TMI Blog1975 (9) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents Nos. 2 to 24 were placed at serial Nos. 214 to 236. The appellants are placed in the Gradation List at serial Nos. 273 to 280. The appellants challenge the seniority of the respondents in the Gradation List. 5. On 2 December, 1957 the Mysore Administrative Service (Recruitment) Rules 1957 hereinafter referred to as the 1957 Recruitment Rules framed under Article 309 of the Constitution came into force and the previous Rules were superseded. Under the 1957 Recruitment Rules Class I posts were divided into two categories. One was the senior scale post and the other was the junior scale post. The junior scale posts were to be filled up in the proportion of 66-2/3 percent by promotion from Class II Officers and 33-1/3 percent by direct recruitment by competitive examination to be held by the Public Service Commission. 6. By notification dated 23 January, 1958 issued under Article 309 of the Constitution the Governor constituted the Mysore Administrative Service (Cadre) Rules with effect from 1 November, 1956 hereinafter referred to as the Cadre Rules. The cadre consisted only of permanent posts comprising 12 Senior Scale Posts and 135 Junior Scale Posts. The Cadre did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed for direct recruits. The advertisement referred to 20 vacancies for the posts of Assistant Commissioners Class I and two vacancies for Assistant Controllers in the State Accounts Service. These vacancies for direct recruits had arisen during the period immediately prior to the issue of the notification. These vacancies arose between 2 December, 1957 when the 1957 Recruitment Rules came into existence and 11 September, 1959 when the 1959 Probationers Rules came into force. The notification made it clear that the appointment of probationers by direct recruitment was subject to the 1957 Recruitment Rules, the Mysore Government Servants Probation Rules, 1957, and the 1959 Probationers Rules. The Public Service Commission conducted the competitive examination and selected 17 among respondents Nos. 2 to 24 for appointment as Assistant Commissioners Class I (Junior Scale) on probation. It may be stated here that the other six respondents were allotted to the service as a result of Judgment of this Court. There is no dispute that all the 23 persons being respondents Nos. 2 to 24 are treated as direct recruits. 11. Respondents Nos. 2 to 24 were appointed on probation by Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees filled up all the vacancies permanent or temporary. 15. The second contention of the appellants was that the respondents (who ?) were directly recruited as Assistant Commissioners on 26 October 1962 against temporary vacancies created with effect from 26 October, 1962 are not entitled to claim seniority over the appellants who had been promoted earlier than them and whose promotion was within the quota of 59 vacancies. 16. The third contention was that the direct recruits were not entitled to count their seniority from a date anterior to the date of their recruitment by taking advantage of the fact that the vacancies required to be filled up by direct recruitment had not been actually filled up by direct recruitment, but had been filled up actually by promotion. 17. The fourth contention was that all the Assistant Commissioners who were directly recruited or promoted to the posts of Assistant Commissioners formed one class and their inter se seniority in the cadre of Assistant Commissioners has to be determined on the basis of length of service rendered by them in the category in Order to have equality. 18. The fifth contention was that the respondents who were appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncies on two-thirds and one-third basis respectively in accordance with the 1959 Probationers Rules which came into existence on 11 September, 1959. The substantive vacancies which arose between 26 October, 1964 up to 10 September, 1965 have been classified as direct recruitment and pro motional vacancies on two-thirds and one-third basis respectively in accordance with the 1959 Probationers Rules which continued to be operative up to 11 September 1965. From 11 September, 1965 to 8 October, 1971 the quota for direct recruitment became one third and for promotional vacancies it was two third. 22. The contention of the appellants that the respondents were recruited to temporary vacancies is wrong for these principal reasons. 23. First, the cadre here consists only of permanent posts. The cadre does not consist of any temporary post. The total number of vacancies between 2 December, 1957 and 10 September, 1959 were 59. Under the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota. There was however no direct recruitment during that period. Again, between 11 September, 1959 and 10 Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmed as a full member of the service' at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as a probationer. This Rule excludes temporary posts from the cadre. It is, therefore. impossible to hold that the direct recruits were temporary employees outside the permanent cadre of the service, 27. Counsel on behalf of the appellants contended that the quota rule applies to vacancies in all posts, whether permanent or temporary and relied on the decisions of this Court in Bishan Sarup Gupta v. Union of India AIR1972SC2627 ; G. R. Luthra v. Lt. Governor, Delhi, [1975]1SCR974 and A.K. Subraman v. Union of India (1975)ILLJ338SC . In all these cases the cadre comprised of both permanent and temporary posts. In Bishan Sarup's case (supra) the cadre consisted of permanent and temporary posts. In Luthra's case (supra) cadre post as defined in the Rules includes a temporary post. In Subraman's case (supra) it was said that a cadre might consist only of permanent posts or sometimes also of temporary posts. In the present case, Rule 9 of the Probation Rules of 1957 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotted the Junior Duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the subsequent period commencing from 2 December, 1957 to 10 September, 1959. 31. Persons Nos. 1 to 164 in the Gradation List consist of persons who were allotted under the States Reorganization Act on 1 November, 1956. The ranks of those 164 persons were determined in accordance with the final inter-State Seniority List. Persons Nos. 165 to 184 are promotees who were allotted to substantive vacancies arising from 1 November, 1956 to 1 December, 1957 on the basis of their continuous service in the cadre. There was no quota rule for the period 1 November, 1956 to 1 December, 1957. Therefore, neither the promotions of those persons nor their relative seniority can be disturbed. 32. Persons Nos. 185 to 213 are promotees. Persons Nos. 214 to 236 are direct recruits. Persons Nos. 237 to 280 are also promotees. From 2 December, 1957 when the 1957 Recruitment Rules came into existence till 10 September, 1959 when the 1959 Probation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case AIR1972SC2627 it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year. 37. Two principles are established in the decisions referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be. absorbed depriving the other group of quota. 38. In Bachan Singh v. Union of India (1972)IILLJ44SC. the two appellants were promoted in the years 1958 and 1959. The respondents were appointed by direct recruitment in 1962, 1963 and 1964. The respondents were confirmed in their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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