TMI Blog1974 (4) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... and 33 % of the posts to the promotees collapsed and with the collapse of that quota rule, the seniority rule which gave weightage to the promotees of 2 to 3 years also broke flown The court observed, Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in consultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16-1-1959. It follows, therefore, that the seniority list of 15-7 1968 will have to be set aside and the department will have to prepare a fresh seniority list in the light of the observations made in this judgment. Broadly speaking the seniority list from 1951 to 15-1-1959 will be prepared in accordance with the quota rule of 1951 read with the seniority Rule 1(f)(iii). The seniority list from 16-1 1959 will be prepared in accordance with the rule to be freshly made by the Government in that behalf. It was further directed as follows: As already shown, these proceedings before us arise out of the mandamus issued by this Court in Jaisinghani's case. The senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio of 1 : 1 and the same shall be so determined and regulated in accordance with a roster maintained for the purpose, which shall follow the following sequence, namely :-- (a) promotee; (b) direct recruit; (c) promotee; (d) direct recruits; and so on. 3. Having framed the above rule to regulate the seniority of the officers, in supersession of any other rule which was in force for the time being, the department prepared the seniority list in accordance with the directions given in the judgment and filed it in court on February 15, 1973. It is not disputed that the directions given in the judgment have been followed with regard to the fixation of seniority till 15-1-1959. It is also not disputed that if the new seniority rule referred to above is a valid rule, then the rest of the seniority list which comes down to serial No. 1717 is also correct. The principal objection is to the validity of the new rule. It is challenged not only as unjust and unfair but also as violative of the promotees' fundamental right under Article 16 of the Constitution. 4. It is necessary to recall that in the 1950's there were several years when the promotees were appointed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otees and odd serial numbers to the direct recruits. In other words, the new seniority rule not only permits the absorption of all promotees from 16-1-1959 into posts allocated to them but also determines their seniority not only between themselves but also in relation to the direct recruits appointed from 1959 onwards. 6. The contention on behalf of the 73 spill-over promotees of 16-1-1959 is that since this Court had directed that they should be absorbed on a priority basis , all of them should have been shown in the seniority list as having been appointed on 16-1-1959 in a block and thereafter the direct recruits for that year should have been shown. It is true that this Court had directed that these promotees should be absorbed on a priority basis . That only meant that their position as senior should not be prejudiced by any possible claim by later promotees, on the ground, that being recruited outside the quota, they had higher rights than those 73 promotees who had no posts. It was not intended that these 73 should not be governed by any seniority rule. They were to be governed by a rule which covered all those who came or were deemed to have come into the cadre after 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a cadre, recruitment to which was prescribed from two sources. The vacant posts were directed to be allotted to direct recruits and promotees in a particular ratio and seniority was regulated inter se by rules framed later. Some principle of allocating posts and some principle of determining relative seniority were inevitable in the context of the Constitution of the cadre, and Government did not and could not have abandoned these principles in the matter of recruitment. The quota rule allocated the posts between the two sources and the seniority rule regulated the seniority vis-a-vis the direct recruits and the promotees. Indeed there was nothing special about it. In any service where recruitment is made from several sources, there is bound to be some method of allocation of posts between the several sources coupled with a rule to determine seniority amongst the candidates recruited from those sources. In fact a rule for regulating allocation of posts and to determine seniority amongst the officers in a sine-qua-non of every well-regulated service to which direct recruits and promotees are appointed. The Government was fully aware of this binding nature of the principles in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y every year the appointments should be divided equally between direct recruits and promotees and the promotees being already in the department should be given seniority over the new direct recruits. Although the parties had made these suggestions, this Court declined to accept the responsibility and observed : We do not think that we shall be justified in expressing our opinion as to how inter se seniority is to be fixed after 15-1-1959. Since the old seniority rule has ceased to operate by reason of the infringement of the quota rule it will be for the Government to devise, if necessary in consultation with the Union Public Service Commission, a just and fair seniority rule as between the direct recruits and the promotees for being given effect to form 16-1-1959. The new seniority rule is the direct outcome of not only our judgment but also of the very principles on which the service had been constituted. The new seniority rule, therefore, was a substitute rule very necessary from the point of view of the Constitution of the service for maintaining its continuity as a well-regulated cadre. When the old quota rule and the seniority rule broke down on 16-1-1959, their place was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s soon realised and hence in an endeavour to maintain the quota ratio the department decided not to make any promotions in the years 1963, 1965 and 1967 to 1970 so that the officers who had been already promoted could be absorbed in their quota. But since this Court held in 1972 that the quota rule had ceased to exist on 16-1-1959 it must follow that the appointments were continued irregularly in the absence of a regularising Rule. The rule now challenged in just the rule which makes posts available right from 16-1-1959. Apart from the fact that all the promotees from 16-1-1959 onwards had been appointed on an officiating or ad hoc basis with notice that the question of their seniority was still undecided, the appointments carried their own infirmity as irregular appointments, and hence in the absence of clear allocation of posts, they could hardly lay claim to any seniority and object that their natural seniority had undergone an unwarranted change in violation of Article 16. 11. It is true that this Court held that quota rule had ceased to exist but that does not mean that having regard to its Constitution, the service could continue to function without a substitute rule in it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption that the spill-over promotees of 16-1-1959 and the officers promoted thereafter were entitled to claim seniority from the date of their appointment. The spill-over promotees claim 16-1-1959 as the date of appointment and the other promotees claim some date between 1959 and 1962 when they were promoted. It is on this assumption that they are entitled to get these dates as the dates to determine their seniority that the whole submission under Article 16 is based. 13. It is necessary to remember, however, in this connection that all these officers had been told when promoted that their appointments were on an officiating or ad hoc basis and the question of their seniority had not been determined. It was thereby implied that orders about seniority could only be passed after the department was in a position to take a decision with regard to the inter se seniority between the promotees and the direct recruits. That being the situation of all these officers they could hardly contend that the dates of appointment will not be altered for the purposes of determining seniority. Where recruitment is made from one source, there is some ground for the contention that an officer promoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of adjustment of seniority between the recruits and does not amount to making a classification after their absorption in one service. The cases on which reliance was placed on behalf of the promotees are quite inapplicable. In Mervyn Coutinho and Ors. v. Collector of Customs, Bombay and Ors. (1967)ILLJ749SC the point was whether Appraisers promoted to the grade of Principal Appraisers could be discriminated in the matter of seniority in the grade of Principal Appraisers on the ground that they had entered the grade of Appraisers as either promotees or direct recruits. The Customs department sought to carry their birth marks into the grade of the Principal Appraisers and determine their seniority accordingly. This Court disallowed it pointing out that once officers from two sources came into one integrated grade, viz. the grade of Appraisers, their seniority in the grade of Principal Appraisers was to be governed by their length of service in that grade, and was not liable to be altered with reference to their original position in the Appraisers' grade. In other words, the court held that all the Appraisers lost their birth marks after they were integrated in the cadre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage in the matter of seniority and since this was not done the new seniority rule was neither just not fair. 17. When considering this point it must be clearly understood that this Court is not concerned with Govt.'s policy in recruiting officers to any service. Government runs the service and if it is presumed that it knows what is best in the public interest. Government knows the calibre of candidates available and it is for the Government to determine how a particular service is to be manned--whether by direct recruits or by promotees or both and, if by both, what should be the ratio between the two sources having regard to the age factor, experience and other exigencies of service. Commissions and Committees appointed by the Government may indeed give useful advice but ultimately it is for the Government to decide for itself. In the particular service with which we are concerned, viz. that of class I Income-tax Officers, Government had known for many years that there was a lot of discontent amongst the officers. The promotees were clamouring for a higher proportion of posts in the cadre while the direct recruits were chafing against the seniority rule which gave prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there were no posts earmarked for them. Secondly, being promoted in very large numbers in a brief period from 1959 to 1962, they made further recruitment by promotion impossible in the years 1963, 1965, 1967 to 1970 because those who were promoted had to wait for their absorption under the quota rule for several succeeding years. We don't want to suggest that when these promotions were made on a mass scale, merit took the second place, but it cannot be ignored that those class II officers who, on merit, would have been normally considered for selection in 1963, 1965, and 1967 to 1970 could not be so considered because of the backlog of these unabsorbed promotees. 19. In the counter-affidavit filed by Mr. Mehra, Deputy Secretary to the Government, Ministry of Finance, dated August 31, 1973, the department has given a detailed account as to how, in pursuance of the direction of the court to frame a rule, it proceeded to frame the rule after consulting all interests and concerned authorities. The Government came to the conclusion on a just assessment of the situation that there could be only 4 alternatives before it which could form the basis of the new rule. Those four altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purposes of promotion as Assistant Commissioners, the blocks would have operated to do just the opposite. The whole situation is clearly illustrated in the affidavit filed by the department and we don't think that the department was wrong in not acceding to this contention of the promotees. 21. The seniority rule allocates 50% of the appointments to direct recruits and 50% to the promotees. That is undoubtedly a gain for the promotees. Learned Counsel for the direct recruits have complained against the erosion of their own ration in the service. At one time they manned 80% of the posts. Later the ratio was brought down to 66 1/2% and now by this rule it was brought down to 50%. They contended that recruitment of 50% promotees is quite unusual, and, therefore, Government, should have fixed a lower proportion for the promotees as it has done in other AH India Services. We do not think we can entertain this complaint. Direct recruits can have a grievance if after recruitment they are not properly treated. They cannot complain as if they are representatives of any particular section of the general public which is the source of recruitment. On the other hand, class II offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to persons promoted 2/3 years after they had joined the service. This discontent amongst the direct recruits was known to the Government. In the package deal suggested in the letter referred to above, Government had asked for the removal of this weightage. This element of weightage in the old seniority rule had given offence to the direct recruits, and it is obvious that in the interest of harmonious relations between the two wings of the service, Government, while increasing the proportion of promotees in the service, abolished weightage in their favour. 23. On account of haphazard promotions, especially, from 1959 onwards, it has happened that a direct recruit or promotee gains or loses several places in the new seniority list on a comparison with a list in which seniority is based on the date of joining service. But we think this cannot be helped. If hereafter care is taken in proper time to determine the vacancies to be filled in any particular year and lists of an equal number of direct recruits and promotees are kept ready, there will survive no serious ground for complaint, because all those in the lists will be appointed in the course of the year and will not face the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a certain age group and are bound to be younger than the promotees. In practically all All India Services, promotees don't always have an equal chance with the direct recruits in the matter of appointments to the highest posts. Those who are young may indeed reach the top. Promotees who belong to a higher age group have necessarily to pay the price and that is so in all services. On the other hand, however, we must remember that in all higher services, appointments are generally by selection and not merely on the basis of seniority in which case promotees with the necessary merit may well reach the top. In this connection it may be necessary to point out here that though the promotees of the 1960's lose some places to direct recruits, class II officers who were not promoted in the years 1963, 1965 and 1967 to 1970 but got their chances of promotion for the first time in 1971 will now get posts reserved for them in 1969. See for example serial No. 1354 of the new seniority list and onwards. All this is the result of haphazard promotions which were made in order to meet the demands of a suddenly expanding department without sufficient attention to the Rules in force. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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