Delhi High Court
Union Of India And Another vs B.S.Madhav Rao And Others on 26 October, 2021
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Talwant Singh
$-J-1 & 2
+ IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on 05.08.2021
Judgement pronounced on 26.10.2021
+ W.P.(C) 5029/2012
RAJENDER MOHAN SAXENA AND ORS .....Petitioners
Through: Ms Harvinder Kaur Oberoi,
Adv.
versus
UNION OF INDIA AND ANR .....Respondents
Through: Mr R.V. Sinha, Senior Central
Government Counsel with Amit
Sinha, Junior Central
Government Counsel
+ W.P.(C) 6422/2020 & CM APPL. 22724/2020
UNION OF INDIA AND ANOTHER .....Petitioners
Through: Mr R.V. Sinha, Senior Central
Government Counsel with Mr
Amit Sinha, Junior Central
Government Counsel
versus
B.S. MADHAV RAO AND OTHERS ......Respondents
Through: Ms Harvinder Kaur Oberoi,
Adv.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE TALWANT SINGH
RAJIV SHAKDHER, J:
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TABLE OF CONTENTS
Preface ....................................................................................................................... 2
Background ................................................................................................................ 5
Submissions on behalf of MOSPI and DoPT .......................................................... 13
Submissions on behalf of the employees ................................................................ 16
Analysis and reasons ............................................................................................... 21
Conclusion ............................................................................................................... 60
Preface:
1. Although the above-captioned writ petitions are directed against
two separate judgements of the Central Administrative Tribunal [in
short 'the Tribunal"], they concern the same issue. W.P.(C.)
6422/2020 has been preferred by the Union of India (UOI) along with
the Department of Personnel & Training (DoPT) against the
judgement dated 30.04.2019 rendered by a Full Bench of the Tribunal,
in O.A. No.4320/2012. Insofar as W.P.(C.) 5029/2012 is concerned,
this is being instituted to assail the judgement dated 31.05.2012
rendered by the Division Bench, comprising the then Acting
Chairperson and Member, in O.A. No.3984/2011.
2. In effect, the respondents in W.P.(C.) 6422/2020 and the
petitioners in W.P.(C.) 5029/2012 are employees of the Indian
Statistical Service (ISS)[hereafter, collectively referred to as
'employees'], who contend that the vacancies in the grade of Junior
Time Scale (JTS) and Senior Time Scale (STS) for the period
spanning between 1997-98 and 2004-05 should be filled up, as per the
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Indian Statistical Service Rules, 1961 [in short "1961 Service Rules"]
prevalent on the date, when the vacancies arose. In other words, the
1961 Service Rules, which were amended on 14.09.2005, should not
be applied to vacancies arising in the grade of JTS and STS before
14.09.2005.
3. As indicated above, the employees contend that the unamended
1961 Service Rules should apply for vacancies, which arose between
1997-98 and 2004-05.
3.1. This contention of the employees did not find favour with the
Division Bench of the Tribunal that rendered the judgement dated
31.05.2012, and hence, came to be assailed by the employees, via
W.P.(C.) 5029/2012.
3.2. It is only because another set of employees approached the
Tribunal, a Bench of the Tribunal, which disagreed with its judgement
dated 31.05.2012 in O.A. No.3984/2011, delivered by another Bench,
referred the matter to a larger Bench, vide order dated 18.12.2018. It
is because of this reference that, the then Chairperson of the Tribunal
constituted a Full Bench, which resulted in the passing of the
judgement dated 30.04.2019. Since the UOI and DoPT are aggrieved
by the judgement dated 30.04.2019, they have assailed the same, via
W.P.(C.) 6422/2020.
3.3. Thus, the two judgements of the Tribunal, which relate to the
same issue, have reached a different conclusion.
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4. The Full Bench of the Tribunal, vide judgement dated
30.04.2019, has, inter alia, held that the unamended 1961 Service
Rules would apply qua allocation of vacancies arising between 1997-
98 and 2004-05, between direct recruits and promotees, while an
earlier Division Bench of the Tribunal comprising of the then Acting
Chairperson and the Member have ruled to the contrary. In reaching
this conclusion, the Division Bench of the Tribunal has relied upon the
judgement of the Supreme Court rendered in R.K. Sabharwal &Ors. v.
State of Punjab &Ors. (1995) 2 SCC 7451.
4.1. The Full Bench, on the other hand, has relied upon the later
judgement of the Supreme Court rendered in the State of Punjab
&Ors. v. Dr R.N. Bhatnagar &Anr. (1999) 2 SCC 3302, which
distinguished the judgement of the Supreme Court rendered in the
R.K. Sabharwal case.
4.2. According to the Full Bench of the Tribunal, the Division
Bench, which rendered the judgement dated 31.05.2012, committed an
error in allocating the vacancies for the period in issue i.e., between
1997-98 and 2004-05, as the judgement of the Supreme Court in Dr
R.N. Bhatnagar case was not noticed. In a nutshell, the Full Bench of
the Tribunal was of the view that the ratio of the Supreme Court
judgement in R.K Sabharwal case was wrongly deduced, as, nowhere
in the said judgement, there was any discussion about the allocation of
1
In short "R.K. Sabharwal case"
2
In short "Dr R.N. Bhatnagar case"
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the posts, between promotees, on the one hand, and direct recruits, on
the other.
Background:
5. Before we proceed further, it would be relevant to give the
background in which the above-captioned petitions came to be
instituted.
6. The employees were initially inducted, via the direct
recruitment route, against the statistical functional post (Group-B) in
various participating ministries and departments of the Government of
India. These posts were recognised as feeder posts for promotion to
Grade-IV in ISS. The employees, having worked for the periods
ranging between 12 to 17 years in Group-B posts, were promoted to
the JTS/STS between 2004 and 2011; although MOSPI/DoPT claim
that promotions took place between 2006 and 2011.
6.1. Up until 14.09.2005, the promotion to JTS/STS i.e., Grade-IV
in ISS was governed by the unamended 1961 Service Rules.
6.2. As per the unamended 1961 Service Rules, the vacancies
arising in Grade-IV were allocated in 60:40 ratio i.e., 60% were
required to be filled up via direct recruitment, while the remaining
40% had to be filled up through promotion, based on selection, from
amongst officers serving in various participating ministries and
government departments in the statistical functional post (Group-B).
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6.3. The unamended 1961 Service Rules were notified for the first
time, on 01.11.1961. The judgement in the R.K. Sabharwal case was
rendered on 10.02.1995.
6.4. The pitch was queered with the issuance of the Office
Memorandum (OM) dated 02.07.1997, by the DoPT. This was
followed by, as noticed above, an amendment being brought to the
1961 Service Rules, on 14.09.2005. With this amendment, inter alia,
it was provided that, wherever the expression "vacancies" occurs, the
expression "posts" will be substituted. The amendment brought about
in Rule 8(1) of the 1961 Service Rules reads, as follows:
"(2) In the said rules, in rule 8, -
(a) in sub-rule (1) and sub-clause (i) of clause (a), for the word
"vacancies", wherever they occur, the word "posts" shall be
substituted.
(b) in sub-rule (1), -
(i) In clause (a), for sub-clause (ii), the following sub-
clause shall be 'substituted, namely;
(ii) 40 percent of the posts in the Junior Time Scale shall be
filled by selection from amongst officers belonging to the
Subordinate Statistical Service in the pay scale of Rs.6500-200-
10500. The promotion shall be made by selection from amongst
those who have completed at least five years of service on a
regular basis in these posts including service rendered, if any, in
the Non-Functional scale of Rs.7450-225-11500, by the
Controlling Authority on the recommendations of Departmental
Promotion Committee headed by Chairman/Member, Union
Public Service Commission:
Provided that if any junior who has completed five years
eligibility service is being considered for selection for
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appointment against these vacancies all persons senior to him in
that office would also be considered provided they are not short
of the requisite eligibility service by more than half of such
eligibility service or two years, whichever is less, and have
successfully completed their probation period on promotion to
next higher grade along with their juniors who have already
completed such eligibility service."
(Emp
hasis is ours)
6.5. It is the employees' case that, the promotee quota of vacancies
in JTS Grade-IV of ISS for 1993-1994, 1994-1995, 1995-1996 and
1996-1997 was calculated, as per the unamended 1961 Recruitment
Rules.
6.6. It is pertinent to note that, in the interregnum, the Ministry of
Planning and Programme Implementation (Department of Statistics)
[now, known as Ministry of Statistics & Programme Implementation
(MOSPI)], in exercise of its powers under Article 309 of the
Constitution, issued a gazette notification dated 23.12.1997, whereby
it amended sub-clause (ii) in clause (a) in sub-rule (1) of Rule 8 of the
1961 Service Rules. The amendment in the said rule was brought
about to the extent that, the residency period in the feeder post was
scaled up from four years to seven years.
6.6(a) This limited amendment was made, despite the OM dated
02.07.1997, issued by the DoPT, in the wake of the judgment rendered
by the Supreme Court in R.K. Sabharwal case, as noticed above. Via
this OM, an attempt was moved to move from "vacancy" based roster
to "post" driven rosters.
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7. It appears, in the intervening period, some other employees
approached the Tribunal for issuance of directions to the
MOSPI/DoPT for preparation of yearly select panels in Grade IV of
ISS for the period spanning between 1996-97 and 2002-03, keeping in
view the 1961 Service Rules [as obtaining on that date], and the ratio
of the judgment of the Supreme Court rendered in Union of India
&Ors vs N.R. Banerjee &Ors. [(1997) 9 SCC 287], Union of India
and Ors. vs. Vipinchandra Hiralal Shah [(1996) 6 SCC 721] and
Nirmal Chandra Bhattacharjee and Ors. vs. Union of India and Ors.
[1991 Supp (2) SCC 363]. This action was registered as O.A.
No.3346/2002.
7.1. The aforesaid original application was disposed of by the
Tribunal, vide order dated 02.02.2006, whereby MOSPI/DoPT was
directed to convene a review Departmental Promotion Committee
(DPC) with the mandate to prepare year-wise select panel qua the
vacancies, arising in the aforementioned period, and to also consider,
the employees involved in the said action, for promotion to Grade III,
albeit, from an anterior date, along with all the consequential benefits.
7.2. The aforementioned direction of the Tribunal in O.A
No.3346/2002, resulted in the MOSPI responding, by issuing an OM
dated 12.05.2006. The said OM changed the manner of allocation of
vacancies since the allocation of vacancies against the promotee quota
would be made only against vacancies that arose upon promotion of a
promotee officer from Grade IV to Grade III. According to MOSPI,
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the change was brought about with the issuance of the OM dated
02.07.1997.
8. Interestingly, the DoPT, in its OM dated 17.04.2009, articulated
the position [which according to the employees is well-established in
law] that the 1961 Service Rules, had a statutory flavor, and hence,
would prevail over administrative instructions.
9. Given this flux and/or lack of clarity as to, how vacancies had to
be allocated between promotees and direct recruits in JTS/Grade IV in
the ISS, the MOSPI approached DoPT for clarification, via
communication dated 31.03.2010.
9.1. It is important to note that, the aforementioned clarification was
sought in the background of the fact that, between 1997-98 and 2004-
05 i.e., before the amendment of the 1961 Service Rules, on the back
of DoPT's OM dated 02.07.1997, vacancies had been allocated based
on post-driven reservation roster as against the provision embedded in
the unamended 1961 Service Rules, which required allocation of
vacancies between direct recruits and promotees in the ratio of 60:40.
9.2. The DOPT, in response to the clarification sought by the
MOSPI, wrote back, once again, on 21.04.2010, and stated in no
uncertain terms that, since 1961 Service Rules are statutory in nature,
they would prevail over administrative instructions.
10. The position, that the employees had taken, vis-à-vis the
allocation of vacancies in JTS/Grade-IV of ISS, having been bolstered
by the response given by DOPT, via communication dated
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21.04.2010, encouraged them to make representation(s)3 to MOSPI
qua implementation of the 1961 Service Rules [as obtaining on the
date when the vacancies arose], and thus, allocate vacancies between
direct recruits and promotees, accordingly. Interestingly, in one of the
representation dated 17.02.2011, there is a reference to the Minutes of
the meeting held in the office of the Union Public Services
Commission (UPSC) with the representatives of the Department of
Statistics, dated 28.11.1997, wherein UPSC opined as follows:
"It was observed that in this case the rectt. rules had been
amended wherein the eligibility service for promotion had been
enhanced from 4 years to 7 years. However, since the vacancies
pertained to a period prior to the amendment of RRs, the DPC will
have to be held on the basis of the original RR's.
The representatives of the Deptt. then informed that there had
been a judgement of CAT which is based on the Supreme Court
judgement in the case of Indira Sawhney which has been referred to
DOP&T & Ministry of Law.
It was further clarified by the representatives of the
Commission that the number of vacancies pertaining to promotion
quota have to be determined w.r.t. the number of vacancies and not to
the number of posts."
10.1. However, MOSPI did not oblige, and summarily rejected the
representation(s) of the employees, via OM dated 13.10.2011. This
OM was based on another communication issued by the DoPT on
31.08.2010, wherein the position taken was that vacancies that arose
after the issuance of OM dated 02.07.1997 were to be allocated, as per
3
Representations dated 12.05.2009, 26.08.2010, 17.02.2011,, 03.06.2011,
26.09.2011.
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the "post-based" reservation roster, irrespective of the date when the
vacancies arose i.e., before or after 02.07.1997.
11. Being aggrieved, one set of the employees approached the
Tribunal seeking a direction for filling up/allocating the vacancies in
JTS/Grade-IV, which arose before 14.09.2005, as per the 1961 Service
Rules then obtaining [i.e., on the date when the vacancies arose]. In
this context, a reference was made to paragraph 6 of OM dated
31.03.2010, issued by MOSPI. Besides this, a prayer was made to set
aside the O.M. dated 13.10.2011. The other reliefs sought were usual
in nature i.e., holding of DPC/review DPC, grant of consequential
reliefs, including according, further promotion to a higher grade on
completion of the requisite period of service; calculated with effect
from the date, when vacancies arose in the feeder grade. This action
was registered as O.A. No.3984/2011 and was filed in and around
02.11.2011.
11.1. The Tribunal, as indicated above, dismissed O.A.No.3984/2011,
vide its judgment dated 31.05.2012. The dismissal of the said O.A.
led to the institution of W.P.(C.) 5029/2012.
12. The other set of employees also approached the Tribunal and
filed their action, on 11.10.2012, which directly impugned the
MOSPI's OM dated 13.10.2011, whereby their representation was
rejected, disregarding the DOPT's communication dated 21.04.2010.
In other words, this set of the employees sought, in effect, the same
relief, which was, that promotions to JTS/STS in Grade IV of ISS
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should be made, in line with the 1961 Service Rules, prevailing before
14.09.2005. This action was registered as O.A. No.4320/2012.
12.1. As noticed hereinabove, the Bench, which heard the O.A.,
indicated above, was not convinced that the decision rendered in O.A.
No.3984/2011, vide judgement dated 31.05.2012, reflected the correct
position in law, and hence, chose to refer the matter to a larger Bench,
via order dated 18.12.2018. Accordingly, the then Chairperson
constituted a Full Bench, which rendered the judgement dated
30.04.2019.
12.2. Via judgement dated 30.04.2019, the Full Bench declared that
the decision taken in O.A. No.3984/2011 was contrary to the law laid
by the Supreme Court in Dr R.N. Bhatnagar case, and therefore, to
that extent, the decision taken was not correct. The Full Bench, thus,
allowed O.A. No.4320/2012, and consequently, set aside the MOSPI's
OM, dated 13.10.2011. The Full Bench of the Tribunal also issued a
direction to MOSPI and DoPT, via judgement dated 30.04.2019, to
allocate vacancies in the promotional posts in the category of JTS, for
the period spanning between 1997-98 and 2004-05, in consonance
with the unamended 1961 Service Rules. It is this decision, which is
assailed by MOSPI and DoPT, in effect, UOI in W.P.(C.) 6422/2020.
13. The foregoing provides the setting in which submissions on
behalf of MOSPI and DoPT were advanced by Mr. R.V. Sinha,
Advocate, while those on behalf of the employees were put forth by
Ms. Harvinder Kaur Oberoi, Advocate.
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Submissions on behalf of MOSPI and DoPT:
14. Mr. Sinha, apart from highlighting the background of the case
[to which we have made a reference above], made the following
submissions on law, insofar as the judgement of the Full Bench of the
Tribunal is concerned, and reiterated, in effect, the conclusion reached
by the Division Bench of the Tribunal, vide judgement dated
31.05.2012 in O.A. No.3984/2011.
(i) The judgement of the Full Bench was flawed, as it comprised
the Chairperson and two administrative members. The number of
administrative members cannot exceed the number of judicial
members on the Bench. In the instant case, the Chairperson was the
only judicial member, while the other two were administrative
members. [See S. Manoharan v. The Deputy Registrar, Central
Administrative Tribunal, New Delhi &Ors., 2015 SCC OnLine Mad
4785.]
(ii) The Full Bench in rendering its decision committed a
jurisdictional error, inasmuch as, instead of adjudicating upon the
issues referred to it, it proceeded to decide the matter on merits. [See
T.A. Hameed v. M. Viswanathan (2008) 3 SCC 243, Kerela State
Science & Technology Museum v. Rambal Co. and Ors.(2006) 6
SCC 258 and Ashok Kumar Sharma and Anr.v. State of Rajasthan
and Anr. (2009) SCC OnLine Raj 5303.]
(iii) The issue raised in the instant petition also came up before the
Tribunal in O.A. No.3346/2002. The Tribunal, vide judgement dated
02.02.2006, had directed the MOSPI/DoPT to examine the grievances
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of the promotees, which, upon examination, resulted in the issuance of
the OM dated 12.05.2006. The matter, therefore, stood settled. The
representations made, thereafter, although, entertained and dealt with,
via order dated 13.10.2011, would not give rise to a fresh cause of
action. [See D.C.S. Negi v. Union of India and Ors. (2018) 16 SCC
721, Union of India &Ors. v. M.K. Sarkar (2010) 2 SCC 59 and
Union of India v C. Girija and Ors. (2019) 15 SCC 633.]
(iv) The Full Bench failed to appreciate that, promotions were made,
according to the assessment made by the DPCs convened on
05.09.2001 and 23.09.2003, and that the resultant seniority list was
issued, as far back as on 07.11.2006. Therefore, the Full Bench lost
sight of the fact that, entertaining the grievance(s) articulated by the
employees, at this juncture, would unsettle the issue of seniority,
which was settled way back in 2006. [See B.S. Bajwa and Anr. v.
State of Punjab and Ors. (1998) 2 SCC 523, K.R. Mudgal & Ors. v.
R.P. Singh &Ors. (1986) 4 SCC 531 and Shiba Shankar Mohapatra
and Ors. v. State of Orissa and Ors (2010) 12 SCC 471.]
(v) Furthermore, the original application filed with the Tribunal i.e.,
O.A. No.4320/2012, which was dealt with by the Full Bench, was not
maintainable, as the persons, who were likely to be affected, were not
arrayed, as parties in O.A. No.4320/2012. [See Ranjan Kumar &Ors.
v. State of Bihar &Ors. (2014) 16 SCC 187 and Union of India and
Anr. v. Indian Railways Civil Engineering Office Association (2011)
SCC OnLine Del 2473.].
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(vi) Neither the Division Bench of the Tribunal nor the Full Bench
ought to have decided the O.A. No.4320/2012 placed before them,
given the position that, at the relevant point in time, this court was
seized of the same issue. The approach of the Tribunal qua the said
OA was contrary to the principle of propriety. The Tribunal's
approach led to the wastage of judicial time. The Tribunal ought to
have waited for the decision of this court, to avoid multiplicity of
litigation.
(vii) The Tribunal failed to appreciate the effect of Rule 13 of the
1961 Service Rules. Rule 8 of the 1961 Service Rules had to be read
along with Rule 13 of the unamended 1961 Service Rules. The
instructions/OMs, which were issued by the DoPT, in particular, the
OM dated 02.07.1997 had to be viewed, in light of Rule 13 of the
unamended 1961 Service Rules. Rule 13 provided leeway for
appointment in the service subject to orders relating to reservations for
Scheduled Castes (SC) and Scheduled Tribe (ST), issued by the
Central Government from time to time. Given this position, the OM
dated 02.07.1997 was valid, as it was issued, having regard to the
judgement of the Supreme Court rendered in the R.K. Sabharwal case.
The said judgement was binding on MOSPI and DoPT, under Article
141 of the Constitution of India.
(viii) The Full Bench of the Tribunal failed to appreciate the ratio of
the judgement rendered by the Supreme court in the Dr R.N.
Bhatnagar case. [See Bharat Petroleum Corporation Ltd. and Anr.
v. N.R. Varmani and Anr. (2004) 8 SCC 749.]
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(ix) The Full Bench failed to appreciate that after an employee is
promoted to JTS, no birthmark is left, and therefore, promotion to the
next higher grade i.e., STS and above are not relatable to the feeder
grade. Therefore, there is no dissonance between the approach
adopted by MOSPI/DoPT and the directions contained in the Dr R.N.
Bhatnagar case.
(x) The Full Bench failed to appreciate that the Supreme Court in
Dr R.N. Bhatnagar case was dealing with a specific rule i.e., Rule
9(1)(d) of the Punjab Medical College Service (Class I) Rules, 1978
[in short "1978 Service Rules"], which did not provide for reservation,
vis-a-vis SC/ST/OBC.
(xi) The Full Bench failed to appreciate that an employee's right to
be considered for promotion accrues on the date he is eligible, as per
the extant rule, and therefore, nobody has the right to claim
retrospective promotion i.e., from the date when the vacancy arises.
[See Union of India &Ors. v. Vijender Singh &Ors. (2010) SCC
OnLine Del 4189 and State of Orissa and Anr. v. Dhirendra Sundar
Das and Ors. (2019) 6 SCC 270.]
Submissions on behalf of the employees:
15. On the other hand, Ms. Oberoi made the following broad
submissions.
(i) The allocations of vacancies for the post of JTS/Grade-IV for
the period spanning between 1997-98 and 2004-05 had to be worked
out, based on the unamended 1961 Service Rules. The MOSPI and
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DoPT's stand that, post-based reservation's approach should be
adopted is an erroneous approach, which is founded on a misreading
of the ratio of the judgement of the Supreme Court rendered in the
R.K. Sabharwal case.
(ii) The allocation of vacancies between direct recruits and
promotees, at least between 1997-98 and 2004-05 should have been
made in 60:40 ratio, which could then have been followed by making
a provision for reservation for SC/ST/OBC. In other words, once
vacant posts for the two quotas were allocated, then, provision could
be made for reservation.
(iii) The OM dated 02.07.1997 was only an executive instruction.
The said OM could not have overridden the 1961 Service Rules, and
therefore, the allocation of vacancies between direct recruits and
promotees had to be made, in terms of Rule 8(1)(a) of 1961 Service
Rules, which stood incorporated therein, before its amendment on
14.09.2005.
(iv) The contention raised on behalf of MOSPI/DoPT that any order
passed by this Court would unsettle the seniority list [which has been
settled way back] and therefore, failure to implead those persons who
would be affected, would render the decision of the Full Bench of the
Tribunal untenable, is erroneous. The employees, who were part of
the O.A.No.3984/2011 and O.A. No. 4320/2012, were not claiming
seniority over any particular individual. Their grievance was directed
towards MOSPI/DoPT, since they had failed to calculate the vacancies
in the year in which they arose, as per the 1961 Service Rules
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obtaining on that date i.e., the unamended 1961 Service Rules. Thus,
there was no fact adverted to in the actions instituted before the
Tribunal, which was required to be dealt with or controverted by
another individual.
(v) The employees in the aforementioned OAs, which were dealt
with by the concerned Benches of the Tribunal, had articulated a
grievance qua the actions of the MOSPI and DoPT, and not vis-a-vis
any particular individual. Since the relief sought was directed only
against the decisions taken by MOSPI and DoPT [as regards the
application of 1961 Service Rules qua vacancies in JTS/Grade-IV of
ISS for the period spanning between 1997-08 and 2004-05], the
actions instituted by the employees cannot fail on this ground.
(vi) In a nutshell, the issue, which arises for consideration before the
court, concerns the executive instructions issued by MOSPI/DoPT,
and the interpretation of the decisions rendered by the Supreme Court
in the R.K. Sabharwal case and the Dr R.N. Bhatnagar case.
Therefore, the argument that, since other individuals are not arrayed as
parties, it non-suits the employees', is flawed. In support of this plea,
reliance is placed on the judgements of the Supreme Court rendered in
A. Janardhana vs. Union of India and Ors. (1983) 3 SCC 6014and
D.D. Joshi (Col.) and Ors. vs. Union of India and Ors. (1983)2 SCC
2355. In this context, it was pointed out that, although this objection
4
In short "A. Janardhana case"
5
In short " D.D. Joshi case"
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was raised before the Division Bench of the Tribunal, which rendered
the decision in O.A.No.3984/2011, it was repelled by the Tribunal.
(vii) Insofar as the objection raised on behalf of MOSPI/DoPT about
delay and laches was concerned, it was contended that there has been
little clarity about what approach should be adopted, qua application
of post-based reservation roster for allocation of vacancies in
JTS/Grade-IV of ISS for the period spanning between 1997-98 and
2004-05. This is evident from the fact that, despite OM dated
02.07.1997 being issued, pursuant to the judgement rendered by the
Supreme Court in the R.K. Sabharwal case, the cause of action arose,
when DPCs were convened in 2001 by the MOSPI/DoPT.
(viii) It is because MOSPI and DoPT were not preparing yearly select
panels for JTS/Grade IV for the period spanning between 1996-97 and
2002-03, that a certain set of employees approached the Tribunal in
2002. This action was registered as O.A. No.3346/2002. This OA
was disposed of, vide order dated 02.02.2002, whereby the Tribunal
directed MOSPI and DoPT to re-examine the matter, in light of the
observations made therein, and thereafter, hold a review DPC to
prepare year-wise select panels for the period in issue. This led to the
issuance of OM dated 12.05.2006 by the MOSPI.
(ix) Since several representations were made, MOSPI sought
clarification from DoPT, which resulted in the DoPT issuing OM
dated 17.04.2009. This OM clearly stated in as many words that, the
provisions of the applicable recruitment rules/ service rules would
prevail over administrative instructions.
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(x) Despite DoPT expressing the aforesaid view, MOSPI vide OM
dated 31.03.2010 sought clarification from DoPT about proper
calculation of year-wise vacancies qua direct recruits and promotees in
JTS/Grade IV in ISS. The DoPT in no uncertain terms, via
communication dated 21.04.2010, once again, emphasized that the
recruitment rules/ service rules, being statutory in nature, would
prevail over administrative instructions.
(xi) It is, thereafter, that, the MOSPI vide yet another OM dated
30.07.2010 sought clarification, vis-a-vis applicability of DoPT's OM
dated 02.07.1997. This led to the issuance of OM dated 31.08.2010
by the DoPT, whereby it is indicated that all posts after 02.07.1997
were required to be filled up by following the post-based roster
approach, irrespective of the period to which the vacancy related. In
other words, the said OM stated that, whether the vacancy related to a
period, before or after 02.07.1997, it had to be filled up, as per the
post-based roster. The grievance, thus, in effect, reemerged on this
date, which led to fresh representation being made by employees,
which were ultimately rejected by MOSPI, via the impugned OM
dated 13.10.2011.
(xii) Therefore, the argument raised on behalf of MOSPI and DoPT
that, there was delay and laches on the part of the employees, ought
not to be countenanced, given the fact that there was a complete lack
of clarity as to how vacancies had to be allocated for the period, before
the amendment of the 1961 Service Rules i.e., before 14.09.2005.
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Analysis and reasons:
16. We have heard the learned counsel for the parties and have
perused the record.
17. According to us, the issue, which arose for consideration both
before the Division Bench of the Tribunal in O.A. No. 3984/2011 and
the Full Bench in OA No. 4320/2012, on merits, was simply this--
how should the vacancies arising in JTS/Grade IV, be filled up?
Before we go into this question, certain admitted facts [to which we
have made a broad reference to hereinabove] are required to be
noticed.
17.1. As indicated hereinabove, the employees were initially
appointed in the statistical functional post (Group-B), available in
various participating ministries and departments of the Govt. of India.
17.2. The channel of promotion for such employees was JTS/STS
which fell in Grade IV of the ISS.
17.3. Before the amendment of the 1961 Service Rules, the allocation
of the vacancies between direct recruits and promotees was governed
by Rule 8(1)(a) of the unamended 1961 Service Rules. The
unamended Rule 8(1)(a) reads as follows:
"8(1) Future maintenance of the Service: After the initial
constitution of the Service has been completed by appointment
of departmental candidates or otherwise and after promotions
in accordance with sub-Rule 2A of Rule 7 have taken place,
vacancies shall be filled in the manner as hereinafter
provided:
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(a) Grade IV-
(i) *60 percent of the vacancies in this grade shall be
filled by direct recruitment through an open
competitive examination to be held by the
Commission in the manner prescribed in Schedule
II.
(ii) 40 percent of the vacancies in this Grade shall be
filled by Selection from among officers serving in
offices under the Government in Statistical posts
recognised for this purpose by the Controlling
Authority who shall prepare a list of such posts in
consultation with the Commission. The
Controlling Authority may in consultation with the
Commission add to modify the list from time to
time. The selection will be made from amongst
those who have completed at least 4 years of
service on a regular basis in these posts on the
basis of merit with due regard to the seniority by
the Controlling Authority on the advice of the
Commission.
Provided that if any junior person in an office under the
Government is eligible and is considered for selection for
appointment against these vacancies, all persons senior to
him in that office shall also be so considered
notwithstanding that they may not have rendered 4 years
of service on a regular basis in their posts."
17.4. Therefore, the unamended Rule 8(1)(a), broadly, provided that,
vacancies in Grade IV would be filled up, through a mix of direct
recruits and promotees in the ratio of 60:40. In other words, 60% of
the vacancies in Grade IV were to be filled up by direct recruitment,
through an open competitive examination held by the Union Public
Services Commission (UPSC), in the manner prescribed, while 40%
of the vacancies in Grade IV were to be filled up by 'selection' from
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among officers, who were working in statistical posts, recognised for
this purpose by the controlling authority. Importantly, only those
officers were eligible for selection, who had completed at least four
[4] years of service on regular basis. The selection was to be made by
the controlling authority, albeit, on the advice of the UPSC, based on
merit, with due regard to seniority.
17.5. This position changed, with the amendment brought about in
the 1961 Service Rules, on 14.09.2005. The change brought about, in
effect, was that the expression "vacancies" was substituted by the
expression "posts" and the qualifying period for selectees/promotees
was altered to five [5] years of service, albeit, on regular basis. The
amendment, as brought about in sub-clause (ii) of clause (a) of Rule
8(1) reads as follows:
"(ii) 40 percent of the posts in the Junior Time Scale shall be
filled by selection from amongst officers belonging to the
Subordinate Statistical Service in the pay scale of Rs.6500-200-
10500. The promotion shall be made by selection from amongst
those who have completed at least five years of service on a
regular basis in these posts including service rendered, if any, in
the Non-Functional scale of Rs.7450-225-11500, by the
Controlling Authority on the recommendations of Departmental
Promotion Committee headed by Chairman/Member, Union
Public Service Commission:
Provided that if any junior who has completed five years
eligibility service is being considered for selection for
appointment against these vacancies all persons senior to him in
that office would also be considered provided they are not short
of the requisite eligibility service by more than half of such
eligibility service or two years, whichever is less, and have
successfully completed their probation period on promotion to
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next higher grade along with their juniors who have already
completed such eligibility service."
18. Therefore, this being the lay of land [so to speak], one would
have to ascertain two things, to answer the poser framed by us.
19. Firstly, what exactly was the ratio of the judgement rendered by
the Supreme Court in the R.K. Sabharwal case. A perusal of the said
judgement shows that the court was dealing with the provisions of the
Punjab Service of Engineers Class I PWD (IB) Rules, 1964 and the
instructions issued by the Punjab Government dated 04.05.1974.
These instructions provided for reservations for SC and backward
classes (BCs) in promotions to and within Class I and Class II
services, constituted under the State Government. The instructions
provided for reserving 16% of the posts, to be filled by promotion, for
SCs and BCs (14% for SCs and 2% for BCs), subject to the concerned
person possessing the minimum necessary qualifications and having a
satisfactory service record. Importantly, the very same instructions
provided for a hundred-point roster, in which 1, 7, 15, 22, 30, 37, 44,
51, 58, 65, 72,80, 87,91 and so on posts were required to be preserved
for SCs, whereas 26 and 76 had to be reserved for BCs. The said
instructions further provided that, the roster would be implemented in
the form of a running account from year to year. Thus, before the
court, there were two sets of employees--one set belonged to the
general category while the other belonged to the SC category.
19.1. In this context, the following observations were made in
paragraph 5 of the judgement:
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"5. We see considerable force in the second contention raised by
the learned counsel for the petitioners. The reservations provided
under the impugned Government instructions are to be operated in
accordance with the roster to be maintained in each Department.
The roster is implemented in the form of running account from year to
year. The purpose of "running account" is to make sure that the
Scheduled Castes/Schedule Tribes and Backward Classes get their
percentage of reserved posts. The concept of "running account" in the
impugned instructions has to be so interpreted that it does not result in
excessive reservation. "16% of the posts ..." are reserved for members
of the Scheduled Castes and Backward Classes. In a lot of 100 posts
those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72,
80, 87 and 91 have been reserved and earmarked in the roster for the
Scheduled Castes. Roster points 26 and 76 are reserved for the
members of Backward Classes. It is thus obvious that when
recruitment to a cadre starts then 14 posts earmarked in the roster are
to be filled from amongst the members of the Scheduled Castes. To
illustrate, first post in a cadre must go to the Scheduled Caste and
thereafter the said class is entitled to 7th, 15th, 22nd and onwards up
to 91st post. When the total number of posts in a cadre are filled by the
operation of the roster then the result envisaged by the impugned
instructions is achieved. In other words, in a cadre of 100 posts when
the posts earmarked in the roster for the Scheduled Castes and the
Backward Classes are filled the percentage of reservation provided for
the reserved categories is achieved. We see no justification to operate
the roster thereafter. The "running account" is to operate only till the
quota provided under the impugned instructions is reached and not
thereafter. Once the prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and thereafter the roster does
not survive. The percentage of reservation is the desired representation
of the Backward Classes in the State Services and is consistent with
the demographic estimate based on the proportion worked out in
relation to their population. The numerical quota of posts is not a
shifting boundary but represents a figure with due application of mind.
Therefore, the only way to assure equality of opportunity to the
Backward Classes and the general category is to permit the roster to
operate till the time the respective appointees/promotees occupy the
posts meant for them in the roster. The operation of the roster and the
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"running account" must come to an end thereafter. The vacancies
arising in the cadre, after the initial posts are filled, will pose no
difficulty. As and when there is a vacancy whether permanent or
temporary in a particular post the same has to be filled from amongst
the category to which the post belonged in the roster. For example the
Scheduled Caste persons holding the posts at roster points 1, 7, 15
retire then these slots are to be filled from amongst the persons
belonging to the Scheduled Castes. Similarly, if the persons holding
the post at points 8 to 14 or 23 to 29 retire then these slots are to be
filled from among the general category. By following this procedure
there shall neither be shortfall nor excess in the percentage of
reservation."
19.2. A close scrutiny of the aforesaid extract would show that the
Constitution Bench in the R.K. Sabharwal case was concerned with,
how a hundred-point promotion roster should work, wherein
reservation had been made for SCs and BCs at points given in the
instructions framed by the Punjab Government.
19.3. On the other hand, in the instant case, what the Division Bench
of the Tribunal in O.A. No.3984/2011 or the Full Bench in
O.A.No.4320/2012 was called upon to decide was--whether the
allocation of available vacancies, had to be made, as per the
unamended 1961 Service Rules, between two sources i.e., direct
recruits and promotees, for filling up the promotion posts, i.e.,
JTS/Grade IV, in the period spanning between 1997-98 and 2004-05.
19.4. As per the unamended 1961 Service Rules, 60% of the
vacancies had to be allocated for direct recruits and the remaining
40% were required to be allocated for promotees. The reservation of
posts, which fell within the ambit of Article 16(4) of the Constitution,
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would have come about only after the available vacancies had been
allocated. It is relevant to note that, the Supreme Court in the Dr R.N.
Bhatnagar case brought out this difference, quite clearly. The
observations made in the following paragraphs of the judgement
rendered in the Dr R.N. Bhatnagar case, being apposite, are culled
out hereafter.
19.5. But before we do so, it may be relevant to also set forth the rule,
which was being considered by the Supreme Court in the Dr R.N.
Bhatnagar case. This was a case where the court was called upon to
decide, as to, how a vacancy in the post of Professor was to be filled
up in the Department of Ophthalmology in Government Medical
College, Patiala. The State of Punjab took the position, albeit, based
on the operation of the quota rule and roster cycle of 3:1 [whereby
right from inception, in every batch three vacancies of professors in
the given cadre were filled up by the departmental promotees], that the
fourth vacancy was to be filled by direct recruitment. The State of
Punjab, thus, took the stand that, the vacancy in question, which was
the 16th vacancy, if the afore-stated roster cycle was to be applied,
would be available to a direct recruit, and not to the departmental
promotee; a stand which was contrary what was contended by the
respondent i.e., Dr R.N. Bhatnagar before the Punjab and Haryana
High Court.
19.6. Interestingly, the Punjab and Haryana High Court, while ruling
in the favour of the respondent, had taken recourse to the judgement of
the Constitution Bench in the R.K. Sabharwal case, and granted him
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relief. It was the State of Punjab and an intervenor, who contended to
the contrary in the Supreme Court, i.e., that the Punjab and Haryana
High Court had misinterpreted the ratio of the judgement of the
Constitution Bench in R.K. Sabharwal case. According to the State of
Punjab and the intervenor, the said judgement concerned a scheme of
reservation for SCs and BCs under Article 16(4) of the Constitution,
while the Rule under consideration i.e., Rule 9(1)(d) of the 1978
Service Rules concerned a scheme for regulating recruitment from two
sources, and thus, fell within the ambit of Article 16(1) of the
Constitution.
19.7. It is in this context that, the Supreme Court framed amongst
others, the following question for consideration in the Dr R.N.
Bhatnagar case:
"Whether the interpretation of Rule 9(i)(d) [sic Rule 9(1)(d)],
which appealed to the High Court, is a correct one;"
19.8. The relevant Rule, which the court was called upon to rule on
i.e., Rule 9(1)(d) of the 1978 service Rules reads as follows:
"(9) Method of appointment.--
(d) In the case of Professors:
(i) 75 per cent posts by promotion from amongst the
Additional Professors, or where Additional Professors are
not available, from amongst the Associate Professors, or,
where Associate Professors are not available, from
amongst the Assistant Professors, or by transfer of
officials already in the service of the Government of
India, or the State Government;
(ii) 25 per cent posts by direct recruitment;"
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20. Thus, the observations of the Supreme Court, which are
extracted below, are to be seen in the context of the above-mentioned
Rule.
"Point 1
9. So far as the first point is concerned, the High Court in
the impugned judgment, has heavily relied upon the
Constitution Bench decision of this Court in the case of R.K.
Sabharwal [(1995) 2 SCC 745: 1995 SCC (L&S) 548: (1995)
29 ATC 481]. Now it has to be kept in view that the
Constitution Bench of this Court in the aforesaid decision was
concerned with entirely a different question, namely, as to how
the roster indicating reserved points in connection with
reservation of posts in a cadre to be filled in by Scheduled
Caste (for short "SC"), Scheduled Tribe (for short "ST") and
Backward Class (for short "BC") candidates could be operated.
Para 4 of the Report lays down that: (SCC p. 750)
"4. When a percentage of reservation is fixed in respect
of a particular cadre and the roster indicates the reserve
points, it has to be taken that the posts shown at the
reserve points are to be filled from amongst the members
of reserve categories and the candidates belonging to the
general category are not entitled to be considered for the
reserved posts."
In this connection, reliance was placed by the Constitution
Bench on Article 16(4) of the Constitution of India which
permits the State Government to make any provision for
reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the State,
was not adequately represented in the services under the State.
In the light of the aforesaid scheme of the Constitution, the
Bench had to consider whether reservation of posts for SCs,
STs and BCs when sought to be secured by way of operation
of the roster could permit the operation of the roster qua the
`posts or vacancies in the cadre. It was noted in this connection
that if the roster operated on vacancies, then it may happen that
at a given point of time, the percentage of reservation of posts
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`for SCs, STs and BCs may exceed the permissible
percentage of reservation. In para 5 of the Report, it was
observed that reservations provided under the impugned
government instructions permitted 16% of the posts to be
reserved for members of SCs and BCs and it could be
achieved by the roster to be maintained in each Department.
The roster had to be implemented in the form of running
account from year to year. In connection with "16% of the
posts..." to be reserved for members of SCs and BCs in
promotional posts, it was held as under: (SCC p. 751, para
5)
"[W]hen recruitment to a cadre starts then 14 posts
earmarked in the (100 points) roster are to be filled from
amongst the members of the Scheduled Castes. ... When the
total number of posts in a cadre are filled by the operation of
the roster then the result envisaged by the impugned
instructions is achieved. In other words, in a cadre of 100 posts
when the posts earmarked in the roster for Scheduled Castes
and the Backward Classes are filled the percentage of
reservation provided for the reserved categories is achieved.
We see no justification to operate the roster thereafter. The
'running account' is to operate only till the quota provided
under the impugned instructions is reached and not thereafter.
Once the prescribed percentage of posts is filled the
numerical test of adequacy is satisfied and thereafter the
roster does not survive."
The aforesaid observations which were heavily relied on by the
High Court and are also relied upon by the respondent's (writ
petitioner's) counsel before us, cannot be of any assistance
to the appellant-State on the facts of the present case. The
result is obvious. As per Article 16(4) which carves out a
separate field for itself from the general sweep of Article 16(1)
which guarantees equality of opportunity in matters of
appointments in government services to all citizens of India,
the reservation for these categories in employment has to be
achieved by earmarking the requisite percentage of posts for the
reserved category of candidates and by pitchforking these posts
on roster points on requisite points' roster and when such a
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roster takes a full cycle, posts earmarked on reserved points
will enable the requisite reserved category of candidates to
fill up these posts. After that is done, the roster would be
treated to have achieved its purpose. Whenever a reserved
candidate vacated a reserved post, the said post was liable to be
filled only by a candidate belonging to the reserved category.
If after the roster is first operated and thereafter it is again
operated on future vacancies also, a situation may arise
wherein a cadre may get reserved category exceeding the
permitted quota of reservation. It is to avoid this contingency
that the Constitution Bench laid down in the aforesaid
decision as indicated therein. So far as Rule 9 of the Rules in
the present case is concerned, it has nothing to do with
reservation of posts in the cadre of Professors. It is not a rule of
reservation envisaged for a specified category of persons as
permitted by Article 16(4) of the Constitution. On the
contrary, it is a rule of recruitment from two different
sources, namely, in case of Professor's cadre, 75% of the posts
has to be filled in by promotion while 25% by direct
recruitment. These two sources of recruitment permit
departmental promotees and direct recruits from the open
market to get absorbed in the cadre. They merely serve as two
entry points for the cadre. Rule 9 deals with reservation of
appointment to the posts of Professor and does not deal with
reservation of posts of Professor for any special class
or category of candidates. It is well settled that once
recruitment is made from two sources, i.e., departmental
promotees and direct recruitment from the open market and
once the candidates concerned enter into any cadre through
entry point reserved for them, they get fused and blended into
one single cadre and their birthmarks get obliterated. In this
connection, we may usefully refer to a Constitution Bench
decision of this Court in State of J&K v. Triloki Nath
Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49]. Chandrachud,
J. (as he then was), speaking for the Constitution Bench while
dealing with recruitment to a cadre from two sources,
namely, direct recruits and promotees in the light of an earlier
judgment of this Court in Roshan Lal Tandon v.
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Union of India [AIR 1967 SC 1889 : (1968) 1 SCR 185] made
the following pertinent observations: (SCC p. 38, paras 44-45)
"44. The key words of the judgment are: 'The recruits
from both the sources to Grade 'D' were integrated into one
class and no discrimination could thereafter be made in favour
of recruits from one source as against the recruits from the
other source in the matter of promotion to Grade 'C'.'
(emphasis supplied)
By this was meant that in the matter of promotional
opportunities to Grade 'C', no discrimination could be made
between promotees and direct recruits by reference to the source
from which they were drawn. That is to say, if apprentice Train
Examiners who were recruited directly to Grade 'D' as Train
Examiners formed one common class with skilled artisans
who were promoted to Grade 'D' as Train Examiners, no
favoured treatment could be given to the former merely because
they were directly recruited as Train Examiners and no
discrimination could be made as against the latter merely
because they were promotees. This is the true meaning of the
observation extracted above and no more than this can be read
into the sentence next following: 'To put it differently, once the
direct recruits and promotees are absorbed into one cadre, they
form one class and they cannot be discriminated for the purpose
of further promotion to the higher Grade 'C'.' In terms, this was
just a different way of putting what had preceded.
45. Thus, all that Roshan Lal case [AIR 1967 SC 1889 : (1968)
1 SCR 185] lays down is that direct recruits and promotees lose
their birthmarks on fusion into a common stream of service and
they cannot thereafter be treated differently by reference to the
consideration that they were recruited from different sources.
Their genetic blemishes disappear once they are integrated into
a common class and cannot be revived so as to make equals
unequals once again."
It has, therefore, to be appreciated that when posts in a cadre are
to be filled in from two sources, whether the candidate comes
from the source of departmental promotees or by way of direct
recruitment, once both of them enter a common cadre, their
birthmarks disappear and they get completely integrated in the
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common cadre. This would be in consonance with the thrust of
Article 16(1) of the Constitution of India. No question of
exception to the said general thrust of the constitutional provision
would survive as Article 16(4) would be out of the picture in such
a case. Consequently, the decision rendered by the Constitution
Bench in R.K. Sabharwal case [(1995) 2 SCC 745 : 1995 SCC
(L&S) 548 : (1995) 29 ATC 481] in connection with Article 16(4)
and the operation of roster for achieving the reservation of posts
for SCs, STs, and BCs as per the scheme of reservation cannot be
pressed into service for the present scheme of Rule 9(1) is not as
per Article 16(4) but is governed by the general sweep of Article
16(1). The attempt of learned counsel for the respondent to treat a
quota rule as a reservation rule would result in requiring the State
authorities to continue the birthmarks of direct recruits and
promotees even after they enter the common cadre through two
separate entry points regulating their induction to the cadre.
Therefore, the roster for 3 promotees and one direct recruit is to be
continued every time a vacancy arises and there is no question of
filling up a vacancy arising out of a retirement of a direct recruit
by a direct recruit or on the retirement vacancy of a promotee by a
promotee. Consequently, the question of rotating the vacancies as
posts or for treating the posts mentioned in the rules of recruitment
as necessarily referable to total posts in the cadre at a given point
of time in the light of R.K. Sabharwal [(1995) 2 SCC 745 : 1995
SCC (L&S) 548 : (1995) 29 ATC 481] judgment, therefore, cannot
survive for in the case of a quota rule between direct recruits and
promotees, the same is to be judged on the touchstone of Article
16(1) and the statutory rules governing the recruitment to the posts
of Professor constituting the Punjab Medical Education Service
(Class I) and not on the basis of Article 16(4). The Division Bench
in the impugned judgment with respect wrongly applied the ratio
of R.K. Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S)
548 : (1995) 29 ATC 481] governing Article 16(4) to the facts of
the present case which are governed by Article 16(1).
10. We may also mention that in brief written submissions filed on
behalf of the respondent, an attempt is made to show that the word
"reserve" means to appropriate or to set aside. The dictionary
meaning found in The Law Lexicon, 1997 Edition of P. Ramanatha
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Aiyar is pressed into service in this connection. It is stated therein
that reserve would mean "to set apart" but as we have already
discussed, Rule 9 is concerned with reservation of appointments
from two sources of recruitment. It does not envisage a scheme of
reservation of posts. Consequently, as aforesaid, the dictionary
meaning of the term "reserve" cannot advance the case of the
respondent.
11. On the other hand, the situation which has fallen for our
consideration in the present case in the light of Article 16(1) is
squarely covered by a decision of this Court in Paramjit Singh
case [(1979) 3 SCC 478 : 1979 SCC (L&S) 309] as clarified by a
latter decision in the very same case reported in Paramjit
Singh [(1982) 3 SCC 191 : 1982 SCC (L&S) 266] . In the
aforesaid main case, D.A. Desai, J., speaking for a Bench of two
learned Judges of this Court, had to consider in para 11 of the
Report a recruitment rule which permitted fixed percentage of
posts to be filled up in the given cadre from two different sources,
namely, promotees and direct recruits. Rule 6 of the Punjab Police
Service Rules, 1959 which came up for consideration in that case
provided for a method of recruitment from two different sources,
i.e., 80% by promotion from the rank of Inspectors and 20% by
direct recruitment. Examining the working of the aforesaid quota
rule for recruitment in the light of the relevant rotational scheme of
vacancies in the cadre to which such recruitment was to be made,
the following pertinent observations were made in para 11 of the
Report: (SCC p. 485)
"11. Where recruitment to a cadre is from two sources and the
Service Rules prescribe quota for recruitment for both sources a
question would always arise whether the quota rule would apply at
the initial stage of recruitment or also at the stage of confirmation.
Ordinarily, if quota is prescribed for recruitment to a cadre, the
quota rule will have to be observed at the recruitment stage. The
quota would then be correlated to vacancies to be filled in by
recruitment but after recruitment is made from two different
sources they will have to be integrated into a common cadre and
while so doing, the question of their inter se seniority would
surface."
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As there was some doubt about the observations found in the
aforesaid para 11 and as to how the recruitment rule in question
was to be operated in the light of the quota prescribed therein and
the rotational method of achieving the said quota of recruitment
from two sources, a latter Bench clarified the position in the
subsequent judgment in the case of Paramjit Singh (supra).
Another Bench of two learned Judges, wherein D.A. Desai, J., was
common, clarified the observations in para 11 of the earlier Report
as under [(1982) 3 SCC 191 : 1982 SCC (L&S) 266] : (SCC pp.
195-96, paras 6 and 7)
"6. In our opinion there is no ambiguity in the judgment.
Ordinarily speaking, where recruitment is from two sources with a
view to integrating recruits from both sources after the recruitment
seniority is determined from the date of entry into the cadre except
where there has been a substantial violation of the quota giving
undeserved advantage to one or the other source. Seniority
ordinarily speaking is determined with reference to the date of
entry into the cadre which in service jurisprudence is styled as the
date of continuous officiation. These notions of service
jurisprudence may have to yield place to the specific rules and the
fact situation with reference to Rule 10 did compel this Court to
depart from the normal concept in service jurisprudence. However,
introduction of a roster system is very well known in service
jurisprudence. What this Court meant while saying that when a
quota rule is prescribed for recruitment to a cadre it meant that
quota should be correlated to the vacancies which are to be filled
in. Who retired and from what source he was recruited may not be
very relevant because retirement from service may not follow the
quota rule. Promotees who came to the service at an advanced age
may retire early and direct recruits who enter the service at a
comparatively young age may continue for a long time. If,
therefore, in a given year larger number of promotees retire and
every time the vacancy is filled in by referring to the source from
which the retiring person was recruited it would substantially
disturb the quota rule itself. Therefore, while making recruitment
quota rule is required to be strictly adhered to. That was what was
meant by this Court when it said: [SCC p. 486, para 14 : SCC
(L&S) p. 318]
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'The quota rule would apply to vacancies and recruitmenthas
to be made keeping in view the vacancies available to the two
sources according to the quota.'
The quota in the present case is 4:1, that is, four promotees to one
direct recruit. Therefore, whenever vacancies occur in the service
the appointing authority has to go on recruiting according to quota.
In other words, whenever vacancies occur, first recruit four
promotees irrespective of the factors or circumstances causing the
vacancies and as soon as four promotees are recruited bring in a
direct recruit. That was what was meant by this Court when it said
that a roster has to be introduced and this roster must continue
while giving confirmation. The sentence which seems to have
created a difference of opinion reads as under: [SCC p. 486, para
14 : SCC (L&S) p. 318]
'A roster is introduced while giving confirmation
ascertaining every time which post has fallen vacant and recruit
from that source has to be confirmed in the post available to the
source.'
7. The sentence cannot be read in isolation. It has to be read
with the earlier sentence that the quota rule would apply to the
vacancies and recruitment has to be made keeping in view the
vacancies available to the two sources according to the quota. The
Court then proceeded to say that if the quota rule is strictly adhered
to there will be no difficulty in giving confirmation keeping in
view the quota rule even at the time of confirmation."
The aforesaid decision which squarely applies to the facts of the
present case, therefore, leaves no room for doubt that when under
the Recruitment Rule 9 in question, there is no reservation of any
given category of candidates like SCs, STs or BCs to the posts in
the cadre of Professors, appointments to the posts in the cadre
have to be made in the light of the percentage of vacancies in the
posts to be filled in by promotees or direct recruits. The quota of
percentage of departmental promotees and direct recruits has to be
worked out on the basis of the roster points taking into
consideration vacancies that fall due at a given point of time. As
stated earlier, as the roster for 3 promotees and one direct recruit
moves forward, there is no question of filling up the vacancy
created by the retirement of a direct recruit by a direct recruit or
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the vacancy created by a promotee by a promotee. Irrespective of
the identity of the person retiring, the post is to be filled by the
onward motion of 3 promotees and one direct recruit.
Consequently, learned counsel for the appellant and learned Senior
Counsel for the intervenor were right when they contended that the
High Court in its impugned judgment had patently erred in
invoking the ratio of the decision of this Court in R.K. Sabharwal
case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC
481] which was rendered in an entirely different context for
resolving an entirely different controversy which did not arise on
the facts of the present case. They were also right in contending
that the ratio of the decision of this Court in Paramjit Singh
case [(1979) 3 SCC 478 : 1979 SCC (L&S) 309] read with the
decision of this Court in the same case reported in Paramjit
Singh [(1982) 3 SCC 191 : 1982 SCC (L&S) 266] would get
squarely attracted in the facts of the present case. Once that
conclusion is reached, the result becomes obvious. Whenever in
the cadre of Professors of Ophthalmology, vacancies arise for
being filled in at any given point of time, those vacancies in the
posts have to be filled in by operating the roster in such a way that
available vacancies get filled up by allotting 75% of them to
departmental promotees and 25% to direct recruits. Exactly in this
way, the roster in the present case was operated by the appellant-
State to regulate entry in the cadre of Professors.
xxx xxx
xxx
As laid down by this Court in the aforesaid two decisions rendered
by the Division Benches of two learned Judges, speaking through
D.A. Desai, J., it has to be held that for working out the rule of
recruitment envisaging appointments from two sources of
promotees and direct recruit vacancies in the cadre of Professors
had to be kept in view and not the posts themselves. Learned
counsel for the appellant and learned Senior Counsel for the
intervenor were right when they contended that if the view which
appealed to the High Court is to be accepted, the very Rule 9 and
the scheme envisaged by it for effecting appointments to the cadre
in the ratio of 75% for promotees and 25% for direct recruits
would get stultified and frustrated. It was rightly submitted that if
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four vacancies are filled in from promotees and only one vacancy
is to be kept for a direct recruit on the basis that there are total five
posts in the cadre, then 75% of five posts would work out at 3.75
and have to be rounded up as four for the promotees and the
remaining 1.25 posts have to be rounded up as only one post being
less than 1.50. Thus, in substance, the source of recruitment for
promotees would get enhanced to 80% and that of direct recruits
would be reduced to 20%. That would fly in the face of the
statutory rule which does not envisage such percentage of
reservation for promotees and direct recruits.
xxx xxx
xxx
It must, therefore, be held that Rule 9 which regulates
appointments to the posts in the Punjab Medical Education Service
(Class I) has to be applied uniformly for recruitment of Professors
in all the cadres of disciplines. In such cases, the method followed
by the appellant-State for recruitment of Professors in diverse
cadres of disciplines as shown in Appendix 'B' to the Rules
remains the only workable one. It is to the effect that as and when
vacancy arises in the cadre of posts concerned in any of the
disciplines, the first three future vacancies would go to
departmental promotees and the fourth future vacancy would go to
a direct recruit. Meaning thereby, even in the cadre of Professor of
Forensic Medicine where only one post of Professor is for the first
time to be filled in, it will go to a promotee and as and when such
promotee retires or resigns or unfortunately dies in harness, the
second vacancy would also go to a promotee, similarly, the third
one but the fourth vacancy would go to a direct recruit. That is
how Rule 9 laying down quota and rota for monitoring recruitment
from two sources of departmental promotees and direct recruits
can work uniformly in all the departments for recruitment of
Professors where the posts of Professor in the cadres of
departments concerned may consist of a solitary post or two posts
or more than two posts or may be five posts, as in the present case.
This would result in a harmonious operation of Rule 4 and Rule 9
and no part of Rule 9 will be rendered otiose or truncated in such a
case. It must, therefore, be held that the reasoning adopted by the
High Court in connection with the working of the aforesaid Rule
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falls foul on the touchstone of Article 16(1) read with the statutory
scheme as envisaged by these Rules. In the light of our aforesaid
conclusion, it becomes obvious that the disputed 16th vacancy in
the cadre of Professors of Ophthalmology consisting of five posts
would necessarily go to a direct recruit and not to a departmental
promotee as wrongly assumed by the High Court while allowing
the writ petition.
12. .......We are not concerned with any scheme of reservation
under Article 16(4). Therefore, R.K. Sabharwal case [(1995) 2
SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] cannot be
pressed into service, as seen earlier. If that is so, on the same lines
the ratio of the decision of this Court in the Postgraduate Institute
of Medical Education & Research case [(1998) 4 SCC 1 : 1998
SCC (L&S) 961] would also not apply. While deciding the
question of working out the Recruitment Rule for appointment
from two sources of promotees and direct recruits wherein only
Article 16(1) would hold the field, uninhibited by the exceptional
category carved out from the said sub-article (1) by sub-article (4)
thereof. The first point for determination is, therefore, answered in
favour of the appellants and against the respondent."
20.1. Therefore, in our view, apart from anything else, the MOSPI
and DoPT, having misinterpreted the judgement of the Supreme Court
rendered in the R.K. Sabharwal case, have gone wrong in issuing
executive instructions, and thus, clearly erred in not
calculating/allocating vacancies between direct recruits and
promotees.
21. It must be borne in mind that the employees have taken an
unambiguous position that, they are not advocating that no
reservations should be made or that no scheme on those lines should
be framed. It is their contention, which was articulated both before the
Division Bench [in O.A. No.3984/2011] and the Full Bench [in O.A.
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No.4320/2012] of the Tribunal as also the Bench, which referred the
matter to the Full Bench, vide order dated 18.12.2018, that, the
reservation scheme should kick in, after available vacancies were duly
allocated, as per the extant rules.
22. This brings us to the next question as to whether executive
instructions can override the 1961 Service Rules. In our view, the
position taken by the DoPT, via OMs dated 17.04.2009 and
21.04.2010, was the correct position in law, which is, that, since
recruitment rules/service rules have a statutory flavour, they would
prevail over the executive instructions. In this behalf, the observations
made by the Supreme Court in the case of K. Kuppusamy and
Another v. State of Tamil Nadu and Others, (1998) 8 SCC 469, being
apposite, are extracted hereafter:
"3. .........The relevant rules, it is admitted, were framed
under the proviso to Article 309 of the Constitution. They are
statutory rules. Statutory rules cannot be overridden by
executive orders or executive practice. Merely because the
Government had taken a decision to amend the rules does not
mean that the rule stood obliterated. Till the rule is amended,
the rule applies...."
22.1. This is not to say that, in the absence of statutory rules, the State
cannot make provisions for promotions, through executive
instructions. However, if executive instructions are framed, they
cannot be in derogation of or inconsistent with the statutory rules. In
case of inconsistency, the statutory rules would override the executive
instructions. The following observations were made by the five-judge
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bench of the Supreme Court in the judgement rendered in Sant Ram
Sharma vs. State of Rajasthan and Ors., (1968) 1 SCR 111:
"7. .............It is true that there is no specific provision in
the Rules laying down the principle of promotion of junior or
senior grade officers to selection grade posts. But that does not
mean that till statutory rules are framed in this behalf the
Government cannot issue administrative instructions regarding
the principle to be followed in promotions of the officers
concerned to selection grade posts. It is true that Government
cannot amend or supersede statutory rules by administrative
instructions, but if the rules are silent on any particular point
Government can fill up the gaps and supplement the rules and
issue instructions not inconsistent with the rules already
framed."
22.2. In this particular case, since the unamended Rule 8(1)(a) of the
1961 Service Rules occupied the field, till, at least, 14.09.2005, the
MOSPI could not have acted contrary to the said Rule. This is besides
the point that, the MOSPI and DoPT, based on a misinterpretation of
the judgement of the Supreme Court in the R.K. Sabharwal case,
ended up taking steps, which were not in line with the ratio of said
judgement.
22.3. Therefore, in our view, both the DoPT clarification dated
31.08.2010 [which was contrary to its earlier clarification(s), dated
17.04.2009 and 21.04.2010] and the impugned OM dated 13.10.2011,
issued by MOSPI, were not aligned to the ratio of the judgement of the
Supreme Court in the R.K. Sabharwal case.
22.4. At this juncture, it is important to deal with the argument
advanced by Mr. Sinha that, since R.K. Sabharwal case is a judgment
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rendered by a Constitution Bench of the Supreme Court, it is binding
under Article 141 of the Constitution, and therefore, the decision
rendered, albeit, also by the Supreme Court in the Dr. R.N. Bhatnagar
case, should be ignored.
(i) As to the first limb of this contention, one can have no cavil.
Every judgement of the Supreme Court [more so a judgment delivered
by the Constitution Bench], is binding on all, including this Court;
Article 141 of the Constitution states that, in no uncertain terms.
(ii) That being said, where a Bench of the Supreme Court interprets
the judgment of another Bench including the judgment of the
Constitution Bench, that interpretation is binding on this court. [See
Commissioner of Income-tax, West Bengal-III versus M/s. Oberoi
Hotels (P) Ltd., 2011 SCC OnLine Cal 7186; Also see
Vishwa
"Therefore, the first question that arises for determination in this appeal is
6
whether we should follow the decision of the Supreme Court in the case
of McDowell & Company Ltd. (supra) and ignore the subsequent decision of the
Supreme Court explaining the said decision on the ground that the latter ones were
delivered by a Bench consisting of two Judges.
There is no dispute with the proposition of law that if there are conflict of
opinions between the two Benches of the Supreme Court on a question of law, the
one declared by the larger Bench would prevail over the one pronounced by the
other Bench. But if a Bench consisting of a smaller number of judges interprets a
decision of a larger Bench of the Supreme Court in a different way which may be
apparently opposed to the one taken by the larger Bench, a subsequent co-ordinate
Bench of the Supreme Court may refuse to follow the interpretation of the latter
one on the ground that it proposed to follow the earlier view expressed by a larger
Bench. But if the subsequent decision of the smaller Bench explaining the larger
Bench is placed before a High Court, the latter is bound to follow the subsequent
one by the smaller one which interprets the decisions of the larger Bench because
that is the interpretation of the larger Bench by a Bench of Supreme Court and the
High Court cannot make a different interpretation than the one made by the
subsequent decision of the Supreme Court which is binding upon it. The position,
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Chandubhai Patel and Others versus Union of India and Others,
2021 SCC OnLine Bom 1173, paragraph 13]
(iii) This is apart from our understanding of the ratio of the
judgment rendered by the Supreme Court in R.K. Sabharwal case,
which has been enunciated hereinabove.
22.5. Furthermore, the judgment of the Supreme Court in Dr. R.N.
Bhatnagar case was cited with approval by a three-judge Bench of the
Supreme Court in All India Federation of Central Excise v. Union of
India, (1999) 3 SCC 384. Thus, the observations made therein, for the
sake of convenience, are extracted hereafter:
"13. Reliance by the petitioners is placed upon R.K. Sabharwal
case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC
481] . That case deals with the principle that the posts vacated by
an officer recruited from the SC/ST category must be filled in only
by the same reserved category. This is because of the special
provision in Article 335 of the Constitution of India relating to
adequate representation of the SCs/STs in the services. The
birthmarks there remain even on promotion inasmuch as a
particular number of posts in the promotional category are reserved
to be filled in only from among SCs/STs. On the other hand, so far
as a normal quota rule between two feeder channels for recruitment
however, would be different if the subsequent smaller Bench of the Supreme
Court in ignorance of the earlier larger Bench takes a contrary view from the one
taken by the earlier larger Bench. In that situation, the High Court is entitled to
reject the view of the latter smaller Bench of the Supreme Court as per incuriam.
In the case before us, the subsequent decision of a Smaller Bench in the case
of Ajadi Bacho Andolon (supra), has taken note of the earlier decision in the case
of M/s. McDowell & Company Ltd. (supra), and has interpreted the same and thus,
it is not a case of passing decision in ignorance of a binding decision. Therefore,
in this case, the view taken by the Tribunal cannot be said to be wrong and is
consistent with the one taken in the case of AjadiBachoAndolon (supra)."
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or promotion is concerned, be it between direct recruits and
promotees or promotion by a quota between different feeder groups
(as in the case before us), the relevant precedents are Paramjit
Singh Sandhu v. Ram Rakha Mal [(1982) 3 SCC 191 : 1982 SCC
(L&S) 266] and State of Punjab v. Dr R.N. Bhatnagar [(1999) 2
SCC 330 : 1999 SCC (L&S) 513 : (1998) 6 Scale 642] .
In Paramjit Singh case [(1982) 3 SCC 191 : 1982 SCC (L&S) 266]
which related to recruitment from among promotees and direct
recruits, D.A. Desai, J. pointed out that if a quota rule between
direct recruits and promotees were treated as a rule of reservation,
then because of the frequent retirements of the promotees who
were generally closer to retirement, most vacancies in the
promotional posts would repeatedly go to the aged promotees
leaving little scope for direct recruitment. At p. 196, the learned
Judge clarified as follows: (SCC para 6)
"What this Court meant while saying that when a quota
rule is prescribed for recruitment to a cadre, it meant that
quota should be co-related to the vacancies which are to
be filled in. Who retired and from what source he was
recruited may not be very relevant because retirement
from service may not follow the quota rule."
The learned Judge further pointed out: (SCC p. 196, para 6)
"Promotees who come to the service at an advanced age
may retire early and direct recruits who enter the service
at a comparatively young age may continue for a long
time. If, therefore, in a given year larger number of
promotees retire and every time the vacancy is filled in
by referring to the source from which the retiring person
was recruited, it would substantially disturb the quota rule
itself. Therefore, while making recruitment quota rule is
required to be strictly adhered to."
14. On the facts of that case, it was pointed out (at SCC p. 196,
para 6) that the quota there for recruitment was 4:1 between
promotees and direct recruits and that therefore,
"whenever vacancies occur in the service, the appointing
authority has to go on recruiting according to quota. In
other words, whenever vacancies occur, first recruit four
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promotees irrespective of the factors or circumstances
causing the vacancies and as soon as four promotees are
recruited bring in a direct recruit".
(emphasis
supplied)
15. A like situation arose in State of Punjab v. Dr R.N.
Bhatnagar [(1999) 2 SCC 330 : 1999 SCC (L&S) 513 : (1998)
6 Scale 642] . That was again a case of recruitment by
promotion to the posts of Professors from the category of
Additional Professors and also by way of direct recruitment, in
the ratio of 3:1. The Additional Professors who represented the
promotee feeder group having a quota of 3 vacancies in the
cadre of Professors contended that whenever a Professor retired,
one has to find out whether he was a promotee or a direct
recruit. If the vacancy was created by retirement of a promotee,
then the said vacancy in the promotional cadre had to be filled
only by a promotee from the lower cadre and not by way of
direct recruitment. Reliance for the said contention was placed
by the promotees on Sabharwal case [(1995) 2 SCC 745 : 1995
SCC (L&S) 548 : (1995) 29 ATC 481] . This Court
distinguished Sabharwal case [(1995) 2 SCC 745 : 1995 SCC
(L&S) 548 : (1995) 29 ATC 481] as relating to a scheme of
reservation and observed that in a system of quota between
promotees and direct recruits, once the posts in the higher cadre
were filled, thereafter if vacancies arose (say) by retirements,
then it was not permissible to treat the vacancy as a vacancy
earmarked for the category to which the retiree belonged before
being promoted or recruited. Once the recruitment was made
from two channels, the birthmarks got erased as stated in State
of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19 : 1974 SCC
(L&S) 49 : (1974) 1 SCR 771] . In Dr Bhatnagar case [(1999) 2
SCC 330 : 1999 SCC (L&S) 513 : (1998) 6 Scale 642]
Majmudar, J. observed (at p. 652) as follows:
"The quota of percentage of departmental promotees and
direct recruits has to be worked out on the basis of the
roster points taking into consideration vacancies that fall
due at a given point of time. As stated earlier, as the
roster for 3 promotees and one direct recruit moves
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forward, there is no question of filling up the vacancy
created by the retirement of a direct recruit by a direct
recruit or the vacancy created by a promotee by a
promotee. Irrespective of the identity of the person
retiring, the post is to be filled by the onward motion of 3
promotees and one direct recruit."
The position in regard to the quota of 6:1:2 in the case before us
is no different."
22.6. This was also a view expressed by another Bench of the
Supreme Court in Akhilesh Kumar Singh v. Ram Dawan & Ors.,
(2015) 16 SCC 619. The following observations were made by the
Supreme Court in paragraphs 9 to 12 of the said judgment:
"9. From the aforesaid enunciation of law, it is eminently
explicit that reservation for a single post in a cadre will keep the
general members of the public in total exclusion and the
question of reservation will arise when there is plurality of post
in the cadre. Needless to say that the Constitution Bench has
been stating about the reservation with regard to the Scheduled
Castes, Scheduled Tribes and Other Backward Classes. It does
not lay down that if a post is meant to be filled up by promotion
from amongst the employees working in the feeder cadre, it
would tantamount to reservation. Reservation is only restricted
to the Scheduled Castes, Scheduled Tribes and Other Backward
Classes. It does not relate to the persons serving in the feeder
cadre.
10. In State of Punjab v. R.N. Bhatnagar [State of
Punjab v. R.N. Bhatnagar, (1999) 2 SCC 330 : 1999 SCC
(L&S) 513] , it has been laid down (SCC p. 341, para 9) that
when posts in a cadre are to be filled in from two sources,
whether the candidate comes from the source of departmental
promotees or by way of direct recruitment, once both of them
enter a common cadre, their birthmarks disappear and they get
completely integrated in the common cadre and it is in
consonance with the thrust of Article 16(1) of the Constitution
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of India. The Court further observed that no question of
exception to the said general thrust of the constitutional
provision would survive as Article 16(4) would be out of the
picture in such a case.
11. In this context, a reference to a two-Judge Bench decision
in Kuldeep Kumar Gupta v. H.P. SEB [Kuldeep Kumar
Gupta v. H.P. SEB, (2001) 1 SCC 475 : 2001 SCC (L&S) 253]
is apposite. In the said case, a contention was advanced that
providing a quota tantamounts to reservation. Repelling the said
submission, it was ruled: (SCC pp. 484-85, para 6)
"6. ... Article 16 deals with equality of opportunity in
matters of public employment and Article 16(4) enables the
State in making any provision for reservation of
appointments or posts in favour of any backward class of
citizens which in the opinion of the State is not adequately
represented in the services under the State. This Court
in Indra Sawhney case [Indra Sawhney v. Union of India,
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992)
22 ATC 385] has held that no such reservation is permissible
in the promotional posts and to get over the said decision
Article 16(4-A) has been inserted by the Constitution
(Seventy-seventh Amendment) Act. But we fail to
understand as to how providing a quota for a specified
category of personnel in the promotional post can be held to
be a reservation within the ambit of Article 16(4). Providing
a quota is not new in the service jurisprudence and whenever
the feeder category itself consists of different category of
persons and when they are considered for any promotion, the
employer fixes a quota for each category so that the
promotional cadre would be equibalanced and at the same
time each category of persons in the feeder category would
get the opportunity of being considered for promotion. This
is also in a sense in the larger interest of the administration
when it is the employer, who is best suited to decide the
percentage of posts in the promotional cadre, which can be
earmarked for different category of persons. In other words
this provision actually effectuates the constitutional mandate
engrafted in Article 16(1), as it would offer equality of
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opportunity in the matters relating to employment and it
would not be the monopoly of a specified category of
persons in the feeder category to get promotions. We,
therefore, do not find any infraction of the constitutional
provision engrafted in Article 16(4) while providing a quota
in the promotional cadre, as in our view it does not
tantamount to reservation."
23. We are also not impressed with the submission made on behalf
of MOSPI and DoPT by Mr Sinha that, if the judgement of the Full
Bench is sustained, it will upset the seniority list, and therefore, not
having arrayed parties which could get impacted, would render the
follow-up action untenable in law. According to us, Ms Oberoi is
right in her contention that, the grievance of the employees in O.A.
Nos.3984/2011 and 4320/2012 was directed against unsustainable
direction(s) of the MOSPI/DoPT, and not against any particular
individual.
23.1. As was submitted by Ms Oberoi in the course of the hearing,
since the employees before us were not laying a challenge to the
seniority of any particular individual, the contention put forth by Mr
Sinha was, completely, without merit. In this context, the observations
made by the Supreme Court in A. Janardhana case, being relevant,
are extracted herein below:
"36. It was contended that those members who have scored a march
over the appellant in 1974 seniority list having not been impleaded
as respondents, no relief can be given to the appellant. In the writ
petition filed in the High Court, there were in all 418 respondents.
Amongst them, first two were Union of India and Engineer-in-
Chief, Army Headquarters, and the rest presumably must be those
shown senior to the appellant. By an order made by the High Court,
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the names of Respondents 3 to 418 were deleted since notices could
not be served on them on account of the difficulty in ascertaining
their present addresses on their transfers subsequent to the filing of
these petitions. However, it clearly appears that some direct recruits
led by Mr Chitkara appeared through counsel Shri Murlidhar Rao
and had made the submissions on behalf of the direct recruits.
Further an application was made to this court by nine direct recruits
led by Shri T. Sudhakar for being impleaded as parties, which
application was granted and Mr P.R. Mridul, learned Senior
Counsel appeared for them. Therefore, the case of direct recruits has
not gone unrepresented and the contention can be negatived on this
short ground. However, there is a more cogent reason why we
would not countenance this contention. In this case, appellant
does not claim seniority over any particular individual in the
background of any particular fact controverted by that person
against whom the claim is made. The contention is that criteria
adopted by the Union Government in drawing up the impugned
seniority list are invalid and illegal and the relief is claimed
against the Union Government restraining it from upsetting or
quashing the already drawn up valid list and for quashing the
impugned seniority list. Thus the relief is claimed against the
Union Government and not against any particular individual.
In this background, we consider it unnecessary to have all
direct recruits to be impleaded as respondents. We may in this
connection refer to G.M., South Central Railway,
Secundrabad v. A.V.R. Siddhanti [(1974) 4 SCC 335 : 1974 SCC
(L&S) 290 : AIR 1974 SC 1755 : (1974) 3 SCR 207, 212 : 1974
Lab IC 587 : (1974) 1 LLJ 312] . Repelling a contention on behalf
of the appellant that the writ petitioners did not implead about
120 employees who were likely to be affected by the decision in the
case, this court observed that [SCC para 15, p. 341 : SCC (L&S) p.
296] the respondents (original petitioners) are impeaching the
validity of those policy decisions on the ground of their being
violative of Articles 14 and 16 of the Constitution. The
proceedings are analogous to those in which the
constitutionality of a statutory rule regulating seniority of
government servants is assailed. In such proceedings, the
necessary parties to be impleaded are those against whom the
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relief is sought, and in whose absence no effective decision can
be rendered by the court. Approaching the matter from this
angle, it may be noticed that relief is sought only against the
Union of India and the concerned Ministry and not against any
individual nor any seniority is claimed by anyone individual
against another particular individual and therefore, even if
technically the direct recruits were not before the court, the
petition is not likely to fail on that ground. The contention of the
respondents for this additional reason must also be negatived."
(emph
asis is
ours)
23.2. Similarly, the observations of the Supreme Court in the D.D.
Joshi case, being apposite, are also extracted hereafter:
"23. On behalf of the respondents, it was urged that if the
contention of the petitioners is accepted which could compel the 1st
respondent to resettle the seniority list, those over whom petitioners
and those similarly situated would score a march should have been
impleaded as respondents and in their absence, no relief can be
given to them. We would not accept this contention for two reasons:
(i) that the decision in G.M., South Central Railway, Secunderabad
[(1974) 4 SCC 335 : 1974 SCC (L&S) 290 : AIR 1974 SC 1755 :
(1974) 3 SCR 207 : (1974) 1 LLJ 312] would permit us to
negative the contention, this being not a case of individual claim
or claim of seniority by one person against specified others, but
a question of interpretation of a provision and which
interpretation could be given because it would be binding on the
Union of India, the presence of others is unnecessary. Union of
India would have merely to give effect to the decision of this
Court. Therefore, the absence of those who may by our
interpretation be adversely affected in the facts and
circumstances of the case need not be necessarily here and if the
relief could have been granted, the same would not have been
denied on the ground that proper parties were not before the
court...."
(emphasis is ours)
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23.3. Although, the Division Bench of the Tribunal in O.A.
No.3984/2011 ruled in favour of the MOSPI and DoPT, however, the
objection taken, concerning failure to implead individuals, who,
according to them, were likely to be impacted, was repelled. On this
issue, the Tribunal agreed with the employees. Pertinently, no counter-
affidavit was filed on behalf of the MOSPI and DoPT in W.P.(C.)
5029/2012 whereby the decision rendered by the Division Bench of
the Tribunal was assailed. Although, the MOSPI and DoPT had the
option to file the counter-affidavit, and demonstrate that the Tribunal
had reached an erroneous conclusion on this aspect, they did not avail
of this opportunity. [See orders dated 21.08.2012 and 25.02.2013,
passed in W.P.(C.) 5029/2012]. In this context, principles analogous to
Order XLI Rule 22 of the Civil Procedure Code, 1908 can be applied.
MOSPI and DoPT could have stated that, even though, they agree
with the conclusion reached by the Division Bench, qua the aforesaid
issue, the Division Bench of the Tribunal should have rendered a
decision in their favour. Had this been said by way of a counter-
affidavit, the same could have been treated, perhaps, as a cross-
objection by this Court.
23.4 We must indicate that, in the counter-affidavit filed in O.A.
No.3948/2011, the MOSPI and DOPT did attempt to show that
relief, if any, granted to the employees would involve unsettling
the position, which stood settled since 02.07.1997; and would
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involve disturbing the seniority of officers, which were fixed way
back between 2003 and 2008.
23.5. As indicated above, this aspect of the matter did not
impress the Division Bench of the Tribunal, which decided the
O.A. No.3948/2011. As noted hereinabove, in the writ petition
filed by the employees i.e. W.P.(C) 5029/2012, whereby the
decision rendered in O.A. No.3948/2011 was assailed, no
counter-affidavit was filed, even though that option was available
to MOSPI and DOPT, and thereby, take the opportunity to
demonstrate as to how the conclusion reached by the Tribunal qua
this aspect of the matter was erroneous.
23.6 Be that as it may, we had, vide order dated 16.07.2021,
called upon the counsel for the employees to file a chart
supported by an affidavit to demonstrate that, there will be no
demotion if relief is granted to the employees, and the only
benefit that they will get, would be in the form of the
enhancement of pension.
23.7 We may record that, pursuant to the abovementioned order,
Ms. Oberoi filed an additional-affidavit, which shows that, in the
above-captioned writ petitions, 105 individuals are involved [83
in W.P.(C) No.5029/2012 and 22 in W.P.(C) No.6422/2020].
Furthermore, according to this affidavit, only 19 individuals are
presently in service. Thus, the remaining 86 individuals would
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only be entitled to monetary benefit. Besides this, it is also
averred that most individuals, out of 19, who are in service would
retire in 2022 and 2023. According to this affidavit, there are
huge number of vacancies in the ISS cadre at every level, and
therefore, the promotee employees could be accorded relief
without impacting the rights of direct recruits.
23.8 On the other hand, in the affidavit-in-reply filed on behalf
of the MOSPI and DOPT, inter alia, the position broadly taken
was that, if the view of the Full Bench is sustained, it would
involve a herculean effort. Pertinently, there is no refutation of
the fact that, most of the employees have retired and that there
are, at present, only 19 employees, who are in service; who, as
indicated by Ms. Oberoi, are only seeking benefits which would
get factored in their retiral dues.
24. As far as Mr Sinha's contention that the aspect concerning
limitation, including delay and laches, was not considered by the Full
Bench of the Tribunal; in our view, is without basis, in the facts and
circumstances obtaining in said cases.
24.1. As pointed out in the earlier part of our discussion, there was a
complete lack of clarity, even in the minds of the officers, who were to
fill up the promotion post of JTS/STS in Grade-IV of ISS. Even
according to Mr Sinha, the DPC for filling up the promotion post(s)
were convened on 05.09.2001 and 23.09.2003. In the interregnum, a
set of employees had approached the Tribunal, via O.A.No.3364/2002.
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This OA was disposed of, vide order dated 02.02.2006, whereby the
following observations were made by the Tribunal:
"26. In our considered view, while the DPC may be delayed due
to the intricacies of judicial system whereby right from Narender
Chadha's case (supra), the issue was settled only after holding DPC in
2001, i.e., for the yester years and also for the year 2003 yet the
respondents, while calculating the vacancies, have not adhered to the
resultant chain vacancies on account of retirement and promotion to
higher grades, which had certainly prejudiced applicants claim to be
considered from the date of the accrual of vacancies in the year-wise
panel on attainment of eligibility and by not extending the panel as per
the procedure laid down ibid, their right for consideration has been
affected. Though it is settled law that mere chances of promotion does
not constitute a right but one has a right being fundamental to be
considered for promotion.
27. In the matter of the policy of the Government and the
administrative action, though statutory rules and supplementary Govt.
instructions, which do not override the statutory rules framed under
Article 309 hold the field and should be inconsonance with the
requirement of the Articles 14 & 16 of the Constitution as has
been held by the Apex Court in State of Haryana &others v. Piara
Singh, 1992 SCC (L&S) 825 and also in Kailash Chand Sharma v.
State of Rajasthan & others, 2002 AIR 2877.
28. The other contentions raised are not adjudicated for the
present. Only on the above score, we find it difficult to
reconcile with the justification and explanation tendered by
the respondents as to calculation of vacancies in their two DPCs
held in 2001 and 2003 pertaining to the vacancies for the years
1996 till 2003 though many of the applicants are promoted but
still they have a right to be considered on re-calculation of
vacancies in accordance with procedure and guidelines from
retrospective date, which would also give them an opportunity
to be further considered for higher post and in the wake of their
approaching retirement on superannuation.
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29. It is trite law that when a decision of the Government is
not inconsonance with law, rules and instructions, the only
direction can be issued is for re-consideration.
30. In the result, for the foregoing reasons, the OA stands
disposed of with a direction to the respondents to re-examine
the entire matter in the light of our observations and in
furtherance to that, prepare year-wise select panel for the
vacancies pertaining to the years 1996 to 2003 by holding
review DPC, except those 28 vacancies filled up by an order
dated 7.10.2003 and in that event, the claim of the applicants
be also considered for promotion from an anterior date and in
case of their fitness, they may be accorded all the consequential
benefits. The applicants promotion in the event is antedated
would require consideration for further promotion to Grade III.
The above-said exercise shall be completed within a period of
three months from the date of receipt of a copy of this order. No
costs."
24.2. As would be evident, the Tribunal asked the MOSPI to re-
examine the matter. Unfortunately, the re-examination, which was
done and resulted in OM dated 12.05.2006, being issued by MOSPI,
did not address the concerns of the employees. It is, however, apparent
from the record that MOSPI was not clear, as to what approach ought
to be adopted for the period, before the amendment of the 1961
Service Rules, as that had taken place only, on 14.09.2005.
24.3. This is evident from the fact, that there was a flip-flop, even in
2007, when notification dated 19.01.2007 was issued by the DoPT, in
light of the judgment of the Supreme Court rendered in Dr. R.N.
Bhatnagar case.
24.4. Given this position, MOSPI sought clarification from DoPT,
which was clarified by DoPT on 17.04.2009, and was reiterated, on
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21.04.2010, when clarification was sought once again by the DoPT,
via communication dated 31.03.2010. Had MOSPI adopted the advice
given by the DoPT, at that juncture, no further grievance would have
survived, vis-à-vis the period spanning between 1997-98 and 2004-05.
24.5. It is only after MOSPI approached the DoPT, once again, and
addressed the communication dated 30.07.2010, in that regard, that,
once again, confusion prevailed, as this time around, the DoPT
changed its position, which got reflected in its OM dated 31.08.2010.
Consequent thereto, the impugned OM dated 13.10.2011 was issued.
24.6. The employees immediately, thereafter, approached the MOSPI
for redressal, and because their pleas were not entertained, that the
actions [i.e., OA Nos. 3984/2011 and 4320/2012] which are the
subject matter of the present petitions, came to be filed.
24.7. This is, therefore, not a case, where representations were being
repeatedly made, although, the position, as regards how available
vacancies had to be allocated between direct recruits and promotees,
stood settled.
24.8. Therefore, while one cannot quibble with the proposition that a
mere representation would not enable a litigant to extend limitation,
the facts obtaining in the present case, to our minds, are different. We
are of the view that the employees cannot be non-suited on this
ground. The judgements cited by Mr Sinha, qua this issue, are
distinguishable on facts.
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24.9. In the counter-affidavit filed in the OA, the ground of
limitation/delay and laches was not taken. It was taken for the first
time before this Court. It appears on account of facts and
circumstances, as stated above, MOSPI and DoPT, wisely, did not
raise any objection to the maintainability of the OA 3984/2011 and
4320/2012 on the ground of limitation/delay and laches; this assertion
has been made for the first time in this Court. Limitation being a
mixed question of law and fact had to be tested in the Tribunal, which
would have given an opportunity to employees to deal with the same.
It needs to be emphasised that employees are not seeking to disturb
settled seniority, they are today confining their claim to monetary
benefits that would have accrued to them, had MOSPI/DOPT not
resorted to the impugned action(s). The impugned action(s) caused
injury and/or wrong to the employees in continuum. In such a
scenario, actions cannot be dismissed on the ground of
limitation/delay and laches, as they affect none (i.e., third parties)
except those who are deprived of their monetary claims.
25. The other issue that was raised by Mr Sinha, which is, that the
Full Bench was not appropriately constituted is also not a contention,
that impresses us. It is required to be noticed that, no such objection
was raised in the reply filed, on behalf of the MOSPI/DoPT, before the
Tribunal. Having failed before the Full Bench, the MOSPI/DoPT has
chosen to raise this contention for the first time before this court. This
practice has been repelled by the Supreme Court. [See Municipal
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Commissioner vs. Salil Kumar Banerjee & Ors. (2000) 4 SCC 1087;
Also see Krishna Packers vs. Lt. Governor MANU/DE/1673/20138]
26. The last contention advanced by Mr Sinha that the Full Bench
should have only dealt with the issues referred to it, and not decided
the matter on merits, is completely untenable. The reason we say so is
that a perusal of the order of reference, which is dated 18.12.2018 and
is passed in O.A. No.4320/2012, shows that, after discussing the pros
7"4. In the first place, by reason of Section 631(3), the Tribunal that heard the first
respondent's appeal was properly constituted. That sub-section expressly made
provision that the procedure of the 1980 Act would be followed in respect of
proceedings that related to contraventions of the 1951 Act. This provision was
overlooked by the High Court. The High Court also overlooked the fact that it was
the first respondent, the writ petitioner before it, who had filed the appeal under
the 1980 Act before the Tribunal and had at no stage before the Tribunal ever
contended that it was improperly constituted. Even assuming that it ought to have
consisted of three or more Members, had that objection been taken at the initial
stage of the hearing of the appeal before the Tribunal, that position could have
been rectified. Certainly, in circumstances such as these, the High Court ought not
to have exercised its discretion in favour of the first respondent."
8
"10.5...Even though the petitioner was well aware that it had preferred an appeal
with the Lt. Governor, no objection was taken before the Deputy Secretary 26-09-
2021 (Page 3 of 5) www.manupatra.com Jamia Millia Islamia that he ought not to
hear the appeal. This objection is sought only after the impugned order raising the
demand was passed. Therefore, this argument of the petitioner does not impress
me. See following observations of the Supreme Court in Municipal
Commissioner, Calcutta & Ors. vs. Salil Kumar Banjerjee & Ors.
MANU/SC/2758/2000 : (2000) 4 SCC 108:
" ...The High Court also overlooked the fact that it was the first
respondent, the writ petitioner before it, who had filed the appeal
under the 1980 Act before the Tribunal and had at no stage before the
Tribunal ever contended that it was improperly constituted. Even assuming
that it ought to have consisted of three or more Members, had that
objection been taken at the initial stage of the hearing of the appeal before
the Tribunal, that position could have been rectified. Certainly, in
circumstances such as these, the High Court ought not to have exercised its
discretion in favour of the first respondent...."""
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and cons of the matter in issue, the Bench culled out in paragraph 18
of its decision, not only the issues qua which reference was made but
also went on to give its view in the matter.
` "18. It is in view of the foregoing that following issues needed
to be considered by the Tribunal:
(a) Given the RRs of ISS dated 01.11.1961 and amended on
14.09.2005 where annual allocation of the DR quota and Promotee
quota have remained unchanged to the extent of 60% of the
annual vacancies for DR and remaining 40% of the vacancies are to
be filled up by promotions for the years 1997-98 and onwards,
whether this annual allocation to these two streams is to be made
first before any caste based allocation as per Post based roster.
(b) Whether post based roster as per DOP&T OM dated
02.07.1997 is to be applied separately to the 60% DR quota and
the 40% promotee quota for the respective allocation of
vacancies starting from the year 1997-98.
As already brought out above, it is the considered view of this
Bench that the answer to both these issues is in the
affirmative and accordingly it is the table in para 6 of OM
dated 31.03.2010 which is to be followed and not the table in
para 7 (para 17 supra). The Om dated 13.10.2011, will also
need to be set aside to this extent. However, since this is
contrary to what the earlier bench had decided in OA
No.3984/2011, Hon'ble Chairman, CAT may kindly consider
constituting a Full Bench for consideration of the issue."
(emphasis is ours)
26.1. As would be evident, the Bench had, in fact, already given its
mind as to its view in the matter, however, having regard to the
judgement dated 31.05.2012, which was rendered by a co-equal Bench
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in O.A.No.3984/2011, the concerned Bench referred the matter to the
Full Bench. Therefore, in our opinion, in this case, it was necessary for
the Full Bench to give its view not only qua the issues referred to it,
but also render its decision on the merits of the matter.
Conclusion:
27. Therefore, for the foregoing reasons, we are inclined to set aside
the judgement of the Division Bench of the Tribunal rendered in
O.A.No.3984/2011, and sustain the judgement dated 30.04.2019,
which is rendered by the Full Bench, in O.A.No.4320/2012. However,
the relief will be restricted to the employees involved in the instant
proceedings, and more particularly, to the grant of monetary benefits.
27.1. The above-captioned petitions are disposed of in the aforesaid
terms. Consequently, pending application in W.P.(C.) 6422/2020 shall
also stand closed.
28. The parties will, however, bear their respective costs.
RAJIV SHAKDHER, J.
TALWANT SINGH, J.
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