Central Administrative Tribunal - Ahmedabad
S.D. Sharma And Ors. vs Union Of India (Uoi) And Ors. on 29 November, 2002
Equivalent citations: 2004(2)SLJ269(CAT)
JUDGMENT A.S. Sanghvi, Member (J)
1. The applicants ten in number are all IAS Officers promoted from the Gujarat State Civil Service Officers' cadre. They are aggrieved by the seniority given to them in the IAS cadre as well as the year of allotment assigned to them vide Notification dated 16th July, 1996 and communication dated 17th April 1997 and seek the direction against the respondent Nos. 1 and 2 to see that while implementing the judgment in TA/43 of 1986 their position in the IAS cadre shown on the basis of the select list of 1979 as well as December 1986/January 19/87 should not be affected or changed in any manner. This litigation is a fall out of the earlier litigations and therefore a brief history of the earlier litigations will have to be recorded to understand the question involved in this O.A.
2. The dispute of the seniority amongst the State Civil Service Officers had resulted into non-preparation of the select list for making appointment to the IAS cadre from the year 1974 onwards. The direct recruit Deputy Collectors and the promoted Deputy Collectors had moved the High Court agitating the question of their seniority and till 17th October, 1978, the State Government was not in a position to operate the seniority list prepared of the Deputy Collector and the Officers of the Gujarat Development Services Class 1 for appointment to IAS cadre. By an interim order of High Court dated 17th October, 1978, the State Government was directed to operate the seniority list. The State Government was directed to make appointments to the cadre post but no appointments were to be given to the IAS till the final outcome of the writ petition. Consequently in the appeal filed before the Supreme Court, it was clarified that the select list had to be prepared from year to year. The State of Gujarat had drawn two combined seniority list of the Officers of the State Civil Services, one in the year 1979 and the second in the year 1986. The select lists for the purpose of appointment by promotion to the IAS were drawn up on the basis of these two seniority lists. The first select list was drawn on the basis of 1979 combined seniority list clubbing all the vacancies from the year 1974 to 1979; while the second one was drawn up by clubbing all the vacancies from the year 1982 to 1986. Both the select lists were challenged before this Tribunal. The first one was challenged by Mr. V.P. Shah and N.P. Parikh by filing S.C.A. No. 918 of 1980 before the Hon'ble High Court which was subsequently transferred to this Tribunal and renumbered as T.A. No. 43 of 1986. The second list was challenged by Mr. V.H. Shah by filing O.A. No. 646/1986. Both the matters came to be decided separately and in T.A. No. 43 of 1986 decided on dated 2.2.1990, while quashing and setting aside the select list prepared, the respondents were directed to convene the Select Committee afresh and draw an year-wise select list on the basis of the vacancies to be calculated for each year and make appointments with reference to the rules and regulations in force prior to 1977. It was also directed that the Committee should consider the officers including the petitioners for inclusion in the select list for each year from 1974 to 1979 separately considered only those who come within the zone of consideration in the individual years adopting the procedure as per the regulations which stood prior to the amendment in 1977. The Special Leave Petition bearing No. 9969/90 filed against these orders was rejected by the Supreme Court stating that since the respondents had already retired from service they did not consider it fit to interfere. The State of Gujarat thereafter preferred M.A. No. 449 of 1992 before the Tribunal seeking clarification for implementation of the orders passed in the TA/43 of 1986. While disposing of the M.A. 449 of 1992 on 11.2.1993, the Tribunal directed that:
"(1) The claims of the two officials (original applicants) have to be considered only for the vacancies which arose in 1974 and thereafter and not for any vacancy which arose prior to 1974.
(2) The consideration should be done separately for each year keeping in view that the relevant provisions of the rules/regulations applicable to the vacancies of that year, as brought out in Para 7 of the original judgment.
(3) Weightage shall be given to the observations in Para 9 of the original judgment that granting relief to original applicants who have retired in 1982 and 1983 need not upset the position of the persons already selected and appointed".
3. O.A. 646 of 1986 filed by Mr. V.H. Shah also came to decided on the same lines by the Tribunal directing the respondents to prepare year-wise select list instead of resorting to clubbing of the vacancies. The judgment passed in the case of V.H. Shah was appealed before the Supreme Court by U.O.I. & Ors. by way of Civil Appeal No. 4786 of 1994 and in that appeal decided on 25th October, 1996, substituting the direction given by the Tribunal, the Supreme Court gave the following fresh directions:
(1) The number of vacancies falling in the quota prescribed for promotion of State Civil Service Officers to the service shall be determined separately for each year in respect of the period from 1980 to 1986.
(2) The State Civil Service Officers who have been appointed to the service on the basis of the impugned select list of December 1986/January 1987 and were senior to the respondent in the State Civil Service shall be adjusted against the vacancies so determined on year-wise basis.
(3) After such adjustment if all the vacancies in a particular year or years are filled by the Officers referred to in Paragraph (2) no further action need be taken in respect of those vacancies for the said year/years.
(4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional select list/lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year.
(5) If the name of the respondent is included in the notional select list/lists prepared for any particular year/years during the period 1980 td 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the service against that vacancy of that year with all consequential benefits.
(6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service Officers.
(7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned select list of December, 1986/January, 1987.
4. The official respondents implemented the directions of this Tribunal in TA 43/ 1986 and issued Notification dated 16th July, 1996 making appointment of 19 officers of the State Civil Service of Gujarat to the IAS on probation with effect from the dates noted against their names. Subsequently by another communication dated 17.4.1997, these officers were assigned seniority as well as year of allotment ranging from 1972 to 1974. The present petitioners are aggrieved by this Notification and assignment of the seniority to them. Their main contention is that the Notification issued is in contravention of the directions of the Tribunal in TA 43 of 1986 and also in contravention of the directions given by the Supreme Court in the case of V.H. Shah, According to them, they were not parties in TA 43 of 1986 and since they were already selected in 1979 and appointed to IAS, their position in the select list could not have been changed to their disadvantage. They also contended that the vacancies for which they were already selected and which they were occupying are now being allotted to the private respondents by the impugned order which is in direct breach of the Supreme Court Order/According to them, the Supreme Court had directed that notional promotion be granted to the officers when they were found eligible against vacancies in a particular year. The respondents had however considered, while preparing the regular select list, even those who were not before the Court and given appointment to them against the vacancies to which the applicants and others were already appointed. The notional select list was required to be prepared only for those who had approached the Tribunal and not for others. They were selected against the vacancies available as on 1.1.1979 and now by these impugned orders, the Government has offered these vacancies to those persons who had not approached the Tribunal. It was not required by the Government to consider other State Officers but the Government has selected all those who were within the zone of consideration and granted the benefit of the Court's order thereby disturbing the posts of those officers who were selected and appointed on the basis of 1979 and 1986 select lists. According to them, in view of this position, the Notification dated 16th July, 1996 as well as Communication dated 17th April, 1997 are required to be quashed and set aside.
5. During the pendency of the O.A. an amendment was carried out by the applicants in the O.A. and it is contended that when the Select Committee which met in June, 1979 for preparing the list of officers for appointment against the IAS cadre post, 41 posts reserved for that year were not taken into account and the select list was prepared on the basis of the availability of senior duty post. There were 19 senior duty posts under the State Government and 40% of the reserved posts came to 36. This had resulted into availability of 42 posts for promotion quota being 33.33 of the senior duty posts. However, the Government had taken into account only 42 vacancies. According to the applicants the total number of posts in promotion quota would come to 56 in place of 42 to which the promotions were actually given and if the number of posts in the promotion quota which comes to 56 from the year 1979 were considered, all of them would have got berth in IAS. They have relied on the decision of the Jabalpur Bench of the CAT in T. A. 81 of 1986 decided on 8th June, 1997, in support of their contention that the Central Deputation Reserved posts within the State are to be included for the purpose of granting promotion under Rule 9 of the IAS Recruitment Rules. According to them, the decision of the Jabalpur Bench had been accepted by the Central as well as by State Government. And the State of Gujarat has also accepted the same by issuing Notification dated 15.10.1993 (Annexure R-13). The ratio of the decision of the Jabalpur Bench is therefore required to be applied to the instant case also requires to be applied to the instant case also and the vacancies in the year 1974 to 1979 in the promotion quota requires to be recalculated and promotions given according to these recalculated vacancies.
6. The respondents have resisted the O.A. The respondent No. 1, Union of India, in their reply have stated that the appointments are made vide Notification dated 16.7.1996 to the I.A.S. cadre as well as seniority and the year of allotment assigned vide communication dated 17.4.1997. They have denied that any appointment to IAS cadre on the basis of the combined select list of 1979 was made in violation of the judgment of the Hon'ble Supreme Court. They have also contended that the judgment in TA/43/ 1986 of this Tribunal has become final with the dismissal of SLP No. 1996 of 1990 by the Supreme Court on 5.10.1990. According to them, once the judgment had become final the same cannot be assailed before this Tribunal. They have maintained that in pursuance to the directions of the Tribunal in TA 43 of 1986, the Selection Committee was held in the year 1993 and the year-wise select list for the year 1974 to 1979 were drawn up. The appointments were also made from these select lists. The two petitioners in the TA No. 43 of 1986 Mr. N.K. Parikh and V.P. Shah, were appointed vide Notification dated 2.1.1976 and the rest were appointed against the vacancies with effect from the years ranging from 1974 to 1979 vide Notification dated 16.7.1996. They have also contended that the zone of consideration of eligible, candidates is different from the combined select list and that the select list prepared on year-wise basis, included the some persons in the same order as in the combined select list. According to them in order to implement the judgment of the Tribunal in TA 43/1986, preparation of the year-wise select list was mandatory and therefore only those found fit for appointment were included in the select list and seniority determined on that basis. They have denied that the appointments made of the 19 officers on the basis of the year-wise select list was in violation of the direction of the Tribunal and have maintained that the appointments were made strictly in conformity with the judgment of the Tribunal. They have also raised a technical objection to the applicants' joining in filing this O.A. contending that the cause of action of all the applicants has occurred at different points of time and therefore each applicant has to file separate O.A. for redressal of his grievance. According to them such an application moved jointly by the applicants is not maintainable.
7. Respondent No. 2, the State Government, has also filed reply on the same lines. According to them in pursuance to the directions given by the Tribunal in TA/43/1986 the Selection Committee met on October 25, 26 and 29.9.1993 to prepare the select list of State Civil Service Officers for the years 1974 to 1979 for promotion to IAS cadre of Gujarat. In the said meeting the applicants along with the private respondents were also considered. Subsequent to the recommendations of the Committee, the respondent No. 1 had issued the Notification dated 2.1.1996 and 16.7.1996 appointing in all 21 Officers to the IAS. The position of the applicant No. 1 i.e. Mr. S.D. Sharma has not been upset which clearly suggests that in the preparation of the select list for the years 1976 to 1979, the directions of the Tribunal have been complied with. Mr. S.D. Sharma has been granted 1974 as his year of allotment having regard to his continued officiation in the cadre. It is also contended by the respondent No. 2 that out of the 21 promoted officers 19 officers were senior to Mr. S.D. Sharma. The applicant No. 1 has already retired from the service and hence there was no question of inter se seniority being affected. Applicant No. 1 has therefore no cause of action to file such an O.A. It is further contended by respondent that remaining nine applicants also cannot have any grievance against respondent Nos. 3 to 17 as all these respondents are senior to the applicants in the seniority list of the State Civil Service Officers. The respondent Nos. 3 to 17 have already retired from service. It is also contended by the respondent No. 1 that the final seniority list of the Gujarat. Administration Service as on 7.11.1974 prepared after taking into account and implementing the various decisions of the Gujarat High Court, Central Administrative Tribunal and Supreme Court and G.R. No. GAS/14789/G-1 dated 19.7.1986 has not been challenged by anybody and hence the same has become final. This being the position, the select list prepared on the basis of the seniority list of 1986 and keeping in view the letter and spirit of the directions of the Tribunal, the impugned order cannot be said to be illegal or invalid.
8. The private respondents in their reply have also maintained that the select lists were prepared in accordance with the directions given by the Tribunal and there was no reason to interfere with the select list prepared and the appointment made to the IAS by the Government. It was pointed out by them that the year of allotment in the case of Mr. S.D. Sharma was 1974. Before Notification and after issue of the Notification the year of allotment in the case of Mr. Sharma remained 1974 and therefore he cannot have any grievance. It is also contended by them that all other applicants are junior to Sharma and if the position of Mr. Sharma is not disturbed, the position of any other applicant is not disturbed and therefore all the other applicants cannot have any grievance. They have also contended that such a joint application on the part of the applicants is not maintainable.
9. We have heard the learned Advocates of both the parties at length and have carefully considered the rival contentions as well as the documents and the judgments cited at the Bar.
10. The main grievance of the applicants is against the fixation of their seniority in IAS cadre and the year of allotment assigned to them vide orders dated 16.7.1996 as well as 17.4.1997. Their main contention is that while giving them the date of appointment in I.A.S. as well as fixing their seniority, the directions of this Tribunal in TA/43/1986 are not kept in mind by the official respondents and the select list as well as the final seniority list in the cadre of IAS, are wrongly issued causing prejudice to the applicants. One of the arguments of the applicants was that none of the officers, who was not a party in TA 43 of 1986 was entitled to the benefits of the orders passed in that T.A. and that since the orders were restricted only to the benefits to the petitioners in TA 43 of 1986, the respondents could not have included other officers in the select lists and appointed them into the IAS. An attempt was also made to submit that in view of the Hon'ble Gujarat High Court's interim order in S.C.A. No. 1047 of 1978 no appointment to the cadre of IAS could have been made till the decision of the S.C.A. No. 1990 and as such the select lists prepared in the year 1979 could not have been challenged before the Tribunal.
11. nOW it is admitted position that because of the dispute of seniority amongst the promotee State Government Officers no seniority list could be prepared for appointment to the All India Services from 1974 onwards. When the matter came up before the Hon'ble High Court of Gujarat in S.C.A. No. 1407 of 1978, the High Court gave certain interim directions for preparation of the seniority list. It was inter alia directed that the State Government would operate combined seniority list for appointment to the ex-cadre post during the pendency of the litigation in the Court. It was also observed that the appointments made accordingly would, however, be expressly provisional and subject to the final outcome of the litigation in the Court. The State Government of Gujarat was directed to make appointments to the cadre posts from the said select lists but were restrained from giving appointment in IAS till the litigation ended in the Court. Clauses 6 and 7 of the directions given by the Hon'ble High Court are material for our purpose and are reproduced below:
"(vi) The State Government will make appointments to cadre posts from the said select list but those officers will not be given appointment in IAS till this litigation ends in this Court.
(vii) For the purpose of determining seniority under Rule 3 of the Indian Administrative Service (Regulation of seniority) Rules, 1954, only legal continuance officiation will be taken into account and the officers in select list will not be entitled to the benefit of illegal officiation, that is to say, if these petitioners in Special Civil Application No. 1407 of 1978 succeed and as a result thereof it is found that the person selected and appointed to cadre posts could not have been so appointed, their officiation in such post will not be taken into account for the purpose of determining their seniority."
12. It is not in controversy that in pursuance of these directions, seniority list was prepared by the State Government and the same was published and operated by the State Government for giving appointment to the ex-cadre post. After the SCA was decided by the Hon'ble High Court in 1980 in appeal bearing No. 2359 of 1980, the Supreme Court, with the consent of the parties, gave interim directions to the effect that the State Govt. Of Gujarat was allowed to operate the combined seniority list prepared in accordance with the terms of Paras (i) and (ii) of the Order dated 13th October, 1978 of the High Court of Gujarat for making appointments to ex-cadre posts and also to operate the select lists prepared on the basis of the said combined seniority list on the express understanding that all the conditions laid down in the order dated 13th October, 1978 of the High Court of Gujarat shall be carried out when the dispute between the parties herein is finally decided by this Court. Subsequently, the Supreme Court permitted the State Government of Gujarat to make appointments in the IAS from the select list prepared. However, when the select list was prepared and appointments to the IAS were made, two officers Mr. V.P. Shah and N.P. Parikh, who were in the seniority list but, were not included in the select list challenged the select list and then non appointment to the IAS by filing SCA 918 of 1980 before Gujarat High Court which was subsequently transferred to Tribunal and renumbered as TA/43 of 1986. Their main contention was that the select list was prepared not considering the year-wise vacancies but by clubbing the vacancies and as such, the select list was illegal and the appointments from this select were also required to be quashed and set aside. While allowing the TA/ 43/1986, this Tribunal held that the select list prepared by the Committee at its meeting held in 1979 under Regulation of the IAS (Appointment by Promotion) Regulations, 1955 is in valid to the extent that the case of the petitioners have not been properly considered on account of the illegal clubbing of vacancies and enlarging the zone of consideration and also by adopting the provisions of IAS (Appointment by Promotion) Regulations as amended in the year 1977 in regard to vacancies which arose prior to the amendment. The Tribunal also directed the respondents to convene the committee afresh and to consider the officer including the petitioners for including in the select list for each year from 1974 to 1979 separately, considering only these who would have come within the zone of consideration in the individual years, adopting the procedure as per the regulations which stood prior to the amendment in 1977 for vacancies which arose prior to the date on which the amendment took effect to consider the petitioners suitability and to appoint them into the Indian Administrative Services, if they were found suitable in any of the years notionally and to give them all consequential benefits arising out of such appointment. An appeal preferred before the Supreme Court against this order was rejected. Indisputedly after the clarification given by this Tribunal in MA/449/1992, the State Government of Gujarat has prepared afresh select list purporting to act as per directions of this Tribunal. When these directions are considered in the light of the directions given by the Hon'ble High Court on 17th October, 1978, in Civil Application No. 2440 of 1978 in SCA 1047 of 1978, it becomes quite obvious that the select list of 1979 having been prepared against the provisions of the Regulation of the IAS (Appointment by Promotion) Regulation, 1955, being invalid and also held to be invalid, the officers appointed on the basis of these select lists cannot claim seniority in the IAS cadre and also more specifically in view of the specific directions of the High Court that their officiation on such posts will not be taken into account for the purpose of determining their seniority. Furthermore, the submission that only the petitioners of TA/43/1986 were required to be considered by the respondents for inclusion in the select list and no other officer could have been considered for inclusion in the select list also falls to the ground, in view of the directions given in that behalf by the Tribunal. The operative portion of the Tribunal's order reads as under:
"We direct the respondents to constitute the Committee afresh and to consider the officer including petitioners for inclusion in the select list for each year from 1974 to 1979 separately, considering only those would have come within the zone of consideration in the individual years adopting the procedure as per the regulations which stood prior to the amendment in 1977 for vacancies which arose prior to the date on which the amendment took effect to consider the petitioners suitability and to appoint them into the Indian Administrative Service, if they are found suitable in any of the years notionally and to give them all consequential benefits arising out of such appointment".
These directions leave no room for doubt that all the officers falling within the zone of consideration were to be considered and petitioners were to be included with those officers. Hence we find that there is absolutely no substance in the submission that while preparing afresh the select list, respondents were required only to consider the two petitioners of TA 43/1986 and none other.
13. As regards the grievance of the applicants that their position in the select list was not to be disturbed and their seniority ought to have been retained in view of the directions given by the Tribunal in M.A. 449/1992, we find that the applicants have not demonstrated as to how they are aggrieved by the impugned orders. Applicant No. 1 Shri S.D. Sharma was allotted originally the allotment year 1974 and no difference has been made in his year of allotment in the impugned orders. Similarly, applicant Nos. 2, 3 and 4 i.e. S/Shri Anil Joshi, S.K. Saiyad and N.C. Dave were given the year of allotment as 1974, 1974 and 1976 respectively and in the impugned orders also the same year of allotment is given to them.
14. Mr. M.S. Rao for the respondents have vehemently submitted that all the petitioners are not aggrieved by these orders and the four petitioners are misjoined as parties. He has also taken objection to the petitioners joining in filing this O.A. and has submitted that since no leave is granted by this Tribunal to permit them to file a joint petition, the same should be rejected on this ground alone. In support of his submissions Mr. Rao has relied upon the decisions in the case of P. Radhakrishna Naidu and Ors. v. Government of Andhra Pradesh and Ors. and Syed Burhan and Ors. v. Government of Andhra Pradesh and Ors., AIR 1977 SC 854 as well as the case of Patel Chandubhai K. and Ors. v. State of Gujarat and Anr., Vol.XVI G.L.R. page 368. In the case of P. Radhakrishna Naidu, the Supreme Court while referring to the joint petition has made following observations in Para 14 of the judgment:
"Further it has to be observed that in the present writ petitions several petitioners have combined as petitioners. Their causes of action are separate and independent. Each is alleged to be an instance of individual assertion of constitutional right in regard to facts and circumstances of each case. Where several petitioners combine for alleged violation of their rights, it is difficult for Court to go into each and every individual case......"
15. In the case of Patel Chandubhai K. and Others, the Gujarat High Court while dealing with the situation has observed that when there are more than one petitioners having common facts to urge and raising common questions of law for the decision of the High Court in a writ petition, a common writ petition can be filed by them. Unless, therefore, all the petitioners who have joined in the writ petition have common facts to urge, common points of law to argue and common reliefs to claim, they cannot file a common writ petition.
16. When the ratio of these two decisions is applied to the facts of the present case, it would appear that applicant Nos. 1 and 4 are misjoined as parties as their grievance cannot be said to be the same as that of the other applicants. However, since, the select list of 1979 was revised pursuant to the directions of this Tribunal and then a fresh select list was notified as per order dated 16th July, 1996 and this select list has been challenged by all the petitioners on a common ground that while preparing the select list, the directions of this Tribunal were not complied with, we are not inclined to reject the petition on the ground of misjoinder of the parties.
17. We, however, find that much ado is made about the directions of the Tribunal not being followed by the respondents while preparing a fresh select list and making appointments to the IAS vide Notification dated 16th July, 1996 and allotting the year to the officers nominated in IAS vide communication dated 17th April, 1997. It was vehemently argued that in Para 9 of the judgment, the Tribunal had expressly directed that while preparing the fresh select list, position of the persons already selected and appointed need not be upset. According to them, these directions were reiterated by the Tribunal again in M.A. 449/1992 preferred by the respondents for clarification and it was directed that weightage shall be given to the observations made in Para 9 of the original judgment that granting relief to the original applicants who have retired in 1982-1983, need not upset the positions of the persons already selected and appointed. It was urged by the learned Advocate for the applicants that these directions required the respondents not to alter or modify the positions of the applicants and they were to be given the same seniority as they were given in the earlier select list.
18. It appears that some thing more than what was directed by this Tribunal is sought to be urged in that directions. It is a settled position of the interpretation of the statues as well as clauses, that no sentence or clause should be read in isolation and out of context. When we read the directions given in Para 9 of the judgment in the context of the observations of the Tribunal in the same para, it becomes quite apparent that the Tribunal never meant or never intended to say that the seniority of the applicant in the earlier select list of 1979 should be maintained or should not be disturbed. The relevant observations of the Tribunal in Para 9 are as under:
"........The petitioners have been made to compete with persons who could not have come within the zone of consideration, if the vacancies for each year had been separately considered. So to that extent, the list will have to be held not valid, but both the petitioners must have by now retired from service because the first petitioner was born on 3.8.1925 and the second petitioner was born on 12.7.1924 as is seen recorded in the seniority of Gujarat Administrative Service Officers at Annexure-A. Therefore, granting of relief to the petitioners need not upset the position of the persons already selected and appointed. Even if the officers have retired from service, they would be entitled to the benefits including the retirement benefits as per the Indian Administrative Service, if they were properly considered and found suitable for appointment".
19. These observations clearly imply that while granting relief to the petitioners therein, care should be taken to see that the persons already selected and appointed should not be reverted back. The position of the persons already selected and appointed can easily be interpreted to mean that their position as IAS appointee should not be disturbed. The Tribunal had made it amply clear that while preparing a fresh select list and making appointment to the IAS from that select list, regulation of the IAS (Appointment by Promotion) Regulation, 1955 and the relevant rules in this regard should be considered. It can hardly be denied that while giving such directions, the Tribunal was very much aware that by preparation of the year-wise select list, the officers who were not included in the earlier select list would also be considered coming within the zone of consideration and that some change in the original select list was imminent. Hence it is absoutely futile to say that the Tribunal while giving directions of not upsetting the position of the persons already selected and appointed, meant that the seniority of the persons already selected in the earlier select list should be maintained.
20. Similar directions were also given by the Supreme Court in the case of Union of India and Ors. v. V.H. Shah, in C.A. No. 4786 of 1994. As narrated earlier, the select list prepared of 1986 was challenged by V.H. Shah and Others before this Tribunal by filing O.A. 646/1986 and after similar directions were given by this Tribunal in their case also the matter was taken to the Supreme Court by way of appeal. While disposing of the appeal, substituting the directions given by the Tribunal, the Supreme Court directing the State Government of Gujarat to prepare a fresh select list year-wise, the inter alia directed as under:
1. The number of vacancies falling in the quota prescribed for promotion of State Civil Service Officers to the service shall be determined separately for each year in respect of the period from 1980 to 1986.
2. The State Civil Service Officers who have been appointed to the service on the basis of the impugned select list of December 1986/January 1987 and were senior to the respondent in the State Civil Service shall be adjusted against the vacancies so determined on year-wise basis.
3. After such adjustment if all the vacancies in a particular year or years are filled by the officers referred to in paragraph (2), no further action need be taken in respect of those vacancies for the said year/years, 4 But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional select list/lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on, the basis of the vacancies of the particular year.
5. If the name of the respondent is included in the notional select list/lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the service against that vacancy of that year with all consequential benefits.
6. The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service Officers.
7. Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned select list of December 1986/January 1987.
21. These directions of the Supreme Court in similar and identical case leave no room for doubt that what was protected in respect of the persons already appointed in the select list was their appointment and not their seniority. It can easily be seen that a fresh select list could not have been prepared under the regulations prevailing for the period from 1974 to 1979 without disturbing the seniority of the persons already empanelled in the invalid select list. While preparing the year-wise select list the zone of consideration would have been much less than the one which was adopted by club-bing of the vacancies. Further more, prior to 1977, in view of the unamended regulations, appointment was to be made on the basis of the seniority-cum-merit, and hence change in the seniority of the officers included in earlier invalid select list and the fresh select list was imminent. The petitioners could have some grievance if their appointment to the IAS cadre had been affected but they cannot be heard to raise the grievance of their seniority having been altered by virtue of the preparation of the fresh select list and the appointments made to the IAS vide Notification dated 16th July 1996. In fact we find that no material is brought out on record by the petitioners to show what was their seniority in the invalid select list of 1979 and how their seniority is disturbed in the fresh select list prepared as well as the appointments made vide Notification dated 16th July, 1996 and communication dated 17th April, 1997. In any case, we find that when the select list of 1979 was held invalid as de hors the rules and regulations, by the Tribunal, the appointments made from that select list also becomes invalid. However, since the appointees from the select list were not before the Tribunal, the Tribunal had thought it fit to protect their appointments and given the directions not to upset their appointment. However, the petitioners cannot claim seniority on the basis of that invalid select list. They can claim seniority only when they are empanelled in the fresh valid select list by the Selection Committee in accordance with the recruitment rules. In the case of Syed Khalid Rizvi and Ors. v. Union of India and Ors., 1993 Supp (3) SCC 575, the Supreme Court has laid down that a promoted officer appointed temporarily under Rule 8 of Promotions Regulations and Rule 9 of Cadre Rules to ex-cadre post does not get service counted towards the seniority. Seniority would be counted only from the date on which he/she was brought into the select list by the Selection Committee in accordance with the recruitment rules, promotions, regulations and seniority rules and approved by the UPSC, appointed under Rule 9 of Recruitment Rules and Regulation 9 of Promotion Regulations, and has continuously officiated without break, seniority would be entitled from the date of the select list or continuous officiation which ever is later.
22. It is also observed by the Supreme Court that the period of their continuous officiation prior to the date of inclusion in the select list would be treated as invalid and hence year of allotment cannot be assigned from the date of the initial appointment. These observations of the Supreme Court are very much applicable to the facts of the instant case. The petitioners are not entitled to claim seniority on the basis of their inclusion in the invalid select list or on the basis of their appointment in the IAS protected by this Tribunal on technical grounds. We therefore do not find any merit or any substance in the averments that Notification dated 16th July, 1996 and subsequent communication dated 17th April, 1997 do not comply with the directions of this Tribunal and deserve to be quashed and set aside. We reject the said contention.
23. Another dimension is also added to these cases by amendment to the O.A. incorporating that while considering the available vacancies for appointment by promotion, the Government had not considered the post in the internal deputation reserve. Relying on the decision of Jabalpur Bench rendered in TA 81 of 1986 delivered on 9th June, 1987, the petitioners have contended that while calculating available vacant posts, the internal deputation reserve post were required to be included and if that had been done, there would have been 56 vacancies available for promotees quota instead of 42 and would have facilitated the petitioners to get the appointment to the IAS from a much prior year of allotment than the present one. It is submitted by the learned Counsel for the petitioners that the judgment of Jabalpur Bench has become final as the same was not quashed by the Supreme Court and accepted by the Government also. Other Benches of the Central Administrative Tribunal also have given similar directions and the State of Gujarat also vide Notification dated 21st April, 1980 intimating the total strength on the basis of the deputation reserve as at 22.5%, having accepted this view, according to the learned Counsel for the respondents are required to be given the same benefit retrospectively so that the benefits of the increase number of vacancies can be given to the petitioners.
24. The Jabalpur Bench of this Tribunal in the case of A.K. Goswami and Anr. v. Union of India, State Government of Madhya Pradesh and Anr., in T. A. 81/86 has held that internal deputation reserve listed at Item 5 of the schedule under the cadre's strength regulation has to be included in the promotion quota. The decision of the Jabalpur Bench as well as decision of the Calcutta Bench and Chandigarh Bench were noted by the Supreme Court in the case of Tamil Nadu Administrative Service Officers Association and Anr. v. Union of India and Ors., AIR 2000 SC 1898 in Para 25 of the judgment and has laid down as under:
"25. The petitioners further contend that similar relief was granted in the case of applicants who filed original applications before the Jabalpur and Calcutta Benches of the Central Administrative Tribunal, and there is no reason why the petitioners should be denied such benefits. The Union of India has explained in the counter affidavit that those are isolated cases where promotions were given on the basis of the directions issued in the original applications as well as contempt petitions, and the same should not be treated as a binding precedent in every other case. We notice that as per the statutory provisions, the encadring of posts can be done only on certain fact situations existing and further it will have to be done on a review to be conducted by the Central Government in consultation with the State Government and on being satisfied that an enhancement in the cadre strength or encadring of certain posts is necessary in the administrative interest of the States concerned. Until such encadrement takes place, nobody including the petitioners could stake a claim to consider their case for promotion to those ex-cadre posts. Therefore, such right to be considered for promotion, in our considered view, would arise only from the date of encadrement which having been done with effect from 1998 only, we do not think that as a matter of right the petitioners are entitled for retrospective seniority".
25. These observations of the Supreme Court are direct answer to the averments of the applicants. Even if the deputation reserved posts are included in computing the vacancies in the promotion quota by the State Government in 1980, the same cannot be directed to be given retrospectively. It was submitted by the learned Counsel for the applicants that the respondents could be directed to review the strength of the cadre. Reliance was placed on the case of S. Ramanathan v. Union of India and Ors., 2001 SCC (L&S) 340=2001(2) SLJ 293 (SC), wherein the Supreme Court had directed the Union Government as well as the State Government to reconsider the question of the date of commencement of promotion of State cadre officers to IPS on the basis of the re-determined strength of the cadre treated to be in the year 1989 and to grant them relief, if any, found available on such reconsideration. We are not inclined to give such direction in the instant case for the simple reason that there is no material available on record to show that when such review of the strength of the cadre was undertaken by the State Government and also that this is not a case pleaded in the O.A. Further more, as observed earlier, review in the cadre strength will have no effect on the seniority of the petitioners in IAS cadre as their seniority has to be considered from the date their names were included in the select list or from the date they were appointed in the IAS whichever is later.
26. It was brought to our notice by the learned Counsel for the applicant that in October 1994, the Government of India had undertaken an exercise to relax the provisions of Seniority Rules under Rule 3 of the A.I. S. (Conditions of Service Matters) Rules, 1960 for assigning the promottee IAS Officers higher year of allotment in IAS and had issued a Memorandum to that effect, calling for the representations in writing against a proposal, from the direct recruits also. This Memorandum was challenged by some direct recruit IAS Officers by filing OA 108 of 1995 and OA 162/1995 before this Tribunal. The Tribunal while disposing of these O.As on dated 26.4.1995 had given directions to issue a notice afresh to the applicants private respondents therein and other officers who may be affected and to confer an opportunity of making representations and if necessary by given an opportunity of hearing to issue a fresh notice. According to the learned Advocate of the petitioners, such a direction was not necessary as the direct recruits IAS officers have no locus standi to challenge the higher seniority given to the promotees and this view is taken by the Gujarat High Court in the case of D.S. Narve, Dy. Conservator of Forests v. Jagdishprasad, 3rd Special Land Acquisition and Ors., 2002(1) G.L.H. 316, the Gujarat High Court has laid down that when direct recruits have no locus standi to challenge basic order of appointment made from promotion quota, consequently seniority cannot be challenged. The directions given by this Tribunal in OA 108 of 1995 and OA 162 of 1995 have not been challenged before the High Court or the Supreme Court and they have become final. We cannot sit in appeal against these directions. The Government was, therefore, bound to comply with these directions. We are, however, told that no actions have been taken by the Union Government or the State Government of Gujarat and it was requested that the Memorandum issued in October, 1994 be directed to be implemented.
27. When the Union Government had already considered the question of relaxing the provisions of the Seniority Rule under Rule 3 of the A.I.S. (Conditions of Service Residual Matters) Rules, 1960, for assigning the promotee IAS Officers higher order of allotment in IAS, the same ought to have been brought to a logical conclusion after the directions were given by this Tribunal. We are not aware whether the Govt. of India has issued fresh notices as directed in OA 108 of 1995 and OA 162 of 1995. But since the grievance of the applicants still persists and considering that Court's directions were given on the date 26.4.1995, we deem it fit to remind the Govt. of India the necessity to take urgent steps to decide the representation of the promotee IAS Officers for assigning them higher year of allotment in IAS at the earliest. We expect that this exercise shall be undertaken immediately and a decision on the representation of the promotee IAS officers shall be taken as soon as possible but not less than six months from the date of receipt of a copy of this order.
28. For the reasons discussed above, all other prayers of the applicants/petitioners have been rejected and the O.A. is dismissed so far as these prayers are concerned. No orders as to costs.