Holding

The impugned seniority rules are legal, valid, and not ultra vires Articles 14 and 16; the amendment act validly confers retrospective effect, and the classification of ECOs/SSCOs is reasonable.

Summary

The Union of India and several Emergency Commissioned Officers (ECOs) and Short Service Commissioned Officers (SSCOs) appealed against judgments of the Calcutta High Court and the Central Administrative Tribunal that had struck down rule 3(2)(d) of the Indian Forest Service (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub‑rule (3) of rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 as violative of Articles 14 and 16. The respondents, who were recruited to the Indian Forest Service and Indian Police Service from State Services, claimed that the retrospective allocation of an earlier year of allotment to the ECOs/SSCOs unfairly affected their seniority and promotion prospects. The Court examined whether the rules were ultra vires the All‑India Services Act, 1954, whether the retrospective effect was validated by the All‑India Services (Amendment) Act, 1975, and whether the classification of ECOs/SSCOs was reasonable. It held that the classification was based on an intelligible differentia, served the purpose of compensating officers for emergency service, and was not invidious. The amendment act validly conferred retrospective power, and sub‑section 1‑A did not render the rules invalid. Consequently, the impugned rules were declared legal and valid, and the appeals were allowed, setting aside the High Court and Tribunal decisions.

Issues considered

The validity of rule 3(2)(d) of the IFS (Regulation of Seniority) Rules, 1968 and clauses (c) and (d) of sub‑rule (3) of rule 3 of the IPS (Regulation of Seniority) Rules, 1954 under Articles 14 and 16 of the Constitution.
Whether the Central Government had authority to make those rules with retrospective effect under the All‑India Services Act, 1954.
The effect of the All‑India Services (Amendment) Act, 1975, particularly section 3 and sub‑section 1‑A, on the validity of the retrospective rules.
Whether the classification of ECOs and SSCOs for seniority purposes constitutes a reasonable classification within the meaning of Article 14.

Legislation cited

All India Services Acts. 3, s. 3(1‑A)
All-India Services (Amendment) Act, 1975s. 2, s. 3

Subjects

All‑India Servicesseniorityretrospective ruleArticles 14 and 16ECOSSCOclassificationAll‑India Services (Amendment) Act 1975rule validity

Judgment

UNION OF INDIA & ORS. ETC. ETC.
A
v.
DR. S. KRISHNA MURTHY & ORS. ETC. ETC.

SEPTEMBER 26, 1989

[MURARI MOHON DUTT ANDS. RATNAVEL B
PANDIAN, JJ.]

All India Services Act, 1954--Jndian Forest Service (Regulation
of Seniority) Rules, 1968-Rules 3(2)(d)-Whether ultra vires-Reser-
vation for ECO and SSCO and year of allotment fixation-Whether
legal and valid.
c
Indian Police Service (Regulation of Seniority) Rules, 1954--
J(J)(c) (d)-Whether ultra vires-ECO and SSCO-Reservation for
fixation of year of allotment-Whether legal and valid.

The grievance of the respondents who have been recruited to D
Indian Forest Service and the Indian Police Service is that although the
Emergency Commissioned Officers & Short Service Commissioned
Officers in Short ECOS & SSCOS respectively have been recruited
after the respondents yet their year of appointment has been fixed
earlier than the year of allotment of the respondents under rule 3(2)(d)
of the IFS (Regulation of Seniority) Rules, 1968 & Clauses (c) & (d) of E
sub-rule (3) of Rule 3 of LP.S. (Regulation of Seniority) Rules, 1954
which is retrospective in operation. The Tribunal struck down the rules
as ultra vies of Articles 14 & 16 of the Constitution. Both the High Court
and the Tribunal have taken the view that although Section 3 of the All
India Services (Amendment) Act, 1975 validates the impugned rules
purporting to have been made with retrospective effect, yet the F
impugned rules are invalid in as much as they prejudicially, affect the
interests of the respondents.

While allowing the appeals and disagreeing with High Court and
the Tribunal, this Court,
G
HELD: The Tribunal has struck down the impugned rules,
namely rule 3(2)(d) of the Indian Forest Service (Regulation of Senio-
rity) Rules, 1968 and clauses (c) and (d) of sub-rule (J) of Rule 3 of the
Indian Police Service (Regulation of Seniority) Rules, 1954 as ultra vires
cL Articles 14 and 16. Office Memorandum dated January 29, 1966 pro-
vides for the rehabilitation of the ECOS and SSCOs recruited since H
275
276 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

November 1, 1962 after their release from the Armed Forces. The
contents of the Memorandum are in the nature of executive instruc-
tions. [277D: 282B; 286B]
Although the impugned rules were not in existance in l 966 the
executive instructions as contained in the Office Memorandum confer-
red the same benefit as conferred by the impugned rules. In other
B
words, it is apparent that the executive instructions have now been
adopted as rules framed under the Act. [286E]
The Released Emergency Commissioned Officers and Short
Service Commissioned Officers (Reservation of Vacancies) Rules, 1967
framed by the President of India under the proviso to Article 309 and
..
clause (5) of Article 148 of the Constitution of India, contained similar
c provisions as to the seniority and pay of ECOS & SSC Os. [286F]

No invidious discrimination has been made between the ECOs &
SSC Os on the one hand and the respondents on the other, both as
regard the Indian Forest Service and Indian Police Service, as
D contended. [290E]

As soon as it is found that the ECOs and SSCOs have been clas-
sified into a distinct and separate class and that such classification is
reasonable, no objection can be taken to the year of allotment given to
them in accordance with the impugned rules. Disagreeing with the High
E Court and the Tribunal, this Court is of the view that no illegality has
been committed by the Government in framing the impugned rules with
retrospective effect. Held that the impugned rules are quite legal and
valid. [290G-H; 291A]

It is now a settled principle of law that if the statute under which a ·1
F rule is framed does not confer on the authority concerned the power to
make such a rule with retrospective effect, the authority will have no
power to frame any rule with retrospective effect. [280F]
A. Janaradhana v. Union of India, [1983] 2 SCR 936, referred to.

G
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4068-70 of 1989 etc. etc.
.
From the Judgment and Order dated 26.8.88 of the Central
Administrative Tribunal, Bangalore in Appln. Nos. 991-993 of 1988.

For the appearing parties:

F G. Ramaswamy, Additional Solicitor General, Anil Dev Singh,
U.0.J. v. S.K. MURTHY {DUTT, J.] 277

U.R. Lalit, C. V. Subba Rao, T.C. Sharma, Ms. A. Subhashini, C.S.
A
Vaidyanathan, S.R. Selia, S.R. Bhat, Mrs. V.D. Khanna, R.
Ramachandran, N.B. Bhat, Altaf Ahmed, and S.K. Bhattacharya.

The Judgment of the Court was delivered by
B
DUTT, J.These special leave petitions have been heard at length
and elaborate submissions have been made on behalf of the parties at
the preliminary hearing and, accordingly, we grant special leave in all
these matter and proceed to disp9se of the same on merits.

These appeals have been preferred by the Union of India and
some erstwhile Emergency Commissioned Officers (for short 'ECOs')
c
and Short Service Commissioned Officers (for short 'SSCOs') and
directed either against the judgment of the learned Single Judge of the
Calcutta High Court or against the judgment of the Central
Administrative Tribunal, Bangalore. The Tribunal has struck down
the impugned rules, namely, rule 3(2)(d) of the Indian Forest Service D
(Regulation of Seniority) Rules, 1968, hereinafter referred to as 'IFS
(Regulation of Seniority) Rules, 1968', and clauses (c) and (d) of
sub-rule (3) of rule 3 of the Indian Police Service (Regulation of
Seniority) Rules, 1954, hereinafter referred to as .'JPS (Regulation of
Seniority) Rules, 1954', as ultra vires Articles 14 and 16 of the Con-
stitution of India and has directed the Government of India to assign E
fresh years of allotment to the ECOs and SSCOs, who were some of
the respondents before the Tribunal.

Before the Calcutta High Court, rule 3(2)(d) of the IPS (Regula-
tion of Seniority) Rules, 1954 was involved and the High Court on a
constructio·n of that rule allowed the writ petition of the respondents F
and set aside the impugned order relating to the year of allotment of
ECOs and SSCOs. .

The period between 1.11.1962 and 10.1.1968 is marked by three
events, namely, Indo-Chinese War followed by lndo-Pakistan War
and the proclamation of emergency. These EC Os and SSCOs volun- G
tarily entered the Armed Forces of the Union of India at a time. when
the security of the nation was in peril due to external aggression. As
they were engaged in defending the country by accepting the war
service, they did not get any opportunity to enter into civil services.
The Central Government assured them that after the cessation of
emergency, they will be rehabilitated in civil life so that they might not H
278 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

suffer on account of their rendering services to the nation. The grie-
A
vance of the respondents who have been recruited to Indian Forest
Service or the Indian Police Service from State Services is that
although the ECOs or SSCOs, have been recruited in the said All
India Services after the respondents, yet their year of appointment has
been fixed earlier than the year of allotment of the respondents.
B
At this stage, we may refer to the impugned rules. Rule 3(2)(d)
of the IFS (Regulation of Seniority) Rules, 1986 provides as follows:

"3(2). The year of allotment of an officer appointed to the
Service shall be-
c (a)

(b)

(c) ........................................... .
D
( d) Where an officer is appointed to the Service in
accordance with rule 7A of the Recruitment
Rules, deemed to be the year in which he would
have been so appointed at his first or second
attempt after the date of joining pre-commission
E training or the date of his commission where
there was only post-commission training accord-
ing as he qualified for appointment to the Service
in his first or second chance, as the case may be,
having been eligible under regulation 4 of the
Indian Forest Service (Appointment by Competi-
F tive Examination) Regulations, 1967.

Explanation.-If an officer, who qualified himself for
appointment to the Service in a particular year, could not
be so appointed in that year on account of non-availability
of a vacancy and is actually appointed in the next year, then
G his year of allotment would be depressed by one year. He
shall be placed above all the officers recruited under Rule
7A of the Recruitment Rules and who have the same year I.
of allotment."

Rule 3(2)(d) refers to rule 7A of the Recruitment Rules which
l
.0.
H provides, inter alia that till January 28, 1974, 20 per cen( of the per-
U.0.1. v. S.K. MURTHY (DUTI, J.] 279

manent vacancie~ in the Indian Foreign Service to be filled by direct
A
recruitment in any year shall be reserved for being filled by ECOs and
SSCOs of the Armed Forces of the Union of India, who were commis-
sioned after November 1, 1962 and who have been released from the
Armed Forces after a spell of service.

Clauses(~) and (d) of sub-rule (3) of rule 3 of IPS (Regulation of B
t Seniority) Rules, 1954 provides as follows:

"3(3)(a) ............................ · · · · · · · · · · · · · · · · ·

(d)

(c)' The year of allotment of an officer appointed to c
the Service in accordance with rule 7A of the
Indian Police Service (Recruitment) Rules, 1954,
shall be deemed to be the year in which he would
have been so appointed at his first or second
attempt after the date of joining pre-commission D
training or the date of his commission where
there was only post-commission training accord-
ing as he qualified for'appointment to the Service
in his first or second chance, as the case may be,
having been eligible under rule 4 of the Indian
Police Service (Appointment by Competitive E
Examination) Regulations, 1955.
'
Explanation.-If an officer, who qualified himself for
appointment to the Service in a particular year could not be
so appointed in that year on account of non-availability of a
vacancy and is actually appointed in the next year then his F
year of allotment would be depressed by one year. He shall
be placed above all the officers recruited under Rule 7A of
the Recruitment Rules and who have the same year of
allotment.

(d) The year of allotment of an officer appointed to G
the Service in accordance with rule 7A of the
Indian Police Service (Recruitment) Rules, 1954,
having been eligible under the second proviso to
s.ib-regulation (iii) of Regulation 4 of the Indian
Police Service (Emergeny Commissioned and
Short Service Commissioned Officers) (Appoint- H
280 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

A ment by Competitive Examination) Regulations,
1971, shall be deemed to be the year in which he
would have been so appointed at his first or
second attempt, after the date of joining pre-
commission training or the date of his Commission
where there was only post-comission training and
also after the lapse of as many years as would
have been necessary for him to complete his
studies, in the normal course, for the award of
the educational qualifications prescribed for
direct recruitment to the Indian Police Service
according as he qualified for appointment to the
Service in his first or second chance as the case
c may be."

Both the above rules, namely, IFS (Regulation of Seniority)
Rules, 1968 and IPS (Regulation of Seniority) Rules, 1954 have been
framed under AU-India Services Act, 1954, hereinafter referred to as
D 'the Act'. The Act, before it was amended, conferred power on the
Central Government to make rules for the regulation of recruitment
and the conditions of service of persons appointed to an All-India
Services. No power was, however, conferred by the Act on the Central
Government to frame rules with retrospective effect. The imugned
rules, namely, rule 3(2)(d) of the IFS (Regulation of Seniority) Rules,
E 1968 and clauses I c) and (d) of sub-rule (3) of rule 3 ofIPS (Regulation
of Seniority) Rules, 195d are admittedly retrospective in operation. It
is now a settlec principle of Jaw that if the statute under which a rule is
framed does nc,t confer on the authority concerned the power to make
such a rule with retrospective effect, the authority will have no power
to frame any rule with retrospective effect. The impugned rules, with
F which we are concerned, have been made by the Central Government
with retrospective effect, although there was no such power conferred
by the Act in that regard.

The All-India Services (Amendment) Act, 1975 has been enac-
ted by Parliament for the purpose of validating the impugned rules. By
G section 2 of the Amendment Act, a new sub-section (1-A) has been
inserted after sub-section (1) of section 3 of the Act, which has been
referred to as "the principal Act" in the Amendment Act. Sub-section
( 1-A) provides as follows:

"(J-A). The power to make rules conferred by this section
H shall include the power to give retrospective effect from a
I

U.0.1. v. S.K. MURTHY [DUIT, J.] 281

date not earlier than the date of commencement of this
A
Act, to the rules or any of them but no retrospective effect
shall be given to any rule so as to prejudicially affect the
interests of any person to whom such rule may be
applicable."

The provision for validation is contained m section 3 of the B
Amendment Act and it reads as follows:

"3. No rule made, or purporting to have been made, with
retrospective effect, under section 3 of the principal Act
before the commencement of this Act shall be deemed to
be invalid or ever to have been invalid merely on the
ground that such rule was made with retrospective effect
c
and accordingly every such rule and any action taken or
thing done thereunder shall be as valid and effective as if
the provisions of section 3 of the principal Act, as amended
by this Act, were in force at all material times when such
rule was made or action or thing was taken or done." D

The ECOs and SSCOs, who are some of the appellants, after
demobilisation of the military emergency service, have been appointed
in the Indian Police Service and the Indian Forest Service in 1969. In
view. of their past service in the army, which they had voluntarily
joined for the defence of the country during the period between E
1.11.1962 and 10.1.1968, \he impugned rules were framed providing
for the year of allotment of such officers appointed in the Indian Police
Service or in the Indian Forest Service with retrospective effect from
the date they would have been appointed at their first or second
attempt after the date of joining pre-commission training or the date of
their commission where there was only post-commission training. F
Thus, even if an officer has been appointed in an AU-India Service in
1969 in a regular manner after being selected on the qasis of the resuh
of the competitive examination in 1969; his year of allotment will be
one or two years after his joining the pre-commission training in the
army service. Suppose, an officer, after having been selected for the
army service, joined his pre-commission training in 1963. In 1963 he G.
was, therefore, eligible for taking a competitive examination for being
recruited to an All-India Service. If he was not successful, he would
get a second chance in the next year, that is, in 1964. If', after his
release from the army in 1968, he took the competitive examination
and successfully competed in such examination and was selected for
appointment in the first chance, according to the impugrted rules, his H
282 SUPREME COURT REPOR"fS [1989] Supp. 1 S.C.R.

year of all allotment would be 1963. If he was either not successful in
A his first attempt or did not avail himself of the same, he would have
another chance to compete in the examination for recruitment in an
All-India Service in the next year, that is, in 1969 and if he was success-
ful and appointed, his year of allotment would be 1964. In other
words, and impugned rules give weightage to ECOs and SSCOs of the
B past services rendered by them in the emergency army service.

It has been already noticed that the Tribunal has struck down the
impugned rules as ultra vires the provisions of Articles 14 and 16 of the

c
Constitution. According to the Tribunal, the impugned rules are dis-
criminatory in nature without any reasonable justification therefor and
thus offends against the provisions of Articles 14 and 16 of the Con-
stitution. The same contention has been advanced on behalf of the
-
respondents before us. It has not been disputed before the Tribunal
and also before us, that the ECOs and SSCOs formed a definite class,
distinct from the respondents or other officers of Indian Forest Service
and Indian Police Service. In other words,' it is the admitted position
D that the classification of ECOs and SSCOs is founded on an intelligible
differentia which distinguishes them from the respondents and other
officers of Indian Police Service and Indian Forest Service. It has,
however, been strenuously urged that the differentia on which the
classification is founded is lacking in rational relation to the object
sought to be achieved by the impugned rules and, as such, it does not
Et satisfy the test of reasonable classification as contemplated by Article
14 of the Constitution. This is also the view of the Tribunal.

We are unable to accept the contention. The impugned rules
h~ve been framed with a view to giving weightage to the ECOs and
SSCOs in recognition of their past services in the army during the
p period of emergency. We fail to understand why the classification has
no rational relation to the objects sought to be achieved by the
impugned rules. The classification has been made only for the purpose
of compensating the ECOs and SSCOs for their lost opportunity
because of their joining the army service and the impugned rules best
subserve the purpose. Accordingly, we do not think that there is any
G merit in the finding of the Tribunal and also in the contention of the
respondents that the impugned rules are violative of the provisions of
Articles 14 and 16 of the Constitution.

Both the High Court and the Tribunal have taken the view that
although section 3 of the All-India Services (Amendment) Act, 1975
H validates the impugned rules purporting to have been made with
U.0.1. v. S.K. MURTHY [DUTT, J.] 283

retrospective effect, yet the impugned rules are invalid inasmuch as
A
they prejudicially affect the interests of the respondents. Much
reliance has been placed by the respondents on the provision of the
new sub-section (1-A) of section 3(1) of the Act as inserted by section
2 of the Amendment Act, 1975. Sub-section (1-A) provides, inter alia,
that no retrospective effect shall be given to any rule so as to pre judi-
cially affect the interests of any person to whom such rule may be B
applicable. The contention of the appellants is that sub-section (1-A) is
itself not retrospective in operation and, as such, has no application to
the impugned rules which are retrospective in operation, that is,
before sub-section (1-A) was inserted in section 3.

It is, however, difficult to accept the contention of the appellants
that sub·section ( 1-A) is only prospective and does not apply to the c
impugned rules which are retrospective in operation. It has been
already noticed_~hat the impugned rules have been validated with
retrospective effect by section 3 of the Amendment Act which, in
validating any rule made with retrospective effect under section 3 of
the Act, provides that no such rule shall be deemed to have been D
invalid or ever to have been invalid merely on the ground that such
rule was made with retrospective effect and; accordingly, every such
rule and any action taken or thing done thereunder shall be as valid
and effective as if the provisions of section 3 of the Act (principal Act),
as amended by the Amendment Act, were in force at all material times
when such rule was made or action or thing was taken or done. In view E
of section 3, it has to be deemed that provisions of Section 3, as
amended by the Amendment Act, were in force at all material times
when such rule was made. In view of the provisions of section 3 of the
Amendment Act, sub-section (1-A) which has been inserted in section
3 of the Act by way of amendment, must be deemed to be in force at
the time the impugned rules were made. But the question is, even F
though sub-section (1-A) is deemed to have been there at the time the
impugned rules were framed with retrospective effect, whether the
impugned rules prejudicially affect the interests of the respondents.

It is urged on behalf of the respondents that the impugned rules
take away the vested rights of the respondents and, consequently, G
prejudicially affect their interests. Accordingly, it is submitted that the
impugned rules are illegal and cannot operate retrospectively in the
face of the provision of sub-section (1-A). This contention does not at
all impress us. The respondents have been given a particular seniority
in accordance with the relevant rules. The seniority of the respondents
is not taken away or interfered with by the impugned rules. The year of H
284 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

allotment of the responoents re1nains the same and is not altered to
A
their prejudice. The impugned rules only provide for giving weightage
to the ECOs and SSCOs for their past services in the army duriagihe
emergency period and their year of allotment will be determined in
accordance with the impugned rules. It is, however, complairted that
by giving the ECOs and SSCOs a year of allotment which is prior to
B the year of allotment of the respondents, the respondents have become
their juniors and their (respondents) chances of promotion are
seriously affected.

At this stage, we may also notice the contention of Mr. Raju
Ramachandran, learned Counsel appearing on behalf of some of the
respondents. It is submitted by the learned Counsel that as the respon-
c dents have acquired a particular seniority, section 3 of the Act as
amended, if read as suggested by the army officers, would contravene
the fundamental rights of the respondents. This extreme contention is
not sustainable on the face of it, for even assuming that the seniority of
the respondents or their chances of promotion are affected by the
D impugned rules, surely it cannot be said that there has been a contra-
vention of the fundamental rights of the respondents. Nobody has any
fundamental right to a particular seniority or to any chance of promo-
tion. It is not the case of respondents that because of the impugned
rules their cases for promotion will not be taken into consideration by
the authorities. The decision in A. Janardhana v. Union of India,
E [ 1983] 2 SCR 936 has no manner of application to the facts and
circumstances of the instant cases. In that case, this Court has laid
down that it is open to the Government to retrospectively revise
service rules, it the same does not adversely affect vested rights;
Further, it has been obsered as follows:

F "After the promotee is promoted, continuously renders
service and is neither found wanting nor inefficient and is
discharging his duty to the satisfaction of all, a fresh recruit
from the market years after promotee was inducted in the
service comes and challenges all the past recruitments
made before he was born in service and some decisions
G especially the ratio in Jaisinghani's case as interpreted in
two B.S. Gupta's cases gives him an advantage to the
extent of the promotee being preceded in seniority by
direct recruit who enters service long after the promotee
was promoted. When the promo tee was promoted and was
rendering service, the direct recruit may be a schoolian or
H colleg~ going boy. He emerges from the education institu-
U.0.I. v. S.K. MURTIIY [DUTT, J.J 285

tion, appears at a competitive examination and starts chal-
lenging everything that had happened during the period A
when he has had nothing to do with service."

We have already pointed out that the impugned rules do not
affect the vested rights of the respondents adversely. In Janardhana's
case, this Court was dealing with the question of seniority of prom- B
otees vis-a-vis fresh recruits from the market and observed that when
the promotee was promoted and was rendering service, the direct
recruit might be a schoolian or college going boy. In the instant cases
before us, the dispute is not between promotees and direct recruits,
the latter having no past services to their credit. The ECOs and SSCOs
are not in the position of direct recruits, for they have a record of past
services in the army which have been taken into consideration for c
fixing their year of allotment in accordance with the impugned rules.
So, Janardhana's case has no manner of application to the facts and
'circumstances of the instant case before us.

It is not that for the first time by impugned rules, the past D
services of the ECOs and the SSCOs have been taken into considera-
tion for the purpose of giving them their year of allotment with
retrospective effect, that is to say, on a date earlier than their actual
appointment in the Indian Police Service or in the Indian Forest
Service, as pointed out by Mr. G. Ramaswamy, learned Additional
Solicitor General appearing on behalf of the Govenment-appellants. E
The learned Additional Solicitor General has drawn our attention to
the notings in the Government files for the purpose of showing the
Government policy to rehabilitate the ECOs and SSCOs in All-India
Services, Central Services and State Services in order to ensure good
response and to provide sufficient incentives for those who offered
themselves for emergency commissions. These, notings start from F
November 17, 1962. It is not necessary for us to make a particular
reference to the notings in the Government files. Suffice it to say that
in view of the voluntary offer of services by the of youngmen our
country to defend the country against foreign aggression, the Govern-
ment took a very sympathetic view and took steps to_ compensate them
after their discharge from the Emergency Commission Service, for the G
opport.unity lost by them in joining the All-India Services. One thing
which is very significant to be mentioned here that although their past
services were taken into consideration, the Government did not relax
the minimum qualifications required for the All-India Services.
These ECOs and SSCOs had to appear in the competitive tests held by
the Union Public Service Commission and they were appointed only H
286 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R,

A after they become successful in such tests.

In this connection, we may refer to the Office Memorandum
1
dated January 29, 1966 providing for the rehabilitation of the ECOs
and SSCOs recruited since November 1, 1962, after their release from
the Armed Forces. The contents of the Memorandum are in the nature
B of executive instructions, but such executive instructions were fol-
lowed and were given effect. Paragraph 6 of the Memorandum which
deals with seniority and pay reads as follows:

"6. Seniority and pay.

Seniority and pay of those candidates who are
c appointed against the reserved vacancies in the AU-India
and Central Services would be determined on the assump-
tion that they entered service/post at the first opportunity
they had after joining for pre-Commission training. The
principles regarding fixation of pay and seniority laid down
D in this Ministry's Office Memorandum No. F. 35/11/62-
Ests. (E) dated the 6th August, 1963 read with Office
Memorandum of even number dated 15th February, 1965
(copy enclosed) will apply mutatis.mutandis to determine
the pay and seniority of ex-Emergency Commissioned
Officers/Short Service Regular Commissioned Officers
E appointed against the reserved vacancies."

Thus, although the impugned rules were not in existence in 1966,
the executive instructions as contained in the Office Memorandum
conferred the same benefit as conferred by the impugned rules. In
other words, it is apparent that the executive instructions have now
F been adopted as rules framed under the Act. Even otherwise, the
Released Emergency Commissioned Officers and Short Service Com-
missioned Officers (Reservation of Vacancies) Rules, 1967, framed by
the President of India under the proviso to Article 309 and clause (5)
of Article 148 of the Constitution of India, contained similar provisions
as to the seniority and pay of ECOs and SSCOs. Indeed, the provision
G of rule 6 relating to seniority of pay of ECOs and SSCOs is somewhat
similar to paragraph 6 of the Office Memorandum. The date of com-
mencement of the said rules is significant to be noticed. Under sub-
rule (2) of rule 1, the said rules shall be deemed to have come into
force with effect from January 29, 1966 which is the date of the said
Office Memorandum. It is, therefore, manifestly clear that the execu-
H live instructions, as contained in the Office Memorandum, have been
U.0.1. v. S.K. MURTHY [DUTT, J.J 287

incorporated in the form of rules framed under proviso to Article 309 A
and clause (5) of Article 148 of the Constitution of India.

It is, however, submitted on behalf of the respondents that in
view of the All-India Services (Conditions of S~rvice-Residuary Mat-
ters) Rules, 1960 (for short 'Residuary Rules'), the said rules framed
under !he proviso to Article 309 and clause (5) of Article 148 of the B
Constitution of India will not apply to persons appointed to an All-
India Service. The contention, in orir opinion, is not correct, for clause
(a) of rule 2 of the Resid.fury Rul~s provides that the Central Govern-
ment may make regulations to regulate any matters relating to condi-
tions of service of persons appointed to an All-India Service for which
there is no \provision in the rules made or deemed to have been made
under the Act and until such regulations are made such matters shall C
be regulated in the case of persons serving. in connection with the
affairs of -the Union of India, by the rules, regulations and orders
' Admittedly, no
applicable to officers of the Central Services Class-I.
rules under the Act were then framed in regard to the seniority of
ECOs and SSCOs and/or granting.them weightage for their past war D
service and, accordingly, the rules framed under the proviso to Article
309 and clause (5) of Article 148 of the Constitution of India applicable
to Class-I Officers of the Central Government were also applicable to
ECOs and SSCOs relating to their seniority in the All-India Services.

It is urged on behalf of the _appellants that while the benefit of E
weightage is being conferred on the discharged ECOs and SSCOs way
back from 1966, the writ petitions of the respondents should have been
dismissed on the ground of inordinate delay and !aches. In support of
this contention~some decisions have been cited by the appellants.
Similarly, the respdndents have also placed reliance on some other
decisions of this Court. We do not think that after the writ petitions F
were entertained by the Calcutta High Court and by the Tribunal and
disposed of on merits, it.will be proper at this stage to dismiss the writ
petitions on the ground of inordinate delay or !aches. At the same
· time, it shonld be borne in mind that when a particular rule conferring
benefits on a particular group of Government servants in recognition
of their past services in the army, has been in operation for over G
twenty years, this Court will be very slow to interfere with the rule and
deprive such group of Goverrunent servants of the benefits so confer-
red on them. This, however, does not mean that this Court will shut its
eyes even though such rules are illegal and are violative of the provi-
sions of Articles 14 and 16 of the Constitution. He have, however, held
that the int_p11_gned rules do not offend a!l_ainst or infring_e the prnvi- _l!
288 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

sions of Articles 14 and 16 of the Constitution.
A
Now, we may consider the contention of Mr. Lalit, learned
Counsel appearing on behalf of the respondents in the appeal arising
out of S.L.P. (C) No. 10105 of 1988. These respondents were in the
State Forest Service before 1966 and, subsequently, absorbed in the
B Indian Forest Service under the Central Government. It is not dis-
puted that unlike Indian Police Service, the Indian Forest Service was
constituted much later in the year 1966. It is also not disputed that the
respondents were the first batch of incumbents or entrants in the
Indian Forest Service. It is submitted on.behalf of the respondents that
the Indian Forest Service was constituted with the respondents as the
initial recruits.
c
We may now refer to some of the provisions of Indian Forest
Service (Recruitment) Rules, 1966, hereinafter referred to as 'IFS
Recruitment Rules'. Rule 3 of the IFS Recruitment Rules relates to
the constitution of the Service. It provides as follows:
D
"3. Constitution of the Service.-The Service shall consist
of the following persons, namely:-

(a) Members of the State Forest Service recruited to
the service at its initial constitution in accordance with the
provisions of sub-rule (1) of rule 4; and

(b) Persons recruited to the service in accordance
with the provisions of sub-rules (2) to (4) of Rule 4."

So, under rule 3, the Service consists of members of the State
F Forest Service recruited to the Service at its initial constitution and
persons recruited in accordance with the provisions of sub-rules (2) to
(4) of rule 4. The next relevant provision is rule 4. Sub-rules (1) and
(2) of rule 4, which are relevant for our purpose, are extracted below:

"4. Method of recruitment to the se,rvice.-(1) As soon as
G may be after the commencement of these rules, the Central
Government may recruit to the Service any person from
amongst the members of the State Forest Service adjudged
suitable in accordance with such regu.lations as the Central
Government may make in consultation with the State
liovernments and the commission;
H
U.0.1. v. S.K. MURTHY [DUTI, J.] 289

Provided that no member holding a post referred to
'A
in sub-clause (ii) of clause (g) or rule 2 and so recruited
shall, at the time of recruitment, be allocated to any State
cadre other than the cadr.e of a Union Territory.

(2) After the recruitment under sub-rule (1), subse-
quent recruitment to the Service, shall be by the following ·B
methods, namely;

(a) bys competitive examination;

(aa) by selection of persons from amongst the Emer-
gency Commissioned Officers and Short Service
Commissioned Officers of the Armed Forces of the c
Union who were commissioned after the ist November,
1962, but before the 10th January, 1968 .and who are re-
lel!SC<l in the manner specified in stib-rule-(1) of rule 7A;

(b) by promojion of" substantive members of the D
State Forest Service."

It appears from sub-rules ( 1) and (2) that there are four methods
of recruitment. The first method is as contained in rule 4(1), that is,
the initial recruits from the State Forest Service. The other three
methods of recruitment have been provided for in sub-rule (2) includ- E
ing the recruitment of ECOs and SSCOs who were commissioned
during the period of emergency and released in the manner specified in
sub-rule (1) of rule 7A. It is; however, clear that the recruits under
sub-rule (2) including the EC.Os and SSCOs are recruited after the
initial recruits under rule 4(1). Another thing to be noticed is that the
first examination for recruitment in the Indian Forest Service was held F
by the Union Public Service Commission in 1967.

It is strenuously urged by Mr. Lalit that as the respondents were
the initial recruit or, in other words, the Indian Forest Service having
been constituted with them, no person recruited under rule 4(2) of the
IFS Recruitment' Rules can be given seniority over the respondents G
whci are the initial recruits. As the Indian Forest Service itself was
constituted in 1966, there is no question of giving senioriti// to any
recruits beyond 1966. It is urged by the learned Counsel thaf the first
examination of the Indian Forest Service having been held in 1967
after the constitution of their service, there is also no question of lost
opeortunity so far as the ECOs and SSCOs are concerned. It is submit- . H
290 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.

ted that if such examinations had started to be held from 1962, then it
A
could be said that the ECOs and SSCOs had lost the opportunity of
competing in such examinations in view of their joining the army.
Accordingly, it is submitted that so far as the Indian Forest Service is
concerned, the consideration for giving weightage to the ECOs and
SSCOs on the basis of their past services in the army does not apply.
B
Atfractive though the contentions are, we are unable to accept
the same. It is true that the respondents were the initial recruits when
the Indian Forest Service was constituted in 1966 and that the other
recruits including the ECOs and SSCOs entered the service after the
respondents, but this fact has very little bearing on the question of
fixing the year of allotmeni having regard to -theyast services of .such
a recruits. The respondents themselves were ·appointed to the Indian
Forest Service in 1966, but they have been given the year of allotment
as '1964 1/;', that is to say, long before the Service came into existence.
If it is possible in the case of the respondents, we fail to understand
why it is not possible in the case of other recruits including the ECOs
D and SSCOs. The grievance of the respondents is that the ECOs and
SSCOs having been appointed subsequent to their appointment or, in
other words, they having entered service after the respondents, they
could not be given a year of allotment prior to that allotted to the
respondents. This contention is again misconceived. So far as the
respondents are concerned, the year of allotment has been granted to
E them on the basis of certain principles, as contained in rule 3 of IFS
(Regulation of Seniority) Rules, 1968. The ECOs and SSCOs are,
however, .governed by the impugned rules_ and their year of allotment
has been fixed as '1964' which is prior to the year of allotment of the ·
respondents and, accordingly, the ECOs and SSCOs are senior to the
respondents in the Indian Forest Service. In the Indian Police Service
F also the year of allotment of the ECOs and SSCOs is prior to that of
those-respondents who are in that Service.

We do not think that any invidious discrimination has been made
between the ECOs and SSCOs on the one hand and the respondents
on the other, both in regard to Indian Forest Service and Indian Police
G Service, as contended on behalf of the respondents. As soon as_ it is
found that the ECOs and SSCOs have been classified into a distinct\and
separafe"Class, andthat such classification is reasonable, no objection
can be taken to the year of allotment given to them in accordance with
the impugned rules. After gfvli1g·our--anxio11s_ consideration to the
respective contentions of the parties and after considering the different
H rules and regulations and also the fact that the ECOs and SSCOs had
U.0.1. v. S.K. MURTHY IDUTI, J.].
• 2'11

voluntarily offered their services for the defence of the country during A
the period of emergency, disagreeing with the High Court and .the
Tribunal, we are of the view that no illegality has been committed by
the Government in framing the impugned rules with retrospective
effect. We hold that the impugned rules are quite le~al and valid.

For the reasons aforesaid,. the impugned judgments of the High B
Court and of the .Tribunal are set aside and all these appeals-are
allowed. There will, however, be .no order as to costs in any of these
appeals.

R.N.J. Appeals allowed ..
c