B.S. MURTHY VS A. RAVINDER SINGH
B.S. MURTHY VS A. RAVINDER SINGH
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3968 OF 2009
B.S. MURTHY & ORS. ...APPELLANT(S)
VERSUS
A. RAVINDER SINGH & ORS. ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 3967 OF 2009
CIVIL APPEAL NOS. 3969-3982 OF 2009
WRIT PETITION (CIVIL) NO. 1380 OF 2020
ORDER
S. RAVINDRA BHAT, J.
1. The appellants are aggrieved by a common judgment and order of the
erstwhile unified High Court of Andhra Pradesh in several writ petitions.1 The
High Court allowed those writ petitions and set aside the order2 of the Central
Administrative Tribunal (CAT) in a batch of ten original applications. The CAT’s
order had allowed those applications and directed proper fixation of inter se
1 W.P.Nos.11620/2004, 10601/2004; 13525/ 2004, 12970/ 2004, 21863/2004, 1834/ 2005, 1836/2005, 1838 of
2005, 1858/ 2005, 1861/ 2005, 2011/2005, 1348/ 2005, 18149/ 2004, W.P. No.6098/2005, 6099/2005; 6100/ 2005,
& 6097/ 2005; all were decided on 16.03.2005.
2 Dated 29.12.2003
2
seniority of Inspectors of Central Excise, as between direct recruits and
promotees. The promotee inspectors are aggrieved, and are appellants before this
court.
2. Recruitment to the posts of Inspectors of Central Excise is from amongst
two channels- one, direct recruitment and the other, by promotion from in-service
candidates: in accordance with the provisions of the Central Excise and Land
Customs Group-C Recruitment Rules, 1979 (hereafter the "1979 Rules" or “the
Rules”) framed by the President of India under proviso to Article 309 of
Constitution of India. The ratio between the direct recruits and the promotions -
from amongst various in-service cadres on the ministerial line- was fixed under
the Rules at 75%:25% (or 3:1). The Rules however, did not provide guidance for
determination of inter se seniority of direct recruit inspectors (DRIs) and
promotee inspectors (PRIs). Seniority lists were prepared on the basis of
executive instructions issued by the Government of India from time to time. It is
an undisputed fact that inter se seniority was governed by an office memo3 dated
22.12.1959 (hereafter “1959 OM”) stipulating general guidelines to determine the
seniority of various category of employees in the Central Secretariat. The Central
Excise Department too followed it. The 1959 OM stipulated that seniority was
determinable by the order indicated at the time of initial appointment (and not
date of confirmation). Permanent Officers of each grade were to be ranked seniors
to those officiating to that grade. The inter se seniority of the direct recruits was
to be determined by the order of merit in which they are selected for such
appointment on the recommendations of the U.P.S.C. or such selecting authority.
Paras 2-5 of the 1959 OM provided the principles for determining inter se
seniority of direct recruits and promotees. In the light of experience, the 1959 OM
3 Office Memo No. 9/11/55 RSP dated: 22.12.1959
3
was changed, and another OM was issued, on 07.02.19864
(hereafter “1986
OM”).
3. Five Revenue Inspectors, from the promotion cadre (hereafter called
generically also- apart from PRIs as “promotees”), promoted in 1983-1984 filed
an application5
, challenging the inter se seniority list dated 08.07.1985 (hereafter
“the 1985 list”) issued by the department on the ground that the length of their
continuous service was not taken into consideration while fixing seniority. This
application however did not implead the direct recruit employees; it was allowed
on 05.07.1988 (hereafter “CAT 1988 order”). CAT directed the department to
recast seniority in accordance with the 1986 OM after giving notice to the affected
parties. A revised list was thereafter issued. DRIs, whose seniority was affected
by the revised seniority list filed review applications6
in the disposed of
applications. The CAT reiterated its main order, dated 05.07.1998 (hereafter
“CAT review order”). The department then issued a final seniority list (as on
1.1.1992) on 30.4.1993 (hereafter “1993 final list”). Those promoted before 1986
also requested the department to fix their seniority in terms of the CAT’s 1998
order.
4. CAT’s 1998 order was in the context of the 1986 OM, which was inapplicable to pre-1986 PRIs. Thereafter, the matter was referred to the Central
Board of Excise and Customs (“CBEC”), which apparently clarified that the
procedure of fixation of seniority notified in 1986 OM was to be applied to pre1986 promotees too. A seniority list was then prepared in respect of the officers
appointed prior to 1986 on the lines of 1986 OM. At this point, the DRIs filed
Review application in R.A. No. 103/1993 against the 1993 final list.
4 OM No. 35014/2/80- Estt. (D), dated: 7.2.1986
5 O.A.NO. 156/1986
6 R.A. No. 29/1994 etc.
4
5. The CAT, in an order doubted the basis of its previous decision and
referred the batch of matters to a Full Bench- on the issue as to whether 1986 OM
was prospective or retrospective. The Full Bench by its order clarified that the
1986 OM only operated prospectively from 1.3.1986. On the basis of the finding
of the Full Bench, the tribunal heard the review applications along with O.A. Nos.
1323/ 1993, 285/ 1994 and OA 906/1994. It is noteworthy that the Central
Government preferred a Special Leave Petition to this court, against the CAT’s
order in O.A.NO. 156/1986 which was dismissed as time-barred.
6. The tribunal considered the matter and the cases were disposed of by a
common order dated13.2.1997 recording the following conclusions:
(i) The O.M dated: 07.02.1986 was prospective;
(ii) Pre- 07.02.1986 inter-se seniority was to be regulated in accordance
with 1959 OM;
(iii) There was no break-down of the quota rule: The 1959 O.M. was to be
followed.
(iv) Cases of those who officiating as Inspectors prior to 01.03.1986 but
regularised after that date had to be individually decided after determining
the nature of officiation, nature of the post, (to which officiation related)
and the provisions of OM of 1959 and could not be generalised.
(v) Pre 01.03.1986 cases where the selection process -for direct
recruitment- but where appointment was made after that date were covered
by the OM dated: 7.2.1986.
7. Based on these findings, the 1993 final list was quashed; the department
was directed to prepare another list, afresh. To comply with the order, a special
cell headed by the Superintendent of Central Excise was formed. A new final
seniority list (dated 15.10.1997-hereafter “1997 list”) was issued based on
recommendations of the special cell; it was declared as final on 1.1.1992. This
1997 final seniority list became the subject of scrutiny in RA 56/ 1998 in
5
O.A.No.1323/1993 filed by the PRIs. These review applications were dismissed
by an order dated 27.8.1999. CAT was however of the opinion that the matter had
to attain a quietus to the long pending issue; it suggested the setting up of a
committee consisting of senior Commissioner as chairman to arrive at consensus
duly associating the representatives of DRIs and promotees. Any difference of
opinion, was to be recorded in the note and final decision was to be left to the
Chief Commissioner, who is the cadre controlling authority.
8. In due compliance with the order, a committee was formed. The CAT, in
the meanwhile, disposed of the pending proceedings on 30.3.20007
taking note of
the status report by the department, regarding preparation of the seniority list,
based on the submission that the final decision of the Chief Commissioner was
awaited.
9. The cadre controlling authority, considering the seniority list prepared by
the committee circulated a tentative seniority list as on 01.01.2002 calling for
objections. These objections were overruled and the final seniority list was
published on 7.8.2002. This list was questioned by the promotees, who filed O.A.
No. 938/ 2002 etc. The PRIs’ plea was that the seniority list finalised was not in
conformity with the directions issued by CAT in O.A.NO. 1323/ 1993 as well as
the principles in the 1959 and 1986 OMs. The department as well as the unofficial
respondents, that is, DRIs, resisted the proceedings. The department’s position
was that the procedure adopted was valid, in accord with the rules and that the
vacancy position from time to time was taken into consideration. The DRIs
contended that in fact PRIs occupied more than 25% quota and that the litigation
was needlessly continued.
10. CAT, in its order dated 29.12.2000, considered the submissions and the
record, and held that:
7 O.A.No. 429/1998, which challenged the final list of 1997
6
(i) The direct recruit/promotion Register of Inspectors,
maintained in the office and forwarded to the Hyderabad-I
Commissionerate was an authentic document which discloses the
actual vacancies that arose in each year during the period from
1984-1991 and the exact ratio of 3:1 of DR and PR quota
respectively;
(ii) There were no excess promotions during the years 1983 to
1991; 25% of actual vacancies arising every year during that
period were for the promotees. No direct recruit vacancy for any
year was filled by promotees;
(iii) The indents placed with, the Staff Selection Commission for
the recruitment of DRs were only for a part of vacancies (due to
partial, ban etc.) and not for the exact 75% of the actual
vacancies available in each year. There were no instances of
suppression or under-reporting of vacancies available for direct
recruits out of the permanent cadre strength in any year, to help
the promotees. There was consequently no justification for
invoking para 5 of the O.M. of 1986. The department wrongly
inferred that there were excess promotions by wrongly
estimating the promotee quota on the basis of the indents placed
for direct recruitment;
(iv)(a) The date of appointment of direct recruits the date for
counting seniority- it is not from the date of receipt of the
dossiers from the recruiting authorities or the date of
recommendation. Resultantly seniority of direct recruits
appointed after 1.3.86 is to be revised only from the date of their
respective appointments but not earlier to 1.3.1986 as is wrongly
done in the impugned seniority list,
(b) Direct recruits of 1992 were to be given seniority only in that
year but not in 1991 as was wrongly done in the impugned
seniority list;
(v) The seniority of five applicants in O.A.NO. 156/86 originally
fixed in terms of the order, had to be restored and could not be
altered.
(vi) Those promoted ad hoc basis in any year in the vacancies
available to them were eligible for seniority from the date of their
7
continuous officiation, if -they were promoted within their
eligible quota of that year under the Recruitment Rules;
(vii) Those promoted in 1983 against 17 posts diverted from
Shillong, were entitled to seniority in terms of 1959 O.M;
(viii) Of 137 promotees regularised on 27.10.1988, seniority of
those applicants regularised under the earlier order in 1985 is
to be fixed prior to 1.3.1986, on the said earlier date of their
regularisation in 1985;
(ix) Seniority of promotees functioning in temporary posts not
forming part of the cadre, is to be fixed from the date of
promotion/ appointment.
11. Accordingly, the CAT allowed the applications and set aside the seniority
list prepared as on 01.01.2002. The department was directed to revise and refix
the seniority list in the cadre of Inspectors in tune with the findings and the order
dated 13.2.1997 in O.A.NO. 1322/1993. Another direction to ascertain number
of vacancies, which arose each year for working out DRIs and PRIs in the ratio
of 3:1 on the basis of the direct recruit/promotion Register maintained during the
1991-1994 as well as the remaining period subsequent to 1999- on the basis of
the authentic records maintained in the office was issued.
12. Aggrieved by CAT’s order dated 29.12.2003 the DRIs and the Central
Government filed writ petitions before the High Court, which resulted in the
impugned judgment. The High Court held that the vacancy register had no
relevance for the purpose of promotion of in-service candidates and such
promotions could be only in proportion to the respective quota, based on indents
placed by the department with the Staff Selection Board for direct recruitment. It
also held that length of continuous service followed by regularisation cannot be
counted for the purpose of seniority since the quota rule had not been infringed.
It also held that validity of 1986 OM was not challenged in the applications by
the promotee inspectors. It therefore, upheld the impugned seniority list dated
22.07.2002.
8
Contentions of appellant-PRIs
13. It is urged on behalf of the PRIs by their senior counsel, Mr. R. Basant, that
the High Court overlooked the fact that the Chairperson of the Committee which
was constituted pursuant to the decision of the Full Bench (of CAT) submitted its
first report to the Chief Commissioner by letter dated 28.3.20008
suggesting that
direct recruit/promotee register of Inspectors maintained from 1884 to 1996
should be taken as the basis to arrive at number of vacancies year-wise to
determine the seniority since in terms of 1986 OM. The method of calculation of
vacancies should be based on vacancy register. The extract of the report reads as
under:
"I have looked into 'DR/Promotee register of Inspectors'
Hyderabad which has been forwarded by the Commissionerate.
It has been maintained systematically showing the exact ratio of
3:1 as provided in the O.M. dated 22.12.1959 and O.M. dated
7.2.1986. There is, therefore, little scope to doubt authenticity of
this register though no signatures are appended. Moreover, it
has been duly certified by the Joint Commissioner (F&V) of
Hyderabad Commissionerate as having been maintained in the
Establishment of Hyderabad Commissionerate now that this
register is available, it would be better to go by it than on any
assumption or principle to determine the number of vacancies on
the basis of which the seniority list is to be drawn up."
14. It was submitted that the Chairperson of the Committee submitted its
second report to the Chief Commissioner on 11.10.2000 clarifying that the
Special Cell’s formula of taking the actual number of DRIs appointed to arrive at
the PRI quota was narrow. Instead, it suggested to take the indents placed to Staff
Selection Commission (SSC) together with the appointments made on
compassionate grounds, inter Commissionerate transfers, sports quota and
surplus cell which were in the nature of direct recruitment as basis for arriving at
8 C.No.11/39/92/99-Estt., dated 28.3.2000
9
number of direct recruit vacancies and to arrive at PRI quota by arriving the ratio
of 3:1.
15. It was urged by Mr. Basant, that the January 2002 seniority list, completely
ignored the previous directions of CAT, which had attained finality, and
proceeded to apply the 1986 OM retrospectively, in regard to pre-1986 PRIs, as
well as ad-hoc PRIs, without considering that most such PRIs were in fact
promoted within the quota available to them, under the rules. It was submitted
that the department ignored two salient facts, first, that as many as 110
appointments were made, which were adjustable only against the direct recruit
quota (such as sports quota, compassionate appointments and inter
Commissionerate transfers). Secondly, the existence of a ban-though partial in
nature, preventing direct recruitment, was a completely neutral fact, which could
not have operated against the PRIs while determining the inter se seniority with
DRIs.
16. It was urged by learned senior counsel that the method of calculation of
promotee quota vacancies was flawed. The appellants urge that the quota is to be
worked out, based on the total vacancies arising each year. This contention is
supported by the 1979 Rules as well as 1986 OM. The department’s stand that
quota is to be worked out, not on the total reported vacancies as per the vacancy
register as envisaged in the 1986 OM but on the indents placed with the SSC for
DRIs is unjustified. This position is contrary to the express terms of the OM.
Indents placed with the SSC is only one, (among others) mode of direct
recruitment. It is not the only basis for determination of quota either, for quotas
are fixed by the Recruitment rules. According to the appellants the restricted
interpretation of the 1986 OM by the department would render it bad and violative
of Articles 14 and 16 of the Constitution.
17. It is urged that the 1986 OM is an executive instruction and hence
subordinate to statutory rules formulated under Article 309 of the Constitution.
10
Rule 7 of the 1979 Rules empowers the department to relax any of the rules with
regard to any class or category of persons. In this case, the Ministry of Finance,
Department of Expenditure imposed restrictions on filling up of direct recruit
vacancies during the years 1984 to 1990 while exempting vacancies to be filled
up purely by promotion in terms of the relevant recruitment rules from the
purview of those restrictions. These amounted to relaxation of the Recruitment
Rules in exercise of the powers conferred under Rule 7 of those Rules. The
appellants also rely on the averments, in Paras 5(1)(c) & (d) of the department’s
counter affidavit9
, admitting that filling of vacancies by promotion, was exempt
from the instructions relating to ban on recruitment, to the following effect.
“…..Central Board of Excise & Customs has since clarified that
there were restrictions on filling up direct recruit vacancies
during the years 1984 to 1990 and the restrictions do not apply
to vacancies which are to be filled up purely by way of promotion
in terms of the relevant Recruitment Rules."
18. The appellants then rely on the replies given by the department, to the
replies to queries (dated 29-08-2007, 30-10-2007, 13-11-2007 and 28-11-2007)
made under the Right to Information Act (“RTI”). The reply to the RTI query10
“the restrictions on filling up of direct recruit vacancies imposed
by the Government do not apply to vacancies which are filled up
purely by way of promotion in terms of recruitment rules
provided the resultant vacancies in the lowest level of the cadre
are not filled up during the period of the ban order”.
Likewise, the letter dated 13-11-200711 refers to two earlier letters, (F.7 (1)-E.
Coord/84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated 20.05.1986 and F.7 (1)-ECoord.186 dated 15.07.1986), issued by the Govt. of India, department of
9 Dated 25th August 2008 in CA 3969-3982/2009 arising out of SLP (C) 4784/2007
10 Given on 28-11-2007 (F.No.A.60/31/RTl/2007-Ad.lllB) by Govt of India, Ministry of Finance, Department of
Revenue, Central Board of Excise and Customs
11 F.No.A.60/3 l/RTI/2007.AD.IIl.B by the Govt of India, Ministry of Finance, Department of Revenue, Central
Board of Excise and Customs
11
revenue, alluding to the fact that “there were restrictions on the filling up of
Direct Recruit vacancies during the year 1984 -1990 in terms of instructions
issued by Government of India.” The appellants lastly rely on the reply dated
29.08.200712, which stated that
“..The 25% promotee quota vacancies of Inspectors were
worked out on the basis of actual vacancies available in each
year.…The promotee Inspectors promoted well within 25%
promotee quota.”
It is submitted therefore, that the department proceeded on a misconception that
promotions made even within the quota available for the PRIs were to be treated
as excess to the extent that indents were not (or could not be) made for direct
recruitment to the cadre, through the SSC.
19. It was further argued by the appellants, that the department’s interpretation
of the quota rule is untenable, in that for the purpose of reckoning seniority, the
quota for PRIs was taken to be one third of the total vacancies available and filled
by direct recruitment. This is contrary to the rules, which provide, independently
a quota of 25% of the total vacancies. It was submitted that this interpretation,
together with the fact that existence of a ban on direct recruitment was ignored,
led the department to ignore the directions in the previous orders of the CAT, as
well as the factual report of the commissioner, which clearly existed that the
vacancy register maintained at the relevant time, did not show that there was any
under-reporting of direct recruit vacancies.
Contentions of the respondent DRIs and the department
20. It was urged on behalf of the DRIs, who succeeded before the High Court,
that the impugned judgment does not call for interference. It is pointed out that
the question of inter se seniority has been gone into on multiple occasions, and
12 F. No. I/Admn (22) Misc-42 /R.TIA/CPIO/M-I/2007/49
12
the department interpreted the previous rulings (which had attained finality)
correctly while drawing up the seniority list.
21. It was urged that the previous seniority list (as on 01.1.1992) dated
15.10.1997 was not challenged by the PRIs; it was impugned by the DRIs.
Therefore, PRIs cannot seek better seniority than what their position was in the
list dated 15.10.1997 as on 1.1.1992. It was urged that the excess PRIs including
the applicants were not given any seniority positions in the seniority list dated
15.10.1997 and the appellants as well as other excess PRIs did not challenge the
said seniority list in which they were not granted seniority and were shown at the
bottom of the list. Having not challenged the seniority list on 15.10. 1997. It was
only challenged by the DRIs as they were aggrieved by their respective ranking
positions in that list. The PRIs therefore, cannot question the positions assigned
to them in the revised seniority list. It was argued that the CAT failed to notice
this aspect, and held that it was not open for the PRIs again at a subsequent stage
to contend that they ought to have been fixed in the seniority above 1991 and
1992 DRIs. They cannot be allowed to do so as the principle of estoppel would
squarely operate against them.
22. It was urged that the impugned judgment correctly appreciated that the
vacancy register at the most indicated the vacancy position in cadre and was not
meant to confer the benefit of promotion on in-service candidates more especially
when the promotions were to be made with reference to vacancies indented for
DRIs. Therefore, CAT's observation that only in case of detection of under
reporting/ suppression the bunching process had to be adopted and in other cases
the vacancies position vis-a-vis the promotion was to be identified from the
vacancy register, was untenable. It is also relevant that contrary to the premise
underlying the contentions of PRIs, there is no conflict between Para 4 and 5 of
the 1986 OM. This too was appreciated by the High Court. The pertinent issue,
submit the DRIs, was whether PRIs can claim seniority over the DRIs when they
occupied the posts beyond the prescribed ratio, subject to bunching process. Quite
13
possibly some PRIs were promoted on temporary basis and some were promoted
on ad-hoc basis. Assuming that they were promoted on regular basis, without
properly assessing the vacancies, that ipso facto could not confer any right to
claim seniority from the date of their appointment, in as much as, the seniority
can only be assigned when the vacancy crystallizes. It is always subject to the
quota rule. That is what was followed in the 1959 OM, however, a slight change
was brought in 1986 doing away with the slotting system and replacing the same
with the bunching system. The bunching process has the effect of balancing the
ratio as far as possible without much deviation and it acts as an effective catalyst
and always equalizes the inequalities created by excess promotion or excess.
23. The respondents urge that there cannot be excess direct recruitment in as
much as only clear vacancies would be reported to the selection agencies whereas
promotions would also be given on ad-hoc, temporary basis. In the process of
fixation of seniority, there could be variation in the dates of promotion either in
the promotee cadre or date of joining in the DRI cadre, but that should not be
allowed to uproot the entire seniority list and efforts must be made to set right the
commissions or omissions as far as practicable. The High Court also correctly
appreciated that para 5 of the 1986 OM did not cause prejudice to PRIs by the
bunching process and any promotions beyond the bunching stage were treated as
ad hoc promotions. The High Court correctly upheld the 1986 OM and observed
that it contained principles for fixation of seniority when the intake is from two
sources. In fact, in bunching system the PRIs would benefit in view of the fact
that when the indented vacancies are not filled up in toto for non-availability of
DRIs for various reasons, requisite promotions made to the extent of indented
vacancies.
24. It is argued that the OMs are to be read as they are and nothing can be
imported nor interpreted contrary to their intention. Quotas have been specifically
fixed between DRIs and PRIs at 75% and 25%, the quota of PRIs is co-relatable
14
to the indent placed for direct recruitment with the SSB. Therefore, the quota has
no relation to permanent strength or vacancy position.
25. It is contended that though a vacancy may arise, or exist, it may not
necessarily be filled up immediately. Therefore, even if the direct recruit quota
has not been filled up, PRIs should be given their share in terms of such vacancy
positions. The dispute also arose with regard to "identification" of the vacancies
that is, whether it is assessed on the basis of the indents placed by the departments
or by the SSC or on the basis of the vacancy position as reflected in the vacancy
register. It is pertinent to mention that DR/PR Register is not a vacancy register
contrary to the observation that the same was said to be maintained by the
department for the said purpose. Therefore, discrepancies in such register were
highlighted to CAT in the DRIs’ review petition. One discrepancy was that
promotion were given to an individual against a death vacancy which arose nearly
16 months after such promotion- this too was held to be a promotion within the
promotee quota and seniority was sought to be extended to such promotion from
the date of promotion by the CAT’s order. The CAT however, dismissed the
review petition on the ground that the plea was nothing but an appeal in disguise
and DRIs were free to appeal against the verdict.
26. It is argued therefore, that the maintenance of a Register at best, served to
identify vacancies. Instead of that register, the Departmental Promotion
Committee (DPC) reports (ordering the promotions with specific reference to
nature of such vacancies against such promotions were given for the said period)
would be more authentic in considering if promotions were made in the regular
manner. However, CAT ignored the DRIs’ pleas, in its order. It was submitted
that the vacancy register is not relevant when promotions are made but their
relevance is important at the time of fixation of seniority, as such promotions
should conform to the quota prescription under the rules, as between PRIs and
DRIs. The CAT, having observed that quota rule had not been broken down,
should have held that promotions could have been given only in proportion to the
15
PRI quota on the basis of indents placed by the department with the SSB and
promotions could not be correlated to the vacancy position. The bunching system
was introduced so as not to cause injustice to the promotee officers. The Central
Government's clarification clearly provided that notwithstanding the vacancies
which were indented by the department Staff Selection Board were not filled up,
yet, to the extent of the indent, promotions could be given by resorting to
bunching system. Consequently, the interests of the PRIs were fully protected.
27. The contesting respondents rely on the judgments of this court, reported as
State Of West Bengal & Ors v Aghore Nath Dey & Ors13; Devindra Prasad
Sharma v State of Mizoram14; Suraj Parkash Gupta v State of J& K15 to argue
that this court has previously ruled that wherever public servants are promoted in
excess of their quota, such promotions would be deemed as irregular to the extent
it violates the rules. The PRIs would be eligible only to the extent DRIs are
appointed, and that the balance or excess PRIs would have to be bunched at the
bottom of the seniority list.
28. The Central Government has supported the conclusions arrived at by the
High Court. On its behalf, the Additional Solicitor General (ASG) Ms. Madhvi
Divan, urged that the relative seniority of DRIs and PRIs has to be determined
according to the rotation of vacancies between DRIs and PRIs which shall be
based on the quota of vacancies reserved for direct recruitment and promotion
respectively in the Recruitment Rules. It was urged that the record clearly bears
out that while finalizing the seniority of Inspectors for the years 1983 to 2002 as
on 01.01.2002, vide seniority list dated 22.7.2002, the promotee quota vacancies
were arrived at year wise, in terms of the indents placed to the SSC for direct
recruitment and other appointments made under direct recruit quota i.e., on
13 1993 (3) SCC 371
14 1997 (4) SCC 422
15 2000 (3) SCR 807
16
compassionate grounds, sports quota, vacancies kept aside for interCommissionerate transfers and surplus cell.
29. The Central Government also argued that in tune with the OM of 1986 all
the excess PRIs including the appellants were not given any seniority position in
the seniority list dated 15.10.1997. The appellants did not challenge that seniority
list where they were not given any seniority position and were only shown at the
bottom of the list, they cannot challenge their seniority position in the impugned
seniority list and cannot question their present seniority positions. The note in the
seniority list dated 15.10.1997 with reference to the excess PRIs as regards to
their seniority was self-explanatory, Therefore, the grievance of the appellants
against the present seniority list was devoid of any merit. They are not entitled to
any relief.
30. It is lastly urged that in accordance with the principle adopted that the
indents placed to SSC together with actual appointment on compassionate
grounds, sports quota and vacancies kept reserved for Inter Commissionerate
transfers while placing such indents shall be taken as the vacancies meant for
direct recruitment, it was found that 789 vacancies arose during the period 1991-
2001 which indicated that the department could order 264 promotions -in that
period. Thereafter all the officers who were to be given seniority after 1999
including the officers promoted against the vacancies that arose consequent to
increase in the promotee quota from 25 % to 33 1/3 %, since at that point of time
all the vacancies under promotee quota were filled up, have been bunched and
given seniority in the year 2000.
Analysis and Reasoning
31. The rules in question, that is, 1979 Rules prescribes that recruitment to the
post of Inspectors is from two sources: direct recruitment (to the extent of 75%
of the cadre) and promotions (to the extent of 25% of the cadre). Promotions are
made from seven feeder grade cadre posts: Upper Division Clerks (UDCs)/Steno
Grade III; UDCs with a total of 13 years combined experience as UDCs and
17
Lower Division Clerks (LDCs); Stenographers Grade II; Stenographers Grade II
or Grade III with combined experience of 12 years; Woman Searcher with 7
years’ experience; Draftsman with seven years’ service in the grade. The rules
are silent about the principle on which inter se seniority of DRIs and PRIs is to
be fixed.
32. The 1986 OM which is at the heart of the present controversy is reproduced
below:
“OFFICE MEMORANDUM
Subject: General principles for determining the seniority of
various categories of persons employed in Central Services.
As the Ministry of Finance, etc. are aware, the General
Principles for determination of seniority in the Central Services
are contained in the annexure to Ministry of Home Affairs OM
No. 9/11/55-RPS dated 22-12-1959. According to Para 6 of the
said annexure, the relative seniority of direct recruits and
promotees shall be determined according to rotation of
vacancies between the direct recruits and the promotees, which
will be based on the quota of vacancies reserved for direct
recruitment and promotion respectively in the Recruitment
Rules. In the Explanatory Memorandum to these Principles, it
has been stated that a roster is required to be maintained based
on the reservation of vacancies for direct recruitment and
promotion in the Recruitment Rules. Thus, where appointment to
a grade is to be made 50% by direct recruitment and 50% by
promotion from a lower grade, the inter se seniority of direct
recruits and promotees is determined on 1:1 basis.
2. While the abovementioned principle was working
satisfactorily in cases where direct recruitment and promotion
kept pace with each other and recruitment could also be made to
the full extent of the quotas as prescribed, in cases where there
was delay in direct recruitment or promotion, or where enough
number of direct recruits or promotees did not become available,
there was difficulty in determining seniority. In such cases, the
practice followed at present is that the slots meant for direct
recruits or promotees, which could not be filled up, were left
vacant, and when direct recruits or promotees became available
18
through later examinations or selections, such persons occupied
the vacant slots, thereby became senior to persons who were
already working in the grade on regular basis. In some cases,
where there was shortfall in direct recruitment in two or more
consecutive years, this resulted in direct recruits of later years
taking seniority over some of the promotees with fairly long years
of regular service already to their credit. This matter had also
come up for consideration in various court cases both before the
High Courts and the Supreme Court and in several cases the
relevant judgment had brought out the inappropriateness of
direct recruits of later years becoming senior to promotees with
long years of service.
3. This matter, which was also discussed in the National Council
has been engaging the attention of the Government for quite
some time and it has been decided that in future, while the
principle of rotation of quotas will still be followed for
determining the inter se seniority of direct recruits and
promotees, the present practice of keeping vacant slots for being
filled up by direct recruits of later years, thereby giving them
unintended seniority over promotees who are already in position,
would be dispensed with. Thus, if adequate number of direct
recruits do not become available in any particular year, rotation
of quotas for purpose of determining seniority would take place
only to the extent of the available direct recruits and the
promotees. In other words, to the extent direct recruits are not
available, the promotees will be bunched together at the bottom
of the seniority list, below the last position up to which it is
possible to determine seniority on the basis of rotation of quotas
with reference to the actual number of direct recruits who
become available. The unfilled direct recruitment quota
vacancies would, however, be carried forward and added to the
corresponding direct recruitment vacancies of the next year (and
to subsequent years where necessary) for taking action for direct
recruitment for the total number according to the usual practice.
Thereafter, in that year while seniority will be determined
between direct recruits and promotees, to the extent of the
number of vacancies for direct recruits and promotees as
determined according to the quota for that year, the additional
direct recruits selected against the carried forward vacancies of
the previous year would be placed en bloc below the last
promotee (or direct recruit as the case may be) in the seniority
list based on the rotation of vacancies for that year. The same
principle holds good in determining seniority in the event of
19
carry forward, if any, of direct recruitment or promotion quota
vacancies (as the case may be) in the subsequent years.
Illustration:
Where the Recruitment Rules provide 50% of the vacancies in a
grade to be filled by promotion and the remaining 50% by direct
recruitment, and assuming there are 10 vacancies in the grade
arising in each of the years 1986 and 1987 and that 2 vacancies
intended for direct recruitment remained unfilled during 1986
and they could be filled during 1987, the seniority position of the
promotees and direct recruits of these two years will be as under:
1986 1987
1. P1 9. P1
2. D1 10.D1
3. P2 11.P2
4. D2 12.D2
5. P3 13.P3
6. D3 14.D3
7. P4 15.P4
8. P5 16.D4
17.P5
18.D5
19.D6
20
20.D7
4. In order to help the appointing authorities in determining the
number of vacancies to be filled during a year under each of the
methods of recruitment prescribed, a vacancy register giving a
running account of the vacancies arising and being filled from
year to year may be maintained in the pro forma enclosed.
5. With a view to curbing any tendency of
underreporting/suppressing the vacancies to be notified to the
authorities concerned for direct recruitment, it is clarified that
promotees will be treated as regular only to the extent to which
direct recruitment vacancies are reported to the recruiting
authorities on the basis of the quotas prescribed in the relevant
Recruitment Rules. Excess promotees, if any, exceeding the share
falling to the promotion quota based on the corresponding
figure, notified for direct recruitment would be treated only as
ad hoc promotees.
6. The General Principles of seniority issued on 22-12-1959
referred to above, may be deemed to have been modified to that
extent.
7. These orders shall take effect from 1-3-1986. Seniority already
determined in accordance with the existing principles on the date
of issue of these orders will not be reopened. In respect of
vacancies for which recruitment action has already been taken,
on the date of issue of these orders either by way of direct
recruitment or promotion, seniority will continue to be
determined in accordance with the principle in force prior to the
issue of this OM.
8. Ministry of Finance, etc. are requested to bring these
instructions to the notice of all the attached/subordinate offices
under them to whom the General Principles of seniority
contained in the OM dated 22-12-1959 are applicable within 2
weeks as these orders will be effective from the next month.
sd/- Joint Secretary to the Government of India”
21
33. The main issue before this Court is regarding application of Clause 4 and
5 of the OM of 1986 in the background of the 1979 Rules, which provide for 75%
by direct recruitment and 25% by promotion. In terms of the rules, ratio for the
two sources is three candidates from the direct recruitment channel and one
candidate from the promotional channel has to be resorted to. As mentioned
earlier there is no governing rule meant to guide the fixing of inter-se seniority
between the DRIs and PRs. That was done in accordance with the executive
Office Memorandums.
34. The 1986 OM introduced the principle of rotation of quota along with
bunching rule. In its terms when in a particular year, if against the available
vacancies, a given number of DRIs or PRIs are not available, after the last
available candidate, from a particular channel, candidates from the other channel
or quota would be bunched at the end of the list and such seniority and will be
treated as ad-hoc entrants, for the purposes of seniority. The effect of drawing
seniority lists in the manner required of by the OM is that in a particular year,
whenever the number of candidates appointed from either source– under the rule
can potentially be treated as ad-hoc to the extent that vacancies are not reported
to the SSC in a given year.
35. The question in this case is whether the ratio of the PRIs has to be drawn
with respect to the indented vacancies for the DRIs. The counsel for the DRIs has
argued in favour and the same has also been done by the government while
drawing the seniority list. The fall out of this mode of drawing the list is that if in
a particular year there are less number of indented vacancies for DRIs or the
vacancies are under reported the PRIs lose their right of seniority as given under
1979 Rules.
36. As is evident from the preceding factual discussion, the genesis of this
dispute was the first round of litigation, initiated by the promotee Inspectors –
who sought for proper fixation of their seniority. This culminated in CAT’s 1988
order. Since direct recruits were not arrayed as parties, they preferred review
22
applications, which were disposed of in terms of the main 1988 order, dated
05.07.1988.
37. This order required the department to frame the seniority list having regard
to the OM of 07.02.1986. The order of CAT attained finality when this Court
refused to entertain a special leave petition, directed against it, on 12.03.1990.
38. The second limb of litigation was triggered by the publication of another
seniority list of Inspectors (dated 30.04.1993) reflecting inter-se seniority
between direct recruits and promotees as on 01.01.1992. This list was based on a
retrospective application of the OM of 1986; it was challenged by direct recruit
Inspectors in a number of applications, and review applications. These
applications were heard, and on 12.07.1994, referred to a Full Bench of CAT. On
21.11.1996, the Full Bench rendered its opinion, inter alia, holding that the 1986
could not be applied retrospectively. The bench of CAT which then heard the
applications pending before it on merits held by its order of 13.02.1997 that the
OM of 1986 could be applied only prospectively, and that the 1959 OM had to
be followed for the period before the 1986 OM. It also held that the quota rota
rule had not broken down, and that the case of PRIs who were regularised after
the OM of 1986 had to be individually examined and their seniority, determined.
In the light of these observations, the seniority list dated 30.04.1993 was quashed.
39. Review petitions and certain pending applications were disposed of by
CAT, on 28.07,1999, when it observed that the fresh seniority list – to be
prepared, should be preceded by consultations between the direct recruits and
PRIs, whose views should be considered and appropriate recommendations, made
by Commissioner level officers. This order was sought to be reviewed, again:
however, CAT disposed of those applications, by its clarificatory order dated
30.03.2000.
40. Acting on the basis of these orders, a report was prepared by a five-member
committee (which held consultations among the employees, and seven sittings)
and submitted on 28.03.2000. The Chief Commissioner asked the Chairperson
23
(of the Committee) to re-examine the issue. In its report of 11.10.2000, the
Chairperson was of the view that to determine seniority and arrive at the correct
figures of the relative quotas, it was necessary to take into account, and include
appointees made against the sports quota, those appointed on compassionate
grounds, as well as those adjusted from the surplus cells to arrive at the vacancies
allocable to the share of direct recruits – in addition to vacancies reported to the
Staff Selection Board. The Chief Commissioner required the Chairperson of the
Committee to submit its final report, which it did, on 27.12.2000.
41. The record in the present discloses that the Central Board of Excise and
Customs had issued three directions, with reference to filling up vacancies in the
cadre of Inspectors. The first letter dated 9.3.198816 directed the department to
fill up only 12 vacancies as on 1.2.1988 out of 20 vacancies available for direct
recruitment. The second letter dated 4.7.198817 directed the respondents to fill up
only 18 posts by direct recruitment out of 37 posts available as on 28.2.1989. The
last, and third letter18dated 29.3.1989 directed the department to fill up only 15
vacancies by direct recruitment against 27 anticipated vacancies up to
28.02.1989. A cumulative reading of these three letters would indicate that for
the relative period, though 84 vacancies arose (were available) during the period
(1988-89), only 45 were permitted to be filled up.
42. The other important aspect is that at the relevant time, only 10% of the
direct recruit vacancies could be filled by compassionate appointment, in terms
of the extant policies. However, during the same period 50 compassionate
appointments were made. Similarly, 24 vacancies were filled by appointments
under the sports quota. 39 vacancies were filled by inter Commissionerate
transfers. Thus, in all 123 vacancies earmarked for DRIs were filled through these
modes (i.e. compassionate appointment, sports quota and inter Commissionerate
transfers).
16 F.No.12034/19/SCC 87 -Ad.111,B, dated 9.3.1988
17 F.No. A.12034/ SR/ 18/ SCC 88 Ad.III B dated 4.7.1988
18 F. No. A. 12034/SR I 181 SCC 88 Ad. III B.
24
43. From the above facts it is clear that for some of the years, there was a partial
ban on filling up of vacancies by DRIs and in addition to those, appointments
were also made through different modes but the same were not reported. The
department position in adopting such practices is not of an unbiased employer; it
is clearly erroneous. On one hand the department contends that the PRIs
vacancies were to be in proportion to those reported vacancies of the DRIs- to the
SSC and on the other hand, it did not report the correct number of vacancies
recruited against the DRI quota, such as those appointed under the compassionate
appointment quota and the sports quota. It is nobody’s case, nor can it be,that
such vacancies were filled from the PRIs quota. The appointments had to be
adjusted against the DRI quotas.
44. The department’s affidavit, dated 25.08.2008 states that the Board of
Central Excise and Customs clarified that
“there were restrictions on filling up direct recruit vacancies
during the years 1984 to 1990 and the restrictions do not apply
to vacancies which are to be filled up purely by way of promotion
in terms of the relevant Recruitment Rules."
45. The replies given by the department, to the replies to queries (dated 29-08-
2007, 30-10-2007, 13-11-2007 and 28-11-2007) under the RTI query19
“the restrictions on filling up of direct recruit vacancies imposed
by the Government do not apply to vacancies which are filled up
purely by way of promotion in terms of recruitment rules
provided the resultant vacancies in the lowest level of the cadre
are not filled up during the period of the ban order”
.
46. In fact the letter dated 13-11-2007 refers to two earlier letters, (F.7 (1)-E.
Coord./84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated 20.05.1986 and F.7 (1)-
E-Coord.186 dated 15.07.1986 which also support the existence of the ban on
direct recruitment, and further state that there were restrictions upon the
19 Refer to supra, f.n. 10
25
appointments under the direct recruit quota, for the years 1984-1990; the letter
dated 29-08-2007 in reply to an RTI query also admitted that the (promotions to)
“25% promotee quota vacancies of Inspectors were worked out on the basis of
actual vacancies available in each year.…The promotee Inspectors promoted
well within 25% promotee quota.” Thus, it was established that:
(a) The PRIs, initially appointed on a temporary or ad-hoc basis, were
regularized in two lots: one by an order in 1985, and 137 PRIs were regularized
by an order dated 27.10.1988.
(b) The direct recruits who sought seniority over the PRIs in this case, were
appointed in 1992, against existing vacancies, which became available for filling,
after the ban (imposed by the central government during 1984-1990) ended. The
requisition to the SSC for filling these vacancies, were apparently made in 1991.
(c) Several vacancies (which fell to the share of the DRI quota) were not
reported, to SSC, but were nevertheless filled- against the compassionate
appointment quota (to the extent of 50 vacancies and 39 appointments against
the sports quota;
(d) the ban against resorting to direct recruitment, did not apply to resorting to
promotion, to the extent, promotional vacancies existed. This is evident from the
affidavit of the Central Government, as well as other materials on record.
(e) The reply to a query, under the RTI, pointedly admitted that the promotions
made in the PRI 25% quota were well within the permissible quota.
47. The contesting respondents and the Central Government justify the
impugned judgment, contending that the PRIs had to be treated as ad-hoc
promotees, in terms of the 1986 OM, because firstly, the proportion in which they
were appointed against promotional vacancies were in excess of the proportion
available to DRIs, given the number of requisitions made to SSC and, secondly,
that there cannot be an assumption that the benefit of regularization to PRIs would
include seniority over the DRIs who were appointed later, but were entitled to be
treated as their seniors. These respondents have relied on the judgments of this
26
court in Aghore Nath Dey & Ors; Devindra Prasad Sharma; and Suraj Parkash
Gupta (referred to supra).
48. The decision in Aghore Nath Dey was one where the claim was by persons
granted ad- hoc, temporary appointments for a fixed period, which was extended
from time to time till their regularisation on 26-2-1980, by relaxation of the
condition of selection by the Public Service Commission, which was an express
condition of their ad hoc appointment and a requirement for regular appointment
under the 1979 Rules. The court held that assuming the relaxation was valid, they
could be treated as regularly appointed only with effect from 26-02-1980 upon
relaxation of conditions, and their resultant absorption in the cadre of Assistant
Engineers, based on a rule framed at the same time under Article 309 providing
for fixation of their seniority from that date. In such circumstances, this court,
held that there was no foundation for the claim that they could be treated at par
with the direct recruits, regularly appointed prior to 26-2-1980.
49. In Devindra Prasad Sharma the rules governed the situation, instructing
that inter se seniority was to be fixed in accordance with the ratio applicable,
under the rules, for the two channels, from the date of appointment. This court
held that
“The statutory rule 25(iii), as indicated above, clearly postulates
that the inter se seniority of the direct recruits and the promotees
has to be determined in accordance with quota and rotation.
Accordingly, seniority was rightly determined as per the
respective dates of appointment. Therefore, the rotation has to
be considered as per the date of appointment and in accordance
with the vacancy under the rules. Otherwise, the rule of rotaquota unduly gets disturbed.”
50. Suraj Prakash Gupta was a case, where the government relaxed the
conditions, and regularized the services of ad-hoc promotees who were given
appointment, against the vacancies that had to be filled by direct recruits. This
court held, in such circumstances that:
27
“..the Government was merely carried away by sympathy to the
promotees. By not making direct recruitment after 1984, by
restricting direct recruits to 10% rather than permitting 20% and
by deliberately promoting the Junior Engineers to the other 10%
quota of the direct recruits, the State Government had definitely
acted in a biased manner. There is any amount of justification
for the grievance of the direct recruits that the State had passed
an omnibus order on 2.1.98 regularising all ad hoc promotees
(Electrical Wing) without consulting the Commission, by way of
deemed relaxation, in a wholly arbitrary manner, counting the
entire ad hoc service of promotion. Their illegal occupation of
direct recruitment quota was not even noticed. Their eligibility
or suitability was not considered. It is probable that even those
who had bad ACRs were regularly promoted. The requirement
of following quota for each year was not respected. The
regularisations order dated 2.1.98 was therefore bad and was
therefore rightly quashed by the High Court. (This declaration is
confined to Assistant Engineers and Assistant Executive
Engineers (Electrical Wing) - as stated under Point No. 2 of the
High Court Court's judgment). We confirm the view of the High
Court on this point. The result is that the promotees have to go
through the Service Commission for getting into the gazetted
category of Assistant Engineers. The Assistant Engineers have to
go through DPC for promotion as Assistant Executive
Engineers.”
51. Clearly in two judgments (Aghore Nath Dey and Suraj Prakash Gupta) the
promotions were made in disregard of the rules; even in excess of their quota, and
against direct recruit quota. In Aghore Nath Dey, the promotee’s claim was to
seniority prior to their regularization – which was achieved through a special rule,
inserted by way of amendment. The claim was that seniority should be given to
the promotees, over the direct recruits, who had been appointed earlier. In Suraj
Prakash Gupta, promotions were made in excess of the quota and as against posts
that should have fallen due to direct recruits, in their quota. The ratio in these
decisions is inapplicable, because there is nothing to indicate that the promotees
(who were regularized in 1988) exceeded their quota. Furthermore, the
department’s pleading, specifically admits that the promotees were appointed
against vacancies available to the PRI quota.
28
52. This court, in K.V. Subba Rao & Ors. v. Government of Andhra Pradesh20
held that, promotion and seniority shall be reckoned from the date of
appointment, not retrospectively from the date when the vacancy arose. M.
Nirmala v State of AP21 is a judgment, where the government issued an order,
banning recruitment. Stop gap, ad-hoc promotions were given, to many
employees, in 1974; they were eligible to be considered for regular promotion
only after two years, subject to passing a test. Many of them sought relaxation,
which was granted; they were ultimately regularized in 1978 without the test.
They sought shifting of the date of promotion, to an earlier date, which this court
held, was inadmissible:
“In 1973, the ban on recruitment through Public Service
Commission was partially lifted. By G.O. Ms. No. 725 dated
December 28, 1973, the Government of Andhra Pradesh directed
the Public Service Commission to conduct a special qualifying
test for recruitment in. Group IV services with a view to
regularising the temporary appointments made during the ban
period. One of the conditions of eligibility for appearing at the
said qualifying test was, as fixed by the Public Service
Commission, two years of service as on 1.1.1973. As the
petitioners were appointed after April, 1974, the question of their
appearing at the said qualifying test did not arise. It appears that
those who appeared at the said test were all absorbed in the
regular service. On the representation of the temporary
employees who were not absorbed, the Public Service
Commission conducted another special qualifying test as
directed by the Government by G.O. Ms. No. 787 dated
November 9, 1976. The petitioners could not avail themselves of
the said test as they had not put in two years of service as on
1.1.1976 as fixed by the Public Service Commission.”
53. This court, in M. Subba Reddy v A.P. State Road Transport Corporation22
considered a situation where departmental candidates were given ad-hoc
promotions against direct recruit vacancies when a ban on direct recruitment was
20 1988 (2) SCR1118
21 1986 (3) SCR 507
22 2004 Supp (2) SCR7
29
in force. Upon later regularization (of such promotions) it was contended that the
regularizations related back and that the promotees were to be accorded seniority
over direct recruits, who entered the service. The court rejected this argument,
holding as follows:
“mere inaction on the part of the Government cannot be made a
ground to contend that the quota rule has broken down. In the
present case, in the absence of direct recruitment, the appellants
could not have got seniority over direct recruits. Where there is
inaction on the part of the Government or employer or imposed
ban on direct recruitment in filling up the posts meant for direct
recruits, it cannot be held that the quota has broken down.”
54. State of Uttaranchal & Ors. v Dinesh Kumar Sharma23 was a decision,
where this court held that the seniority is to be reckoned not from the date when
the vacancy arose, but from the date on which the appointment is made to the
post. The judgment in AFHQ/ISOs SOs (DP) Association & Ors. V. Union of
India (UOI) & Ors24 distinguished Subba Reddy (supra) specifically in the
context of periods when a ban in recruitment exists
“28. In M. Subba Reddy and Anr., etc. v. A. P. State Road
Transport Corporation and Ors. AIR 2004 SC 3517, relied upon
by Mr. L. N. Rao, learned senior Advocate appearing on behalf
of AFHQ Civil Service (Direct Recruits-Gazetted) Officers'
Association, this Court while dealing with inter se seniority
between direct recruits and promotees to the posts of Assistant
Traffic Manager (for short "ATM") and Assistant Mechanical
Engineer (for short "AME") in A.P. State Road Transport
Corporation, held that rota rule is inbuilt in the quota prescribed
in Item 3, Annexure 'A' (Section B) to A.P. SRTC Employees
(Recruitment) Regulations, 1966 and could not be deviated from.
In that case, the appellant promotees were promoted to the posts
of ATMs/AMEs temporarily under Regulation 30 as there were
no direct recruits available. They were promoted subject to being
reverted to substantive posts on approved candidates becoming
available. Regulation 34(6) states that the revertees shall
23 2006 Supp (10) SCR 1
24 2008 (3) SCC 331
30
subsequently be considered for repromotion against the quota of
vacancies reserved for promotees. Therefore, one has to read
Regulation 3 of the A.P. SRTC Employees (Service) Regulations,
1964 with Regulations 30 and 34 of the Recruitment Regulations.
It is only when such revertees are repromoted as per Regulation
34, they can be deemed to have been appointed to the posts of
ATM or AME. Therefore, when the appellants were tentatively
appointed to the post of ATMs/AMEs originally for want of direct
recruits and to the posts reserved for direct recruits, it cannot be
said that they were first appointed to that category within the
meaning of Regulation 3 of the Service Regulations. Therefore,
seniority had to be fixed between the direct recruits and the
promotees strictly in accordance with the quota provided for in
Item 3 of Annexure 'A' (Section B). The said Regulations
prescribe a quota of 1:1, which leads to rota for confirmation.
The contention of the appellants before this Court was that they
had a right to be promoted within their quota during the years
1981 to 1987, when vacancies for promotees' quota became
available. M. Subba Reddy, appellant in that case, was
regularized from 27.12.1986 vide order dated 9.9.1988, when no
direct recruits were available and, therefore, it was improper for
the Corporation to place direct recruits above the promotees.
The appellant submitted that in such a case the quota in Item 3(1)
of Annexure 'A' to the Recruitment Rules would not apply; that
the said item prescribed only quota and not rota for seniority and
that the direct recruits could not claim appointment from the date
of vacancy in their quota before their selection . They added that
seniority was dealt with only by Regulation 3 of the Service
Regulations, 1964 and not by Regulation 34 of the Recruitment
Regulations, 1966. That in view of the 15.9.1995 amendment,
Regulation 34 referred to only allocation of vacancy and not for
determination of seniority. A total ban for direct recruitment was
imposed by the State from the year 1977 to 1988 and, thus, the
purported quota-and-rota rule contained in Item 3 of Annexure
'A' could not have been given effect to. The majority view of this
Court was that where there is inaction on the part of the
Government or employer or imposed ban on direct recruitment
in filling up the posts meant for direct recruits, it cannot be held
that the quota has broken down. We, with respect, do not support
the view of the learned Judges that in the facts and circumstances
of the case the quota has not broken down because of inaction
on the part of the Government in imposing ban in filling up the
posts meant for direct recruits. The appellants in the said case
were promoted in a regular manner having been regularized in
31
service with retrospective effect. Their services were not
regularized from the date of their initial ad hoc promotion but
with effect from the date when the vacancies became available.
Their services after regularization would not be by way of a stopgap arrangement. The direct recruits who were appointed in the
years 1990 and 1991, in terms of Item 3 of Annexure 'A' would
be considered to have been appointed only after their successful
completion of training. They were borne in the cadre in the years
1990-91 and, thus, prior thereto they cannot claim seniority. The
learned third Judge, dissenting with the learned two Judges, has
held that the direct recruit can claim seniority from the date of
his regular appointment, he cannot claim seniority from a date
when he was not borne in the service. Thus, the direct recruits of
1990 and 1991, by reason of the impugned seniority list, could
not have been placed over and above the appellants-promotees
because the purported quota and rota rule contained in Item 3 of
Annexure 'A' could not have been given effect to because the
State Government had imposed total ban for direct recruitment
from the year 1977 to 1988. In such a situation, the said quota
rule became inoperative. We agree with the dissenting view of
the learned Judge that in the facts of the case, the quota rule
became inoperative because the direct recruits were borne in the
cadre when they were appointed against the vacancies meant for
them.”
The judgment in Pawan Pratap Singh v. Reevan Singh25
considered several
previous precedents, on the issue, including the Constitution Bench decision in
Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra26
. The
correct position was summarized by Lodha, J. in the following manner:
“(i) The effective date of selection has to be understood in the
context of the service rules under which the appointment is made.
It may mean the date on which the process of selection starts with
the issuance of advertisement or the factum of preparation of the
select list, as the case may be.
25 2011 (2) SCR 831- a view followed later, in State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 and,
more recently, endorsed in K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC 689 that “seniority should not
be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court
held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may
adversely affect the employees who have been appointed validly in the meantime”. Also Dinesh Kumar Gupta &
Ots v High Court of Judicature, Rajasthan 2020 SCC OnLine (SC) 420
26 (1990) 2 SCR 900
32
(ii) Inter se seniority in a particular service has to be determined
as per the service rules. The date of entry in a particular service
or the date of substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the other or
between one group of officers and the other recruited from
different sources. Any departure therefrom in the statutory rules,
executive instructions or otherwise must be consistent with the
requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the
backdate and if it is done, it must be based on objective
considerations and on a valid classification and must be
traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence
of the vacancy and cannot be given retrospectively unless it is so
expressly provided by the relevant service rules. It is so because
seniority cannot be given on retrospective basis when an
employee has not even been borne in the cadre and by doing so
it may adversely affect the employees who have been appointed
validly in the meantime.”
55. In a concurring opinion, Aftab Alam, J. reiterated the position and alluded
to additional authorities on the subject and said:
“To the decisions referred to on this point in the main judgment
I may add just one more in Suraj Parkash Gupta v. State of J and
K (2000) 7 SCC 561]. The decision relates to a dispute of
seniority between direct recruits and promotees but in that case
the Court considered the question of antedating the date of
recruitment on the ground that the vacancy against which the
appointment was made had arisen long ago. In para 18 of the
decision the Court framed one of the points arising for
consideration in the case as follows:
“18. ... (4) Whether the direct recruits could claim a
retrospective date of recruitment from the date on which the post
in direct recruitment was available, even though the direct
recruit was not appointed by that date and was appointed long
thereafter?
This Court answered the question in the following terms: (Suraj
Parkash Gupta case)
33
“Point 4
Direct recruits cannot claim appointment from the date of
vacancy in quota before their selection
80. We have next to refer to one other contention raised by the
Respondent direct recruits. They claimed that the direct
recruitment appointment can be antedated from the date of
occurrence of a vacancy in the direct recruitment quota, even if
on that date the said person was not directly recruited. It was
submitted that if the promotees occupied the quota belonging to
direct recruits they had to be pushed down, whenever direct
recruitment was made. Once they were so pushed down, even if
the direct recruit came later, he should be put in the direct recruit
slot from the date on which such a slot was available under the
direct recruitment quota.”
These decisions were reiterated, and followed in a three-judge bench judgment in
P. Sudhakar Rao & Ors. v U. Govinda Rao & Ors27 which ruled that seniority
cannot be given to any appointee from a date anterior to his or her appointment,
in the cadre.
56. From the above discussion, it is clear that no appointee from any one
channel (direct recruits or promotees) can lay claim to seniority from a date before
her or his appointment. That being the position in law, it would be now necessary
to consider the reasons which weighed with the High Court to hold that the
promotees (in regular and substantive capacity from 1988) had to make way for
direct recruits, who were appointed in 1991-92. Simply stated, the High Court
was of the opinion that promotees had to be treated as occupying posts in excess
of the quota allocated to them, on an application of the 1986 OM. Now, as a
matter of fact the materials on record establish that there were promotee vacancies
at a time when the ban on direct recruitment was in force (during 1984-1990). To
27 (2013) 8 SCC 693
34
the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad
stated, in its reply dated 30-08-2007, as follows:
“In this Commissionerate whatever vacancies occurred in a
year, the same were divided in the ratio 3:1 during the period
1986 to 1990 and the share of vacancy which comes for direct
recruit were reported to SSC and the promotee quota vacancies
were filled up by holding DPC.
The same letter also stated that:
“..the 25% promotee quota vacancies were washed (sic worked)
out on the basis of actual vacancies available in each year.”
The reply further stated that all the promotions were made on regular basis. The
rationale for the argument that promotions are to be treated in excess of the
promotee quota, is that the requisite number of vacancies falling to the share of
direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5
of the 1986 OM were relied upon.
57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which
would contain a “running account of the vacancies arising and being filled from
year to year”. This was deemed necessary, because of the Para 3 of the same OM
which entails the procedure of bunching rule.
58. Hence, it is essential to keep in mind that Para 5, (which has been the basis
of the High Court judgment, to hold that the PRIs were in excess of their quota)
was meant to cater to a contingency that is of underreporting direct recruit
vacancies to the public service commission (in this case, the SSC) which resulted
in an unfair advantage to promotees who would “steal a march” over such direct
recruits, appointed later. It was in such contingencies, that is, of under-reporting
vacancies, that the consequence of deeming promotions to be ad-hoc could be
resorted to. If one keeps this perspective in mind, the correct direction of inquiry,
35
(which in this court’s opinion was undertaken by CAT) was to see what were the
number of regular vacancies relative to the quotas, with specific reference to the
vacancy register. This approach, however, was discredited by the High Court,
which held that the vacancy register
“at the most indicates the vacancy position in DRI/PRI cadre and
it is not intended to confer the benefit of promotion on in-service
candidates more especially when the promotions are to be
effected with reference to the vacancies indented for D.R.ls.
Therefore, the observation of the tribunal that only in case of
detection of under, reporting/suppression the bunching process
had to be adopted and in other cases the vacancies position visa-vis the promotion has to be identified from the vacancy register
is untenable.”
59. As discussed, the materials on record indicate that promotional vacancies
did exist, at the relevant period. There was a ban on direct recruitment. The
reasons for the ban are now obscure; but the fact remains that it was in force for
six years (1984-90). During this period, undoubtedly, no requisitions were made
to the SSC for filling direct recruit vacancies. However, the linear logic, applied
by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the
promotions made during the same period had to be treated as in excess of the
quota, because they were not in proportion to the requisitions for direct
recruitment. This view is plainly fallacious, because it equates executive policy -
of not filling vacancies, due to financial or other compulsions with deliberate
underreporting, meant to result in unfair advantage to the PRIs. In the present
case, direct recruitment through the SSC was not resorted to because of a ban,
and not due to under-reporting. Thus, the contingency visualized in Para 5 never
arose. Not only were promotions made within the quota, and were regular (as they
were preceded by proceedings of the Departmental Promotion Committee, and
culminated in regularization, in 1988), there were in fact regular vacancies, within
the promotee quota.
36
60. The existence of PRI vacancies is a matter of objective fact – as can be
seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies
fell to the share of PRIs, in terms of the 25% quota earmarked for them, under
statutory rules. In such circumstances, to say that those promoted, by resort to
DPCs and regularized later, should be treated as ad-hoc promotees, would be
contrary to express rules. In other words, by giving effect to Para 5 of the 1986
OM, (and treating the promotions as ad-hoc for purposes of inter se seniority),
the statutory rules are virtually given a go bye. It is also contrary to the stated
objective sought to be achieved by Para 3 of the 1986 OM, which is to “present
practice of keeping vacant slots for being filled up by direct recruits of later years,
thereby giving them unintended seniority over promotees who are already in
position, would be dispensed with.” The promotions of the PRIs before this court
therefore, have to be treated as regular. This court is of the opinion, that the
reasoning of the High Court, in overlooking these aspects, is clearly in error.
61. The other aspect – which the High Court ignored, is that a number of
vacancies were filled from amongst the quota for compassionate appointment,
and the sports quota. They were not reported to the SSC. In such circumstances,
to treat the promotees as exceeding the quota set apart for them (though as a
matter of fact, they were accommodated within the quota) is not warranted.
Furthermore, the materials on record also show that though there was a ban on
direct recruitment, it did not apply to vacancies which were to be filled up by way
of promotion in terms of the Recruitment Rules.
62. For the above reasons it is held, that the High Court fell into error in setting
aside the order of the CAT, which is hereby restored. Therefore, it is held that:
(i) No excess promotions took place during the period 1983 and 1991. 25%
of the actual vacancies arising every year during that period were for the
promotees. No direct recruit vacancy for any year was filled by promotees.
37
(ii) Indents/requisitions placed with, the SSC for the recruitment of DRIs
were for a part of the vacancies and not for the exact 75% of the actual
vacancies available in each year.
(iii) The record does not bear out instances of suppression or underreporting of vacancies available for direct recruits out of the permanent
cadre strength in any year, to help the promotees. As a result, there is no
justification for invoking para 5 of the O.M. of 1986. The department
erroneously proceeded as if there were excess promotions by wrongly
estimating the promotee quota on the basis of the indents placed for direct
recruitment;
(iv)(a) The date of appointment of direct recruits the date for counting
seniority- it is not from the date of receipt of the dossiers from the
recruiting authorities or the date of recommendation. Resultantly seniority
of direct recruits appointed after 01.03.86 has to be revised only from the
date of their respective appointments but not earlier to 01.03.1986 as was
done in the impugned seniority list,
(b) Direct recruits of 1992 could be given seniority only in that year but
not earlier, or in 1991 as was erroneously done in the impugned seniority
list;
(v) The seniority of five applicants in O.A.NO. 156/86 originally fixed in
terms of the order, had to be restored and could not be altered.
(vi) Those promoted ad hoc basis in any year in the vacancies available to
them were eligible for seniority from the date of their continuous
officiation, if -they were promoted within their eligible quota of that year
under the Recruitment Rules;
(vii) Those promoted in 1983 against 17 posts diverted from Shillong, were
entitled to seniority in terms of 1959 O.M;
38
(viii) Of 137 promotees regularised on 27.10.1988, seniority of those
applicants regularised under the earlier order in 1985 has to be fixed prior
to 1.3.1986, on the said earlier date of their regularisation in 1985;
(ix) Seniority of promotees functioning in temporary posts not forming part
of the cadre, is to be fixed from the date of promotion/ appointment.
63. The impugned judgment and order is accordingly set aside; the appeals by
the PRIs are allowed in the terms of the above findings. The consequential action,
by way of drawing and publishing a final seniority list, in accordance with the
present findings, shall be completed within three months. The writ petition is also
disposed of in the above terms. There shall be no order on costs.
........................................................J
[UDAY UMESH LALIT]
........................................................J
[HEMANT GUPTA]
........................................................J
[S. RAVINDRA BHAT]
New Delhi,
March 15, 2022.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
Comments
Post a Comment