TMI Blog1985 (3) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... various grades. Para V provided for general conditions of eligibility for appointment in the service at the initial constitution. Para V provided that recruitment to grade l, II and III of the general cadre will be made on the recommendations of the Senior Selection Board of which the Chairman will be the Chairman of the Union Public Service Commission or his nominee. Selection to other grades will be made by the Junior Selection Board in consultation with Union Public Service Commission. Para VIII provided for inter se seniority of persons selected for grades I, II and III of the general cadre. Appendix to the Memorandum sets out sanctioned strength of posts in various grades of lFS B' and the scales of pay attached to each grade. Petitioners were selected by the Union Public Service Commission according to the merits obtained at the examination conducted for the purpose in 1955 for appointment to the post of Assistant, and were allocated to the Ministry of External Affairs. After the initial constitution of the service in 1956 petitioners were offered an option whether they would like to join IFS 'B' in Grade lV at the time of its initial constitution. The memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urce and the recruitment has to conform to the quota prescribed for each source, simultaneously interlinking the inter-se seniority in respect Of recruits entering service from different sources to the quota for . each source, if the quota reserved for any source is not filled in for a long time and the vacancies allotted to the source are carried forward and the later day recruits from that source are given deemed seniority over the earlier recruits from the other sources, it has the pernicious tendency to give an undeserved advantage to a later recruit over the earlier recruit and it would be violative of Arts. 14 and 16. If it is held that Rule 25(1) (ii) has precedence over Rule 21, then Rule 25(1) (ii) is unconstitutional inasmuch as failure to recruit enough number of persons to the extent of the quota reserved for the source in a reasonable time, in the absence of any power to carry forward vacancies available to that source, the rota rule of seniority would be discriminatory in character and lead to denial of equality in the matter of appointment to public service. It was submitted in such a situation the rota rule would break down under the weight of massive departure f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancies were filled, the recruits were given retrospective deemed date for seniority relatable to the coming into existence of the vacancy for that source without such a provision being found in 'the relevant rules, it was stated that vacancies have been carried forward, if at all because of the non-availability of the candidates and in the absence of a stipulation in the relevant rules permitting diversion of vacancies from one quota to another, it was inevitable that the quota of vacancies allotted to a source have to be carried forward. Replying to the averments that in the impugned seniority list blank spaces have been left open for giving seniority to persons who have still not joined the service and are likely to join at some uncertain date, it was submitted that this process would not push down the seniority of the petitioners as they would occupy the same serial No. in the seniority list. When the matter was being heard in the Court, one Radhey Shyam Aggarwal, respondent No. 26 in the petition appeared and filed his affidavit. He was recruited to Grade IV IFS 'B' in 1964 through the open competitive examination held by Union Public Service Commission. He wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e General Cadre. Such appointments shall be made in order of seniority in the Select List except when, for reasons to be recorded in writing, a person is not considered fit for such appointment in his turn. G (b) Temporary vacancies in the Integrated Grades II and IlI of the General Cadre shall be filled by the appointment of persons included in the Select List for the Integrated Grades II and III of the General Cadre. Any vacancies remaining unfilled there after shall be filled first from among the person approved for inclusion in the Select List and there after by the temporary promotion on the basis of seniority subject to the rejection of the unfit of permanent officers of Grade IV the General Cadre and Grade II of the Cypher Sub-Cadre who have rendered not less than eight years of approved service in any one grade or the two Grades and are within the range of seniority. Such promotions shall be terminated when persons included in the Select List for the Integrated Grades II and III of the General Cadre become available to fill vacancies. (2) The Select List referred to in clauses (a) and (b) of sub rule (l) shall be prepared in the following manner: (i) 33-1/3 per cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 25. Seniority inter-se of the officers appointed to a Grade from different sources. (1) Integrated Grade 11 III of the General Cadre. (i) The eligible persons in Grade IV of the General Cadre and Cypher Assistants of the Cypher Sub Cadre shall be arranged in separate lists In the order on their relative seniority in their respective Grades. Thereafter the Departmental Promotion Committee shall select persons for promotion from each list upto the prescribed quota as indicated in rule 13 and arrange all the persons selected from the two lists in a consolidated order of merit which will determine the seniority of persons on promotion to Integrated Grades II and III of the General Grade (ii) Direct recruits to a Grade and persons substantively appointed to the Grade from the Select List for the Grade shall be assigned seniority inter-se according to the quotas of substantive vacancies in the Grade reserved for direct recruitment and the appointment of persons included in the Select List, respectively 1964 Rule have been enacted in exercise of power conferred by the proviso to Art. 309 of the Constitution and are thus indisputably statutory in character. Recruitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given year, the place in the list available to the source as per rotation is kept open and a later recruit at any distance of time from that source will be assigned that place over persons who are already recruited from other sources and would be working in substantive vacancies. The net effect of a drawn-up seniority list in this manner is that a promotee in a given year even within its quota may go down to a much later direct recruit as the place in rotation is kept open for him without limitation of time. This is the crux of the matter. A bird's eye-view of the relative position of the petitioners who are all departmental promotees in the two impugned seniority lists would bring into focus the contours of controversy. S. No. of the petitioners Name of the petitioner Place in the 1979 seniority list Place in the 1983 seniority list 1 2 3 4 1. G.S. Lamba 397 163 2. S.K.Chibber 380 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, whose who would come into service after June 25, 1979 either from the source of direct recruitment or from the source of limited competitive examination would fill in the above vacant places in the seniority list and thereby score a march over others who have not only been in service on June 25, 1979 and have been substantively promoted and have become members of the service and who have been included in the seniority list for the service, Turning now to the impugned seniority list of June 30, 1983 which for all practical purposes supersedes the seniority list of June 25, 1979, placements at Sr. Nos. 170, 175, 179, 184, 189, 193, 197, 203, 209, 215, 221, 227, 233, 239 have been kept vacant and these places would be filled in by direct recruits who would join at some future date not specified, after June 30, 1983. The disturbing feature is that when direct recruitment will be made at some future date after June 30, 1983, the first vacant place at Sr. No. 170 would be assigned to the first in the list of direct recruits and even though he would enter the service for the first time somewhere after June 30, 1983, he would be senior to the departmental promotee holding a subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1966 - - - 1967 - - - 1968 - - 3 1969 - - 8 1970 - - - 1971 - - - 1972 34 - 25 1973 29 - 10 1974 5 - 14 1975 39 11 2 1976 26 5 16 1977 - 11 4 1978 47 7 2 1979 36 6 2 1980 27 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 1978 55 19 4* *Indent 1979 36 18 14* *Indent 1980 44 15 4* *Indent 1981 24 12 7* *Indent 1982 24 12 8* *Indent. As far as the figures OF direct recruits given for the years 1973 11 to 1982, the column recites that the figures therein mentioned are of the indent sent by the Union Public Service Commission for making direct recruitment but there is nothing to show how many joined as direct recruits. Accepting the information as supplied by the respondent Union of India, what strikes one at a glance is that the recruitment from three sources was never according to quota nor according to available vacancies for each source. Record as disclosed does not indicate that the vacancies available to a particular source but not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recruits were given temporary, stop-gap or adhoc promotion subject to availability of candidates from other sources who were entitled to fill in those vacancies and that this was done for a B short period and till the candidates, regularly recruited from the sources to which vacancies were allocated were available to fill in the vacancies held by the recruits in excess of the quota from the other sources. No such information was forthcoming. The only justification offered for not filling in vacancies by recruits from each source according to its quota is that the procedure for direct recruitment as also the procedure for holding limited competitive examination is prolix, time consuming and dilatory and therefore the recruitment made at a later date from such source could not work to the disadvantage of such recruits by pushing them down below those whose promoted in excess of the quota available to that source. If Rule 25(1)(ii) which provides for inter-se seniority of direct recruits to a grade and persons substantively appointed to the grade from the select list for the grade, upon its true construction, permits leaving open placement in the seniority list to be filled in at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iority is inextricably linked with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. In the period between the decisions in B.S. Gupta's case and A.K. Subramana's case, this Court threadbare examined the legal position in relation to quota-rota rule and a large scale deviation from it with its consequent effect on the seniority rule. In Janardhana's case this Court in terms held that 'As quota rule was directly inter related with the seniority rule, and once the quota rule gave way, the seniority rule became wholly otiose and ineffective. It is equally well-recognised that where the quota rule is linked with the seniority rule, if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper. It may incidentally be mentioned that this view was approved and reiterated in P.S. Mahal's case. In O.P. Singla and Anr. v. Union of India Ors. (1) Chandrachud, C.J. speaking for the majority after taking note of the proviso to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otational system of vacancies between them and the promotees who were appointed to the service, the rule of seniority according to rotation of vacancies between promotees and direct recruits according to quota must inevitably break down when promotions of promotees are made to the service under Rule 16 and 17. The majority quoted with approval the following passage from the judgement in Janardhana's case: But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service.A time has come to recast service jurisprudence on more, just and equitable foundation by examining all precedents on the subject to retrieve this situation. The learned Chief Justice made a pertinent observation that the observations in the extracted passage are not wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the seniority list indicate 17 that if the next direct recruitment is made, say in 1990 and the limited competitive examination is held in 1988, the recruits from the aforementioned two sources will have to be placed at Sr. No. 170 in the case of direct recruits and little down below in case of a candidate qualifying at the limited competitive examination. The direct recruit already placed at Sr. No Fin 170 in 1990 would score a march over departmental promotees of 1978 and persons in service after qualifying at the limited competitive examination in 1988. The emerging situation would be in pari materia with what was found by this Court in Janardhana's case and O.P. Singla's case and the reasons therein mentioned will mutatis mutandis apply for quashing the seniority list for the self same reason. Approaching the matter from a slightly different angle, in our opinion, Rule 21(4) and Rule 25(1) (ii) both can be harmoniously read because they operate in two different areas. Rule 21(4) provides that subject to other provisions of this rule (not all rules) persons promoted or recruited earlier on the basis of earlier selection or recruitment shall be senior to those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its in a given year coming from three independent sources may be integrated inter-se according to quota and rota. The block in subsequent year would be always junior to the block of recruits in the earlier years. This is how Rule 21(4) and 25(1) (ii) can be harmoniously read and it is unquestionable that they operate in two different situations and both have to be given effect to. Now turning to the impugned seniority lists, what the Union of India appears to have done is that it has applied the quota and rotated the vacancies but where candidates from a particular source were not available, the vacancies were deemed to be kept open (some kind of carry forward) to be filled in by later recruitment from the same source years after the vacancy occurred, but in the meantime the vacancy was filled in presumable by excess recruitment from the other sources. That is clearly either non-implementation of the quota rule or mal-functioning of the quota rule and yet the rota rule is adhered to which is both impermissible under the Rules as well as unjust, unfair and inequitous being violative of Arts. 14 and 16. 1) It was however contended on behalf of the respondents that the quota prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to do, it may be ordered, for reasons to be recorded in writing to relax any of the provisions of these rules with respect to any class or category of persons or posts. Provided that in relation to posts falling within the purview of the commission, no order in respect of a class or category of persons or posts shall be made except after consultation with the Commission. The controlling authority is defined in Rule 2F to mean the Government of India in the Ministry of External Affairs. Therefore the Government of India in the Ministry of External Affairs enjoys the power, if it is necessary or expedient so to do, to relax any of the provisions of these rules, with respect to any class or category of persons or posts. The proviso carves out an exception that in relation to posts falling within the purview of the Union Public Service Commission no order in respect of a class or a category of persons or posts shall be made except after consultation with the Commission. We will presently deal with the effect of non- consultation of the Commission in a given situation. However, Rule 29(a) indisputably confers power to relax any of the provisions of the 1964 Rules which shall also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the court inferred from various relevant circumstances then prevailing that the appoints not in consonance with the prescribed procedure for direct recruitment must have been made in relaxation of the rules. When the question again came up in Janardhana's case the Court held that if direct recruitment was made in relaxation of the relevant rules, the same reasons will mutatis mutandis apply to hold that promotions in excess of quota were given by relaxing the rules. It is therefore reasonable to believe in this case that though the quota was mandatory it was not adhered to by exercising the power of relaxation both qua persons and posts. It was however contended that it is not permissible to infer that promotions in excess of quota were given by relaxing the quota rule because the posts in Integrated Grade II and III were within the purview of the Union Public Service Commission and the proviso to Rule 29(a) mandates that power to relax is hedged in with a condition that it can be done after consultation with the Commission, and there is nothing to show that the Commission was ever consulted. Undoubtedly, the proviso to Rule 29(a) requires that the controlling authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the power. to relax the rule was exercised yet the action taken would not be vitiated nor would it furnish any help to Union of India which itself cannot take any advantage of its failure to consult the Commission. Therefore it can be safely stated that the enormous departure from the quota rule year to year permits an inference that the departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. Once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal as held by this Court in N.K. Chandan and Ors. v. State of Gujarat ([1977]1 S.C.R., 1037). Therefore the promotion of the promotees was regular and legal both on account of the fact it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service. Once the promotees were promoted regularly to substantive vacancies even if temporary unless there was a chance of their demotion to the lower cadre, their continuous officiation confers on them an advantage of being senior to the later recruits under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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