Summary
Directly recruited Sub-Inspectors of Police in Tamil Nadu challenged the placement of in-service (constabulary) candidates, selected against a 20% quota within the direct recruitment quota, en bloc above open-market recruits who had scored higher marks; this preference rested first on unnotified Government Orders of 1995, 1996 and 2009 and finally on a 2017 amendment to Rule 25(a) of the Tamil Nadu Police Subordinate Service Rules, 1955 made retrospective from 13.07.1995. The Supreme Court held that executive instructions cannot supplant statutory rules, struck down the 2017 seniority amendment and quashed the Government Order as violative of Articles 14, 16 and 21 while leaving the 20% reservation itself undisturbed, and directed that all gradation lists from 1995 be recast on the basis of marks, protecting promotions already made.
Issues
- Whether in-service candidates recruited against the 20% quota within the direct recruitment quota could be given seniority over open-market direct recruits on the strength of executive orders when Rule 25 of the 1955 Rules fixed seniority by rank in the select list.
- Whether the amendment to Rule 25(a) of the 1955 Rules by G.O. Ms. No. 868 dated 21.11.2017, granting such en bloc seniority with retrospective effect from 13.07.1995, is constitutionally valid.
- Whether the 2017 amendment providing 20% reservation in the direct recruitment quota for in-service candidates warrants interference.
- What relief should follow for the direct recruits and for in-service candidates already promoted on the basis of the earlier seniority lists.
Provisions considered
- Rule 25(a) (seniority), with Rule 3 and Annexure I (methods of appointment), Tamil Nadu Police Subordinate Service Rules, 1955Rule 25(a) determines seniority by the rank obtained in the list of approved candidates drawn up by the appointing authority, and its proviso fixes the seniority of directly recruited Sub-Inspectors by marks in the final examination at the Police Training College. The Court held that the unamended rule was clear, that seniority of all direct recruits (open market and in-service) must follow the rank assigned on marks, and struck down the proviso inserted by the 2017 amendment placing departmental-quota recruits above open-quota recruits with retrospective effect from 1995. (¶¶ 3, 15, 19, 22, 27, 28)
- Article 309, proviso, Constitution of IndiaThe 1955 Rules are statutory rules framed under the proviso to Article 309. The Government Orders of 13.07.1995, 24.10.1996 and 10.06.2009 were never published in the Gazette and never amended those rules; they remained executive instructions which could not override Rule 25. (¶¶ 3, 4, 5, 15, 19, 20)
- Articles 14, 16 and 21, Constitution of IndiaThe 2017 amendment to Rule 25(a) granting all in-service candidates seniority over open-market recruits, and the retrospective operation given to it, were held violative of Articles 14, 16 and 21 and struck down. (¶¶ 22, 23, 28)
Held
- Executive instructions can supplement or clarify statutory rules and fill gaps, but cannot supplant them or run contrary to them (State of M.P. v. G.S. Dall and Flour Mills; Jaiveer Singh v. State of Uttarakhand). The Government Orders of 1995, 1996 and 2009 were executive instructions, never gazetted, and the rules were not amended until 21.11.2017; granting in-service candidates seniority over open-market recruits on their basis supplanted the statutory rule, a process unheard of in service jurisprudence. (¶¶ 15, 19, 20, 21)
- Under the unamended Rule 25, seniority of direct recruits was fixed by the rank assigned by the appointing authority in the select list; placing departmental candidates with lower marks (for example a candidate with 69.27 marks over the first-rank holder with 79.10) above open-market candidates only because they were in service was against settled canons of law. (¶ 19)
- Appointing in-service candidates under the direct recruitment quota from 1995 onwards without amending the recruitment rules was not a course open to the State, but promotions already granted are not disturbed. The 2017 amendment, insofar as it provides 20% reservation for in-service candidates within direct recruitment, warrants no interference. (¶ 22)
- The amendment to Rule 25(a) by G.O. dated 21.11.2017 granting all in-service candidates seniority over candidates recruited from the open market, made retrospective from 13.07.1995, gives preferential treatment to less meritorious candidates who had already been granted the concession of the 20% quota; it is violative of Articles 14, 16 and 21 and is struck down. A provision that takes away an individual's rights with retrospective effect deserves to be set aside. (¶¶ 22, 23, 28)
- Once appointment to a service is made on the basis of a competitive examination, seniority must follow performance in that examination and not past service in the feeder cadre (Dinesh Kumar Gupta v. High Court of Rajasthan; Prem Narayan Singh v. High Court of M.P.); State of H.P. v. Raj Kumar is distinguishable on facts. (¶¶ 24, 25, 26)
- All seniority lists from 1995 must be recast by assigning seniority to open-market and in-service candidates alike solely on the ranks assigned by the appointing authority on the basis of marks obtained in the examination through which they were selected; no other process can be followed. (¶ 27)
Result
Appeals disposed of; G.O. Ms. No. 868 dated 21.11.2017 quashed and the amendment to Rule 25(a) struck down; all gradation lists for direct recruitment (including the 20% in-service candidates) to be recast on marks within 60 days; no reversion of officers already promoted, but no promotion of departmental candidates until the revised list; direct recruits found fit to get notional promotion, seniority and consequential benefits except back wages within two months of the revised list; future direct recruitment through one common examination with seniority by marks; no costs.