NARENDRA NATH PANDEY & ORS.versusSTATE OF U.P. & ORS.

                  NARENDRA NATH PANDEY & ORS.
A
                               v.
                      STATE OF U.P. & ORS.

                                 JULY 21, 1988

B    [RANGANATH MISRA AND MURARI MOHON DUTT, JJ.)

          Civil Services: Uttar Pradesh Non- Technical (class II) Services
    (Reservation of vacancies for demobilised officers) Rules 1973/U.P.
    Non-Technical (class II/Group B) Services (Appointment of Demo-
    bilised Officers) Rules, 1980-Rules 1, 3 and 6/Rule 5-Demobilised
C   Officers from armed forces recruited in Civil Service-Seriiority-
    Period bel:Ween demobilisation and recruitment ta Civil Service-
    Computation of.

         ·The appellants have been appointed in the U.P. Civil Service as
D   direct recruits on the basis of competitive examination held by the
    U_P. Service Commission. They are governed by the U.P. Civil Service
    (Execntive Branch) Rules, 1941. The respondents were recruited under
    the U.P. Non-Technical (Class-II) Services (Reservation of Vacancies
    for Demobilised Officers) Rules, 1973 and/or U.P. Non-Technical               .Ill
    (Class-II/Group 'B') Services (Appointment of Demobilised Officers)
E   Rules, 1980. They were either Emergency Commissioned Officers or
    Short Service Commissioned Officers of the armed forces. They were
    demobilised from the armed forces in or about 1968. In order to
    rehabilitate such persons who rendered services to the country during
    the operatiOn of the emergency when the nation's security was in peril        ,..
    doe to aggression, the 1973 Rules were framed under the proviso to
F   Art. 309 of the Constitution oflndia.

          In 1976, a seniority list was prepared showing the respondents as
    seniors to the appellants on the basis of their service in the armed forces
    and the gaps between their discharge and recruitment in civil service.
    Similar list was prepared in 1980 as well. Aggrieved by'this, the appel-
G   lants moved two writ petitions before the High Court challenging the
    validity of the 1973 Rules as also the 1980 Rules. The High Court held
    that these Rules were legal and valid and upheld the validity of the
    impugned seniority list. These two appeals by special leave are.against
    the High Court judgment.

H         On behalf of the appellants, it was contended that the High
                                        574
                               N.N. PANDEY v. STATE OF U.P.                      575

          Court's interpretation of Rule 6 of the 197J Rules relating to seniority
                                                                                        A
          and pay was in excess of the relief intended hJ..be granted by the rule. It
          was also urged that when a candidate who was in the armed forces
•)"
-.\
          joined civil service, the assumption· should be that he•had entered the
          civil service at the second opportunity of competing for the recruitment,
          but no other period including that between the discharge and recruit-
          ment would be taken into account for the purpose of computing his             B
          seniority.

                 The contention of the Respondents was that since only ten per cent
          of the vacancies were reserved for war service candidates, it was dif-
          ficult for thelD to get a chance within a reasonable time after their
~~        discharge from war service and it would be quite consistent with rules
 .,       of natural justice to take into account the interregnum between the date
                                                                                        c
='1
          of discharge and the date of recruitment in civil service.

                Allowing the appeals, this Court,

                HELD: 1.1. The High Court was right in holding that the 1973            D
          Rules as also the 1980 Rules are quite legal and valid. However, under
          Rule 6 of the 1973 Rules or Rule 5 of the 1980 Rules, only a reasonable
          period of three years for taking the examination and the time taken
          for recruitment or posting would be taken into consideration for the
          purpose of computing seniority and pay. [5820-E]
                                                                                        E
  ..            1.2. Under Rule 6 of the 1973 Rules, the recruitment of a war
          service candidate will be assumed to have been made in the year in
          which he had the second opportunity of competing for such recruit-
          ment, the first being on attaining the minimum age to compete. It does
          not provide for the period between demobilisation and recruitment of a
          war service candidate in the civil service. Nor does it forbid considera-     F
          lion of such period. It cannot, however, he denied that after the dis-
          charge from war service, there will be some lapse of time for the
          recruitment of a candidate in the Provincial Civil Service. There is a
          question of competing in the examination. Though Rule 6 does not pro-
      '   vide for any gap to be taken into consideration, it is apparent that some
  ~       reasonable period has to be allowed to a candidate to enable him to avail     G
          himself of the opportunity of appearing at the competitive examination
          for recruitment in the Provincial Civil Service. Competitive examina-
 t        lions are generally difficult and at least two years' time should be
  ~:.
          allowed to a candidate, after his discharge, for his preparation for the
          competitive examination and that will be his first opportunity. The
          second opportunity will arise in the next year, that is, in the third year    H
    576         SUPREME COURT REPORTS                 [1988] Supp. 1 S.C.R.
A
    of his discharge from the armed forces. In other words, he should be
    allowed three years for competing in the relevant examination for
    recruitment in the civil service. Apart from the three years, the period
    of time taken for recruitment or posting will also be taken into consi-
    deration for the purpose of computing the seniority of a war service
B   candidate. [580H; 581C-H]

          1.3. If, however, a candidate does not avail himself of the
    opportunity within three years of his discharge from war service or
    takes the examination but becomes unsuccessful, the period between his
    discharge and subsequent recruitment will not be taken into account for
    the purpose of computing the seniority. [582C]
c
           [This Court set aside the judgment of the High Court relating to
    the interpretation of Rule 6 of the 1973 Rules, quashed the seniority lists
    of 1976 and 1980, and directed the State of U.P. to prepare the seniority
    list within six months in the light of this judgment.] [582F-G I
D
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 973-
    74 of1985.

         From the Judgment and order dated 15.7.1983 of the Allahabad
    High Court in Writ Petition Nos. 3532 of 1979 & 357 of 1981.
E
         Dr. L.M. Singhvi, K.R. Nagaraja, R.S. Hegde and C. Mukho-
    padhyay for the Appellants.

         A.D. Singh, Mrs. S. Dikshit, A.K. Gupta, Raju Ramachandaran
    and B.S. Chauhan for the Respondents.
F
          Subhash Chandra, Respondent No. 34 in person.

          The Judgment of the Court was delivered by

        DUTT, J. These two appeals by special leave involve the
G interpretation of the Uttar Pradesh Non-Technical (Class-II) Services
  (Reservation of Vacancies for Demobilised Officers) Rules, 1973,
  hereinafter referred to as 'the 1973 Rules', and the Uttar Pradesh
  Noh-Technical (Class-II/Group 'B') Services (Appointment of
  Demobilised Officers) Rules, 1980, hereinafter referred to as 'the 1980
  Rules', relating to the s,eniority of the appellants vis-a-vis the private
H respondents.
               N.N. PANDEY v. STATE OF_U.P. (DUTT, J.)               577

      The appellants have all been appoinre.d in the Provincial Civil
                                                                            A
Service of the State of Uttar Pradesh as direct recruits on the basis of
competitive exmninations held by the Uttar Pradesh Public Service
Commission. The appointments of the appellants were made under the
U.P. Civil Service (Executive Branch) Rules, 1941 framed under
section 241(1)(b) of the Government of India Act, 1935., hereinafter
referred to as 'the Service Rules'.                                         B

      The respondents were recruited under the 1973 Rules and/or the
1980 Rules. The respondents were either Emergency Commissioned
Officers or the Short S_ervice Commissioned Officers of the armed
forces of the ·Union of India and were commissioned on or before
November 1, 1962 during the Inda-Chinese war. They were demobi-
lised from armed forces in or about 1968. These respondents, there-         c
fore, rendered services to the country during the operation of the
emergency when the nation's security was in peril due to external
aggression. In order to rehabilitate such persons and to ensnre them
that in civil life, after the cessation of emergency, they were not to
suffer for rendering services to the nation and with a view to putting      D
the respondents at par with other persons, the 1973 Rules were framed
by the Governor of U .P. in exercise of his powers under the proviso to
Article 309 of the Constitution of India.

       Rule 1(3) of the 1973 Rules provide that they shall remain in
force for a period of five years from the date of their commencement.       E
Rule 3, inter <ilia, provides for the reservation ·of ten per cent of the
permanent vacancies in all Non-Technical {Class-II) Services to be
filled substantively by direct recruitment through competitive exami-
nation in any year. Rule 6 relating to· seniority and pay, which is
important for the purpose Of these appeals, is extracted below:
                                                                            F
            "R.6. Seniority and pay-

                  (1) Seniority and pay of candidates appointed against
            the vacancies reserved under sub-rule (-1) of rule3, shall be
            determined on the assumption that they entered the servi&
            concerned at their second opportunity, of competing for         G
            recruitment, and they shall be assigned the same year of
            allotment as successful candidates of the relevant competi-
            tive examination:

                 Provided that any such candidate who had two
            opportunities before the date of his joining the training       H
     578         SUPREME COURT REPORTS               [1988] Supp. 1 S.C.R.

                 prior to his commission whether he actually availed any
                 such opportunity or not, shall be assigned the same year of
                 allotment as successful candidates of the first competitive
                 examination held after the said date.

                       Explanation-The year of a candidate's second
B                opportunity will be determined by the date of his birth in
                 relation to the prescribed minimum age for competing for
                 recruitment to the service.

                       (2) Seniority inter se of candidates who are appointed
                 against vacancies reserved under sub-rule (1) of rule 3 and
                 allotted to a particular year shall be determined according
c                to the merit list prepared by the Ayog on the basis of the
                 results of their performance at the examination.

                       (3) All candidates appointed against vacancies re-
                 served under sub-rule (1) of rule 3 and allotted to any
p                particular year shall rank below the candidates who were
                 successful at the competitive examination held for recruit-
                 ment to the service in that year.

                       (4) The pay of candidates appointed against vacan-
                 cies referred to in sub-rule (3) of rule 3 shall also be
iE               determined in the same manner as indicated in sub-rule (1)
                 of this rule but their seniority shall be determined in
                 accordance with the foregoing sub-rules only if and at the
                 point of time when they are appointed substantively against
                 permanent vacancies."

.F         For the purpose of seniority and pay, rule 6 takes into account
     the period of war service rendered by a candidate who, after his
     demobilisation from such service, successfully competes in the rele-
     vant examination which is in the present case, the Provincial Civil
     Service Examination. Under Rule. 6, when such a candidate is
     ·recruited after his successfully competing in the relevant examination,
·15 it will be assumed that he had entered service with retrospective effect
    from the year in which he had the second opportunity of talcing the
    relevant examination for his recruitment, which he could not take on
    account of his having joined the service of the armed forces of the
    Union oflndia.

R
1
           So far as the actual period rendered by the respondents in the
              N.N. PANDEY v. STATE OF U.P. [DUTT,' J.)              579

armed forces during the emergency is concerned, there is no dispute A
that such period shall be taken into consideration for the purpose of
computing the seniority and pay. The grievance of the appellants is
that although there were long gaps between the dates of demobilisa-
tion and the dates of recruitment of the respondents, the State of Uttar
Pradesh had, in computing the seniority of the respondents, taken into
consideration not only the period during which the respondents were B
in the services of the armed forces, but also such long gaps. It is
pointed out by the appellants that in the cases of one or two respon-
dents, the gaps were even of about 11 years and these long gaps had
been taken into account in computing their seniority. As a result of
such computation, the respondents after their appointments were
placed above the appellants, although the appellants were recruited to
the Provincial Civil Service under the Service Rules long before the c
respondents were recruited. If such gaps are excluded from considera-
tion, the appellants will be seniors to the respondents.

      It is also alleged by the appellants that several of the respon-
dents, after coming back from the army, joined various services, both      D
Government and private services, ·and had spent 3 to 10 years or more
in those services before they were recruited under the 1973 Rules or
1980Rules.                                     ·

      Jn 1976, a seniority list was prepared showing the respondents
seniors to the appellants on the basis of the period of their service in   E
the armed forces and the. gaps between their discharge and recruit-
ment. In 1980 also, a seniority list was prepared in like manner show-
ing the appellants as juniors to the respondents.

      Being aggrieved by the 1976 seniority list, the appellants moved
two writ petitions under Article 226 of the Constitution before the F
Allahabad High Court, inter alia, challenging the validity of the 1973
Rules and also 1980 Rules. The High Court overruled the contention
of the appellants that the 1973 Rules and 1980 Rules were invalid being
violative of Article 14 of the Constitution of India and held that both
these Rules were legal and valid. It, however, took the view that under
rule 6 of the 1973 Rules or rule 5 of 1980 Rules, which are verbatim the G
same, the period during which the respondents had no employment or
were employed elsewhere till recruitment in the Provincial Civil
Service after competing in the relevant examination, will be taken into
account alon'g with the period during which they were in the services of
the armed forces for the purpose of computing their seniority in the
Provincial Civil Service. Accordingly, the. High Court upheld the vali- H
    580         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

    dity of the impugned seniority list. Hence this appeal.
A
          It is urged by Dr. Singhvi, learned Counsel appearing on behalf
    of the appellants, that the interpretation given by the High Court of
    rule 6 of the 1973 Rules relating to seniority and pay is in excess of the
    relief intended to be granted by that rule. It is submitted that rule 6
B   was framed for the purpose of taking into consideration the period of
    service in the armed forces in computing the seniority of a candidate
    appointed in the Provincial Civil Service after competing in the
    relevant examination, so that he does not suffer because of joining the
    armed forces. Rule 6 does not provide for taking into consideration
    the gap between the date of demobilisation of a candidate and the date
    on which he is appointed in the Provincial Civil Service after compe-
c   ting in the relevant examination. If such gaps are also taken into consi-
    deration, it would be doing injustice to the appellants who have been
    appointed long before the respondents. Accordingly, Dr. Singhvi sub-
    mits that when a candidate who was in the armed forces of the Union
    joined the Provincial Civil Service after his discharge from the armed
D   forces, it would be assumed that he had entered the Provincial Civil
    Service at the second opportunity of competing for the recruitment,
    but no other period including that between the discharge and recruit-
    ment will be taken into account for the purpose of computing the
    seniority of such a candidate.

E        On the other hand, it is submitted by Mr. Anil Dev Singh and
    Mr. Gupta, learned Counsel for the respondents, and Mr. Subhash
    Chandra, respondent No. 34, appearing in person, that rule 6 does not
    prohibit, either expressly or by necessary implication, the taking into
    account of the period between demobilisation and recruitment in the
    Provincial Civil Service. It is submitted that not only the length of the
F   war service but also such gaps should be considered for the purpose of
    computation of seniority. They submit that as only ten per cent of the
    vacancies were reserved for war service candidates, it was difficult for     •
    such candidates to get a chance within a reasonable time after their
    discharge from war service and it would be quite consistent with rules
    of natural justice to take into account the interregnum between the date
G   of discharge and the date of recruitment.

          Rule 6 only provides that after the discharge of a candidate from
    the armed forces and his subsequent appointment in civil service on
    the basis of competitive examination, it will be assumed that he had
    joined the service at the second opportunity of competing for the
H   recruitment. The second opportunity has been explained in the Expla-
-~·.




                         N·.N. ·PANDEY vc STATE OF U.P. !DUTT, J.]              581

         nation to rule 6. It provides that the year of a candidate's second
                                                                                       A
         opportunity will be determined by the date of his birth in relation to
         the prescribed minimum age for competing for recruitment to the
         service. For example, if the minimum age for taking the competitive
         examination for recruitment is 21 years, the first opportunity of a
         candidate will be in the year he attains that age and the second
         opportunity will be in the next year, that.is, at the age of 22 years.        B
         Under rule 6, the recruitment of a war service candidate will be
         assumed to have been niade in the year in which he had the second
         opportunity of competing for such recruitment. In other words, the
         seniority"of.such a candidate will be computed on the basis that he had
         joined the civil service in the year of his second opportunity of compet-
         ing for the .recruitment.
                                                                                       c
              It is true that rule 6 does not provide for the period between
        demobilisation and recruitment of a war service candidate in the civil
        service. Nor does it forbid consideration of such period. It cannot,
        however, be denied that after the discharge from war service, there
        will be some lapse of time for the recruitment of a candidate in the           D
        Provincial Civil Service. Immediately after discharge, one cannot get
        himself recruited in the Provincial Civil Service. There is a question of
        competing in the examination. Rule 6 does not provide for any gap to
        be taken into consideration, yet it is apparent that some reasonable
'-"i
        period has to be allowed to a candidate so as to enable him to avail
        himself of the opportunity of appearing at the competitive examina-            E
        tion for his recruitment in the Provincial Civil. Service. It cannot be
        gainsaid that to. compete in the examination, a candidate has to make
        preparation for that. Competitive examinations are generally difficult
        and, in our opinion, at least two years' time should be allowed to a
        candidate, after his discharge, for his preparation .for the competitive
        examination and that will be his first opportunity. The second                 F
        opportunity will arise in the next year, that is, in the third year of his
        discharge from the armed forces. In other words, he should be allowed
        three years for competing in the relevant examination for recruitment
        in the civil service.

                Even after he becomes successful, he is not recruited immedia-         G
       ' tely. There is the question of availability of vacancies and posting. It is
         .common knowledge that some time is taken for posting. On a proper
          construction of rule 6, the period spent by a candidate for competing in
          tlie examination which, in our opinion, will not be more than three
         years, and the period of time· taken for his recruitment or posting will
         also be taken into consideration for the purpose of computing the             H
    582         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

A   seniority of a wanervice candidate. Thus, if a candidate is discharged
    in the year 1968, he shou.ld be given three years' time to avail himself
    of the opportunity of competing in the examination. Suppose, he is
    successful in the examinatfon held 'in 1971 and posted in 1973. In view
    of rule 6, he would be deemed to have entered service at the second
    opportunity of competing for recruitment and the entire period from
B
    the date of assumed entry in the service up to his recruitment in 1973
    shall be taken into account for the purpose of computing seniority and
    pay. If, however, a candidate does not avail himself of the opportunity
    within three years of his discharge from war service or takes the exami-
    nation but becomes unsuccessful, the period between his discharge
    and subsequent recruitment will not be taken into account for the
c   purpose of computing the seniority. Rule 6 should be given a reason-
    able interpretation. We do not find any reason to interpret rule 6 in a
    way which will be doing in justice to the appellants who have been
    recruited under the. Service rules after competing successfully in the
    examination.
D
          We agree with the High Court that the 1973 Rules as also the
    1980 Rules are quite legal and valid. We are, however, of the view that
    under rule 6 of the 1973 Rules or rule 5 of the 1980 Rules only a
    reasonable period, namely, the period of three years, required for
    taking the examination and the time taken for recruitment or posting,
    as discussed above, along with the period of war service, but no other
E   period, will be taken into consideration for the purpose of cdmputing
    the seniority and pay. The impugned seniority list prepared in 1976
    and also that prepared subsequently in the year 1980 cannot be
    sustained, as they have been prepared by taking into consideration the
    entire period between the discharge and the recruitment without any
    reservation for computing the seniority.
F
          For the reasons aforesaid, we set aside the judgment of the High
    Court relating to the interpretation of rule 6 of the 1973 Rules. The
    impugned seniority lists of 1976 and 1980 are also quashed. The Stat~
    of Uttar Pradesh is directed to prepare the seniority list in the light of
    the observations made hereinabove within a period of six months from
G   date.

           The appeals are allowed to the extent indicated above. There
    will, however, be no order as to costs in either of these appeals.

    G.N.                                                    Appeals allowed.