'A' and 'B' cover different aspects of the situation.
                                                                              -
               K.C. JOSHJ v. U.0.1. {K. RAMASWAMY, J.]              589

One must discern the difference critically. Proposition 'B' must, there-
fore, be read alongwith Para 13 of the judgment wherein the ratic. deci
                                                                           A
dendi of Narendra Chadha was held to have eonsiderable force. The
latter postulated that if the initial appointment 10 a substantive post or
vacancy was made deliberatly, in disregard of the rule and allowed the
incumbent to continue on the post for well over 15 to 20 years without
reversion and till the date of regularisation of the service in accordance
with the rules, the period of officiating service has to be counted
towards· seniority. This Court in Narendra Chadha's case was cogni-
zant of the fact that the rules empower the Government to. relax the
rule of appointment.. Without reading paragraph 13 and Proposition
'B' and Narendra Chadha's ratio together the true import of the pr-0-
position would not be appreciated. We would deal with the exercise of
power of relaxing the rule later. After giving anxious consideration,       c
we are of the view that the latter half of Proposition 'A' would apply to_
the facts of the case and the rule laid down in that half is to be fol- ·
lowed. If the concerned rules provide the procedure to fix inter se
seniority between direct reeruits and promotees, the seniority has to
be determined in that manner.                                              D
      Realising that applicability of Proposition 'B' to the tacts would
run into rough weather the counsel for the promotees attempted to
anchor it by reiterating that so on date the Public Service Commission
found the promotees eligible for confirmation as per rules, the entire
length of service would be counted for their seniority. We express our      E
inability to accede to the contention. It is seen that appointment of the
promotees as Assistant Conservators of Forest was not in accordance
with rule 5(b) read with appendix 'B' of the rules. Admittedly the
promotees were on ad-hoc basis pending direct recruitment and are in
excess of the quota prescribed under rule 6. By no stretch of imagina-
tion it could be said that the promotions were made to a substantive        F
post in accordance with the rules. Therefore, the promotees do_ not
hold the post in substantive capacity.

       Undoubtedly when there w;is dearth of direct recruits the pro-
niotees discharged the duties ranging between 5 to 12 years prior to
filing of the writ petitions. The promotees generally may get one or        G
two chances of promotion to cadre posts in higher echolans, of the
Indian Forest Service. Reckoning continuous officiation of ad-hoc
promotion would enable the less privileged to excel their latent
capabilities in the cadre post.

      In an appropriate case if the court finds that wanton or deliberate   H
    590         SUPREME COURT REPORTS                [ 1990] Supp. 2 S.C.R.

A   deviation from the rules was made by the implementing authority the
    court should call upon them to explain the reasons therefor and in the
    absence of proper explanation forthcoming ca:;tigate the authority and
    pass strictures condemning the actions which would discipline the
    authorities to adhere to the rules. Undue latitude and acquiescence
B   thereto would not only defeat the due enforcement of the rules but
    also create disorder and frustration among the members of the
    services. We have also kept at the back of our minds that the interpre-
    tation we are to give to the rules would have fat reaching effect, not
    only for similar services in other states, but also to Indian Forest
    Service for which the State Services are the feeder source.

c         In Massor Akhtar Khan's case & Ors. v. State of Madhya Pradesh
    & Ors., JT. 1990 3 SC 295 a Division Bench considered, after Direct
    Recruits case, the question whether the subsequent selection would
    entitle an employee to the benefits of the entire temporary service for
    seniority. Sawant, J. speaking for the court held (with which we
D   respectfully agree) that when the rules of advertisements and the
    orders of appointments indicate that the appointment is only for a
    limited period, subject to recruitment by Public Service Commission,
    the appointments are only emergency arrangement pending regular
    selection by the Public Service Commission. Therefore, the entire
    length of service cannot be counted for seniority.
E
            It is next contended that the promotees must be deemed to have
    been appointed in relaxation of the rules of recruitment under rule 27
    of tlj.e Rules by the Governor and placed strong reliance on the ratio in
    Narendra Chadha's case. Rule 27 reads thus:

F               "Where the Governor is satisfied that the operation of any
                rule regarding 'the conditions of service' of the members of
                the service causes undue hardship in any particular case, he
                may, in consultation with the Commission, notwithstand-
                ing anything contained in the rules applicable to the case,
                by order dispense with or relax the requirements of that
G               rule to such extent and subject to such conditions as he may
                consider necessary for dealing with the case in a just and
                equitable manner".

          It is true that in Narendra Chadha's case this Court noticed that
    appointments by promotion were not made in accordance with the
H   rules and rule 16 of Indian E_conomic/lndian Statistics Service Rules,
                   K.C. JOSHI v. U.0.1. [K. RAMASWAMY, J.I               591

    1961 as was in force empoers the Govt. to relax "any provision of the       A
                              rules" to such an extent as (emphasis supplied)
    may be necessary to ensure satisfactory working or removing inequiti-
    ous results held that as the Government deliberately deviated from the
    rules and allowed the promotees to be in continuous service without
    reversion for well ever 15 to 20 years, the Government must be              B
    deemed to have relaxed the rules. While holding so at page 238 it was
    stated that:

                "We wish to make it clear that there is no question of any
                rotation system being applied under the Rules, as they exist
                now. All appointments shall be made hereafter in accor-
                dance with the Rules and the seniority of all officers to be    c
                appointed hereafter shall be governed by rule 9-C of the
'               Rules".

          In those peculiar circumstances this Court though recognised
    that appointment according to rules is a condition precedent, adopted
                                                                                D
    the rule of deemed relaxation and deemed promotion to the service in
    accordance with the rules. Rule 27 of the Rules gives power to the
    Governor that if he is satisfied that the operation of any rule regarding
    conditions of service of the members caused undue hardship in a
    particular case; he may consult the Public S~rvice Commission;
    notwithstanding anything contained in the Rules he may dispense with
                                                                                E
    or relax the requirement of the conditions of service and extend the
    necessary benefit as is expedient so as to relieve hardship and to cause
    just and equitable results. The word "may" consult the Commission
    has been used in the context of discharge of statutory duty. The Gover-
    nor is obligated to consult the Public Service Commission. Therefore,
    the word "may" must be construed to mean "shalJ" and it is mandat-
                                                                                F
    ory on the part of the Governor to consult the Public Service Coll)mis-
    sion before exempting or relaxing the operation of rule regardiJ.lg con-
    di_tions of the service of a member to relieve him from undue hardship
    and to cause just and equitable results. There is a distinction between
    "rules of recruitfi?.ent" and "~onditions of serviCe". To become a
    member of the service in a substantive capacity, appointment by the
                                                                                G
    Governor shall be preceded by selection of a direct recf)lit by the
    Public Service Commission; undergoing training in Forestry for _two
    years in the College and passing Diploma are conditions precedent. If
    the contention of the promotees that rules of recruitment are condi-
    tions of service is accepted, it would be open to the Governor to say
    that "I like the face of 'A' and I am satisfied that he is fit to be        H
    592         SUPREME COURT REPORTS                [1990) Supp. 2 S.C.R.

A   appointed; I dispense with the rules of recruitment and probation and
    appoint 'A' straight away to the service in a substantive capacity as
    Asstt. Conservator of Forest. Take another instance. Passing the pre-
    scribed tests during probation is a condition of service. Similarly effi-
    ciency bar stands as an impediment for the promotee's confirmation.
    On consideration of the record and on objective satisfaction, in an
B
    appropriate case, the Governor may relax those or other similar condi-
    tions. So passing the tests prescribed is a condition of service. There-
    fore, the rule which effects the right to confirmation or similar provi-
    sion is a condition of service. The rules relating to recruitment to the
    service either under rule 5(a) or 5(b) or the manner of recruitment to
    service as per Appendix 'A' or 'B' are basic rules of recruitment to
c   service. Satisfaction of the Governor that the operation of the rules
    regarding the conditions of service would cause undue hardship in a
    particular case or cases and the need to relieve hardship and to cause
    just and equitable results is a pre-condition. Even otherwise the court
    cannot substitute its satisfaction for the satisfaction of the Governor in
    exercise of the power of deemed relaxation. In Narendra Chadha's
D   case the power to relax was wide enough to cover 'any rule' and there
    was no pre-condition of objective satisfaction by the Governor. We
    hold that rule 5(a) and (b) and Appendix 'A' and 'B' are basic rules of
    recruitment and would not be subject to Rule 27.

           Accordingly we have no hesitation to held Ui.at the promotees
E   have admittedly been appointed on'ad-hoc basis as a stop-gap arrange-
    ment, though· in substantive posts, and till the regular recruits are
    appointed in accordance with the rules. Their appointments are dehors
    the rules and untill they are appointed by the Governor according to
    rules, they do not become the members of the service in a substantive
    capacity. Continuous length of ad-hoc service from the date of initial
F   appointment cannot be counted towards seniority. The Governor shall
    have to make recruitment by promotion to substantive vacancies in the
    posts of Asst!. Conservator of Forest, if not already made, in accor:
    dance with rule S(b) read with Appendix 'B' and rule 6. Their seniority
    shall be counted only from the respective dates of appointment to the
    substantive posts in their quota under rule 6 as per the rules. The
G   direct recruits having been appointed in accordance with rule S(a) read
    with Appendix 'A', their seniority shall be counted from the date of
    their discharging the duties of the post of Asstt: Conservator of Forest
    and the seniority of the direct recruits also shall accordingly be fixed.
    The inter se seniority of the direct recruits and promotees shall be
    derermined in accordance with Rules 5, 6 and rule 24 in the light of the
H
                  K.C. JOSHI v. U.0.I. [K. RAMASWAMY, J.]            593

    law declared in the judgment. All the employee are entitled to all      A
    consequential benefits. _On account of the pendency· of judicial pro-
    ceedings, if any of the employees became barred be age for considera-
    tion for promotion to cadre posts, the appropriate Government would
    do well to suitably relax the rules and do justice to the eligible
    conditions.
                                                                            B
         The writ petitions are accordingly allowed but in the circums-
    tances parties are directed to bear their own costs.

    T.N.A.                                             Petitions allowed.




t




-