Kerala High Court
B.S.Jayakumar vs State Of Kerala on 13 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936
WA.No. 2607 of 2005
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O.P.NO. 19992/1996 OF THIS HONOURABLE COURT, DATED 13-06-2005
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APPELLANT / PETITIONER :
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B.S.JAYAKUMAR,
ASSISTANT EXECUTIVE ENGINEER (MUNICIPAL ENGINEER),
MUNICIPAL OFFICE, NEYYATTINKARA.
BY ADVS.SRI.PIRAPPANCODE V.SREEDHARAN NAIR
SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENTS / RESPONDENS :
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1. STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM.
2. DIRECTOR OF MUNICIPAL ADMINISTRATION,
THIRUVANANTHAPURAM.
3. T.V.BALAN NAMBIAR,
ASSISTANT EXECUTIVE ENGINEER (MUNICIPAL ENGINEER),
KUNNAMKULAM MUNICIPALITY, KUNNAMKULAM.
4. JOHN BOSCO P.,
ASSISTANT EXECUTIVE ENGINEER (MUNICIPAL ENGINEER),
PALA MUNICIPALITY, PALA.
* 5. N.HARIDAS,
ASSISTANT EXECUTIVE ENGINEER (MUNICIPAL ENGINEER),
VARKALA MUNICIPALITY, VARKALA,
THIRUVANANTHAPURAM DISTRICT.(DELETED)
* R5 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 21.06.2011 IN
I.A.NO.393 OF 2011.
R1 & R2 BY GOVERNMENT PLEADER SRI.VIJU THOMAS
R3 BY ADV. SRI.P.M.POULOSE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2014,
THE COURT ON 02-09-2014 DELIVERED THE FOLLOWING:
Msd.
Ashok Bhushan, Ag. C.J & A.M. Shaffique, J.
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W.A. No. 2607 of 2005
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Dated this, the 2nd day of September, 2014.
J U D G M E N T
Shaffique, J.
This appeal is filed by the petitioner in O.P. No. 19992/1996. The original petition was filed seeking for a direction to quash Exts. P5 and P6 and for a direction to respondents 1 and 2 to grant the petitioner Higher Grade in the post of Assistant Executive Engineer and thereafter to the post of Executive Engineer with all consequential benefits and alternatively to consider and dispose of his representations Exts.P8, P9, P10 and P11.
2. The facts involved in the original petition would disclose that the petitioner was appointed as Assistant Engineer as per Ext. P1 order dated 10.6.1982 on a regular basis. He was promoted as Assistant Executive Engineer as per Ext. P4 dated 25.6.1986.
3. As per Municipal Common Service, the method of recruitment to the post of Assistant Engineer was by direct recruitment and by promotion from those working in the cadre of Overseer Grade I in the ratio 6:4. Among the posts set apart for promotion 3 shall be filled up by persons having Diploma in Engineering and 1 post from persons having Certificate in Engineering. Petitioner is a direct recruit. Respondents 3 to 5 were provisionally promoted as Assistant Engineers pending regular appointment to the quota earmarked for recruitment of Assistant Engineers by the Kerala Public Service Commission (for short 'KPSC') and they were provisionally promoted to the post of Assistant Executive Engineers as per Ext.P5 and P6. The petitioner relies upon Ext. P7 dated 31.7.1976, Government Order inter alia contending that seniority list of Assistant Executive Engineers ought to W.A. No. 2607 of 2005 -: 2 :- have been fixed, based on the same. The petitioner further relies upon Ext. P3 dated 22.4.1986, an interse seniority list, which was issued, according to him, in accordance with the rules and the same has become final. It is therefore the contention of the petitioner that provisional promotion given to respondents 3 to 5 to the post of Assistant Engineer has to be ignored as their appointments were made in the places earmarked for recruitment by KPSC. That apart, the provisional promotion of respondents 3 to 5 to the post of Assistant Executive Engineer will not affect his seniority in the said category. No seniority list was published in terms of Ext.P7. Though the petitioner had submitted certain representations claiming higher grade as Ext.P8 and P9, but no reply was received. When a vacancy of Executive Engineer had arisen 1.10.1996, being senior-most he made a claim for the said post and submitted Ext.P10 and P11 representations inter alia seeking higher grade in the post of Assistant Executive Engineer as well, and since no action has been taken in the matter a he had approached this Court by filing the original petition.
4. In the counter affidavit filed by the 2nd respondent, it was inter alia stated that though the ratio to be followed between direct recruits and by promotion to the post of Assistant Engineer was 6:4, there being no subsisting list of direct recruits, to fill up the posts respondents were promoted as Assistant Engineers. Thereafter even before appointing the petitioner as Assistant Engineer in Municipal Common Service, there arose three vacancies of Assistant Executive Engineers. In such vacancies, two degree holders and a diploma holder had to be promoted. W.A. No. 2607 of 2005 -: 3 :- The 3rd and 4th respondents were Assistant Engineers possessing degree in Engineering. They also possessed the prescribed test qualifications. Another person, Sri. K. Sreedharan, was a diploma holder. Accordingly, respondents 3, 4 and K. Sreedharan were promoted as Assistant Executive Engineers as per G.O(Rt) 72/82/LA SWD dated 7.1.1982 (Ext.P5). It is stated that the petitioner's appointment to the category of Assistant Engineer, which was formerly known as Junior Engineer, was after promotion of respondents 3 and 4 to the post of Assistant Executive Engineer. When a vacancy had arisen to the post of Assistant Executive Engineer, the petitioner submitted representations and sought for reviewing the promotion of respondents 3 and 4. The petitioner filed O.P. No. 7442/1983 before this Court for issuing appropriate direction to the Government to dispose of his representations. The Government considered the question of filling up the post of Assistant Executive Engineer then existing. By that time, the petitioner had not completed three years' service as Assistant Engineer and had not passed the requisite test qualification required for promotion. Since he was not qualified, he was not considered for promotion as Assistant Executive Engineer. The 5th respondent was a degree holder and had completed three years' service as Assistant Engineer and had passed the test qualification required for promotion. Hence, the 5th respondent was provisionally promoted as Assistant Executive Engineer as per Ext. P6 Government Order dated 25.10.1983 and petitioner's claim was declined as per Government letter No. 18292/ML.A1/LA & SWD W.A. No. 2607 of 2005 -: 4 :- dated 9.3.1984. Petitioner was provisionally promoted as Assistant Executive Engineer on 25.6.1986 after he completed 3 years of service as Assistant Engineer and acquired the test qualification. It is therefore contended that respondents 3 to 5 has a superior claim for promotion and respondents 3 and 4 were promoted as Executive Engineer as per Government Order dated 13.5.1997 and the petitioner could claim promotion as Executive Engineer only after the promotion of 5th respondent. It is also stated that respondents 3 to 5 were not granted higher grade and therefore, the said claim of the petitioner is unsustainable.
5. In the counter affidavit filed by the 3rd respondent it is contended that he was promoted as Assistant Engineer on 23.8.1979 and as Assistant Executive Engineer on 7.1.1982 and at the relevant time petitioner was not even in service. He contends that his probation as Assistant Engineer was declared on 23.8.1980. With reference to Ext.P3 it is stated that the same was never circulated among the members in service and it cannot be relied upon to claim seniority. That apart by the time Ext.P3 was issued he was already promoted as Assistant Executive Engineer.
6. In the counter affidavit filed by the 5th respondent, it was stated that at the time when a vacancy had arisen to the post of Assistant Executive Engineer, the petitioner was not qualified. The petitioner had filed O.P. No. 7442/1983 challenging the promotion given to the 5th respondent. But in the meantime his claim was rejected as per Ext. R5(b) order dated 9.3.1984, which has become final. His promotion as Assistant Engineer was W.A. No. 2607 of 2005 -: 5 :- regularised on 23.9.1980.
7. In the light of the aforesaid factual situation, the learned Single Judge observed that though Ext. P3 order was issued, wherein the petitioner was shown ahead of respondents 3 and 5 in the category of Assistant Engineer, consequent upon the petitioner not having acquired the required qualification and his probation not having been declared at the time when respondents 3 and 5 were qualified and their probation having been declared, there is nothing wrong in appointing respondents 3 and 5 by way of promotion as Assistant Executive Engineers ahead of the petitioner. Though the petitioner had challenged the said promotion, the Government, in the meantime, has passed Ext. R5
(b) order in 1984 and if any interference is made with reference to the promotions effected several years back, it will unsettle the matters which have been settled long back. As far as the 5th respondent is concerned, Ext. R5(b) having become final, the petitioner cannot have any grievance against the 5th respondent. In regard to respondents 3 and 4, they were promoted for the reason that they had requisite qualification at the time when the petitioner did not have the experience which was fixed by way of qualification. It is also found that the petitioner claimed seniority only by his representation submitted in 1994 and had approached this Court only in 1996, by which time qualified persons were already promoted. On this background, the learned Single Judge had dismissed the original petition.
8. The learned counsel for the appellant/petitioner, however, placed strong reliance on Ext. P3 to contend that he was W.A. No. 2607 of 2005 -: 6 :- entitled for promotion to the higher post before respondents 3 to
5. According to the learned counsel, Ext. P3 order dated 22.4.1986 clearly indicates the position of the petitioner ahead of 3rd respondent in the post of Assistant Engineer. The said order was challenged in a proceeding before this Court in O.P. No. 5042/1986. Ext.P13 is the counter affidavit filed by the respondent. Ext. P14 is the judgment of this Court upholding Ext. P3. In the said circumstances, the respondents cannot have a different say in the matter. It is overlooking Exts. P13 and P14 that the learned Single Judge had arrived at the aforesaid conclusion is the argument. That apart, in so far as the promotions given to respondents 3 to 5 in the post of Assistant Engineer and also in the post of Assistant Executive Engineer, were provisional they cannot claim any independent right to have seniority over the appellant. Learned counsel for the appellant also relied upon the judgment of the Supreme Court in K. Madalaimuthu and Another v. State of T.N. & Others, [(2006) 6 SCC 558], to contend that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. It is only from the date on which his services are regularised that such appointee can count his seniority in the cadre. Another judgment relied upon is State of Panjab & Another v. Ashwani Kumar & Others, [(2008) 12 SCC 572], in which Supreme Court held that the question whether the period of ad hoc services rendered by the respondents is to be included for calculating the seniority was W.A. No. 2607 of 2005 -: 7 :- considered by a three-Judge Bench of this Court in State of Haryana v. Haryana Veterinary & AHTS Assn. [(2000) 8 SCC 4] wherein it was held that for calculating 8/18 years' service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be counted and not ad hoc service. Reference is also made to the judgment of the Supreme Court in State of Rajasthan & Others v. Jagdish Narain Chaturvedi, (2009) 12 SCC 49 to contend that "Ad hoc appointment is always to a post but not to the cadre/service and is also not made in accordance with the provisions contained in the recruitment rules for regular appointment."
9. On the other hand, the learned counsel for the 3rd respondent relied upon a Full Bench judgment of this Court in T.C. Sreedharan Pillai & Others v. State of Kerala & Others, [1973 KLT 151 (FB)] to contend that seniority which is settled long back should not be unsettled. Another judgment relied upon is a Constitution Bench judgment of the Supreme Court in Direct Recruit Class-II Engineering Officers' Association & Others v. State of Maharashtra & Others, (AIR 1990 SC 1607), to contend that if the quota rule is not followed continuously for a number of years due to impossibility, the inference is that the quota rule had broken down and when the appointments are made from one source in excess of the quota after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a W.A. No. 2607 of 2005 -: 8 :- later date. Paragraph 44 is relied upon, which reads as under:
"44. To sum up, we hold that:
(A)Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B)If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C)When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D)If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E)Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
(F)Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G)The quota for recruitment from the different sources may be prescribed by executive instructions, if W.A. No. 2607 of 2005 -: 9 :- the rules are silent on the; subject., (H)If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I)The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J)The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position."
He also relied upon the Constitution Bench judgment in Rabindra Nath Bose and others v. Union of India and others (AIR 1970 SC 470), wherein it was held that each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years and it would be unjust to deprive them of the rights which have accrued to them. Yet another judgment relied upon is K.R. Mudgal & Others v. R.P. Singh & Others, (1986) 4 SCC 531. Paragraph 7 is relied upon, which read as under:
"..................It is essential that anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary W.A. No. 2607 of 2005 -: 10 :- objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R.S. Makashi v.I.M. Menon. In the said decision this Court observed at p. 100 of the Reports thus: (SCC p. 400, para 30) "In these circumstances, we consider that the High Court was wrong in overruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition insofar as it related to the prayer for quashing the said Government Resolution should have been dismissed."
10. The short question therefore which arises for consideration is whether the petitioner's seniority in the position of Assistant Executive Engineer and Executive Engineer is to be re-worked, taking into consideration the promotion given to respondents 3 to 5. In fact the 5th respondent was removed from the party array. The petitioner was appointed as Assistant Engineer only on 10.6.1982. It is not in dispute that on the date when the respondents 3 and 4 were promoted as Assistant W.A. No. 2607 of 2005 -: 11 :- Executive Engineer, the petitioner was not in service. The petitioner in fact challenged the promotion given to the 5th respondent as Assistant Executive Engineer by filing O.P. No. 7442/1983. Ext. R5(c) is the judgment by which this Court disposed of the original petition by directing that the order dated 9.3.1984 shall be communicated to the petitioner. Ext. R5(b) is the order dated 9.3.1984 by which the petitioner's claim for promotion to the cadre of Assistant Executive Engineer is declined. Therefore, it is clear that when the petitioner had already challenged the promotion of the 5th respondent and the same came to be rejected as per Ext.R5(b), the petitioner is not entitled to re-agitate the said claim on a later occasion. In that view of the matter the learned single judge was justified in not interfering with Ext.P5 and P6.
11. Petitioner's promotion to the post of Assistant Engineer was regularised with effect from 23.9.1980. Petitioner was promoted as Assistant Executive Engineer on 25.8.1986, whereas the 3rd and 4th respondents were provisionally promoted to the said post with effect from 7.1.1982, and the 5th respondent on 25.10.1983. All such appointments were provisional.
12. The main contention urged by the appellant is that the provisional promotions given to respondents 3 to 5 cannot be taken into consideration, while preparing the seniority list.
13. Appellant has a claim that he should have been given promotion from the date his juniors were promoted. He heavily relies upon Exts. P3, P13 and P14. In Ext.P13, counter affidavit filed in O.P. No. 5042/1986 Government has taken a stand that W.A. No. 2607 of 2005 -: 12 :- Ext.P3 is a valid seniority list. In Ext.P14 judgment dated 15.10.1987 in O.P.No.5042/1986 this court has upheld the validity of Ext.P3, though on a slightly different set of facts. In Ext. P13, counter affidavit, respondents 1 and 2 therein, the Commissioner and Secretary to Government, Local Administration Department and the Director of Municipalities, have stated in paragraph 4 as under:
"4. M/s. T.V. Balan Nambiar, John Bosco and S. Haridasan were degree holders. At the time of the provisional appointment of M/s. T.V. Balan Nambiar and John Bosco to the cadre of Assistant Executive Engineer with effect from 7.1.1982 against the vacancies set apart for degree holders there were no other Assistant Engineers (previously Junior Engineer) possessing degree in Engineering. Similarly, Sri. S. Haridasan was provisionally promoted as Assistant Executive Engineer with effect from 2.10.1983 before the issue of Exhibit P1. Moreover the promotion of all these three incumbents to the cadre of Assistant Executive Engineer was purely on a provisional basis. They are only entitled to the emoluments attached to the post of Assistant Executive Engineer, only."
It is further indicated that regular appointment to the post of Assistant Engineer can be made by applying the ratio of 6:4 between direct recruits and promotees only after the KPSC hands are made available. The counter affidavit is verified and signed W.A. No. 2607 of 2005 -: 13 :- on 9th October, 1986.
14. In O.P.No.5042/1986, a claim was made by one N. Haridas, who was provisionally promoted as Assistant Engineer on 22.2.1979. He acquired graduation in November, 1984. His complaint was regarding his regularization of appointment as Assistant Engineer as he was entitled to get promotion as Assistant Executive Engineer. He sought for quashing Ext. P1, which is Ext. P3 in this case and sought for regularization of his service as Assistant Engineer from the date of appointment complying with the ratio 6:4 between direct recruits and promotees and thereafter to give him promotion in the degree holders quota as Assistant Executive Engineer in the vacancy which occurred immediately prior to his degree. The 3rd respondent is the petitioner herein. This Court held that when the turn of the petitioner in the said case in that category of departmental promotees is only 18 and 2 more seniors were to be regularised, the petitioner will have to wait for his turn in accordance with the ratio as also his rank among the promotees. In the said case, this Court had relied upon Ext. P3 (Ext. P1 in the said case), which was the stand taken by the respondents also. Therefore, it is contended that a different stand cannot be taken by the respondent in the case on hand.
15. Having regard to the aforesaid contention, this Court, by order dated 5th March, 2012, has observed as under:
"We have gone through the contents of Exhibits P3, P13 and P14. After referring to these documents, we note, there is no clarification so far as the date on W.A. No. 2607 of 2005 -: 14 :- which respondents 3 to 5 were regularised in the post of Assistant Executive Engineer, though they were provisionally promoted on 7.1.1982 so far as respondents 3 and 4 and 25.10.1983 so far as fifth respondent."
Thereafter, when the matter was again taken up for hearing, Government Pleader was granted further opportunity to get instructions with regard to the date on which the 3rd respondent was regularised as Assistant Executive Engineer. The said oder reads as under:
"Though this Court has already directed the learned Government Pleader to obtain instructions regarding the date with effect from which the 3rd respondent was regularised as Assistant Executive Engineer, even now, instructions have not been obtained. We do agree with the counsel for the appellant that there is no justification for keeping the matter pending any longer. Still, in order to ensure that an undeserved benefit is not given to anybody, we give the learned Government Pleader another opportunity to get instructions in the matter. Accordingly, the case is adjourned to next week, as a last chance."
Apparently, there is no material to indicate as to when the 3rd respondent was regularised as Assistant Executive Engineer.
16. Taking into consideration the aforesaid factual issues, it is clear that the 3rd respondent was appointed as W.A. No. 2607 of 2005 -: 15 :- Assistant Engineer on provisional basis and thereafter as Assistant Executive Engineer again on provisional basis. The appointment of the 3rd respondent as Assistant Engineer was made since there were no direct recruits available at the relevant point of time in order to have the ratio fixed as 6:4. Though the probation of the 3rd respondent was declared on 23.8.1980, Ext. P3 indicates that he was regularised only with effect from 1.1.1983 and the inter se seniority between the 12 persons would indicate that the 3rd respondent was Sl. No. 19 and the petitioner was shown as Sl. No. 1 in the seniority list. Though it is contended by the 3rd respondent that Ext. P3 list was not made known to any person, it is clear from Exts. P13 and P14 that the administration has relied upon Ext. P3 which has been taken note by this Court. Therefore, the existence of Ext. P3 cannot be denied. The only question that remains is whether there is any change in Ext. P3 seniority list depending upon the date on which the petitioner and respondents were regularised in the respective posts.
17. Exts. R3(2) and (4) produced by the 3rd respondent would show the list prepared by the Department showing the Superintending Engineers, Executive Engineers and Assistant Executive Engineers of Municipal Common Service. Provisional list prepared on 17.8.2002 is Ext. R3(2) and final list is prepared on 13.7.2004, which indicates that the 3rd respondent was senior to the petitioner. Apparently, the said list is prepared during the pendency of the writ petition. There is no challenge to the said list. There is no material to indicate as to when the 3rd W.A. No. 2607 of 2005 -: 16 :- respondent was regularised in service. It is relevant to note that this issue had been raked up since 1994 alone and certain representations were given by the petitioner.
18. Let us now analyse the case law relied upon by either side. The Supreme Court in K. Madalaimuthu (supra) held that a person who is appointed temporarily to discharge the functions in a particular post without recourse to the recruitment rules, cannot be said to be in service till such time as his appointment is regularised. In Ashwani Kumar (supra) Supreme Court referring to a three-Judge Bench judgment in State of Haryana v. Haryana Veterinary & AHTS Assn. [(2000) 8 SCC 4] held that for determination of seniority only regular service rendered by the employee is to be counted and not ad hoc service. In Jagdish Narain Chaturvedi (supra) it is held that ad hoc appointment is always to a post but not to the cadre/service and is not made in accordance with the provisions contained in the recruitment rules for regular appointment. The position of law in this regard is well settled, but as rightly contended by the learned counsel for the 3rd respondent, there are certain situations when the normal rule cannot be made applicable. The Constitution Bench judgment in Direct Recruit Class-II Engineering Officers' Association & (supra), held that, if the quota rule is not followed continuously for a number of years due to impossibility the inference is that the quota rule had broken down and when the appointments are made from one source in excess of the quota after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees W.A. No. 2607 of 2005 -: 17 :- from the other source inducted in the service at a later date. In Rabindra Nath Bose (supra), wherein it was held that each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago should not be set aside after the lapse of a number of years and it would be unjust to deprive them of the rights which have accrued to them. In K.R. Mudgal (supra) it is held that anyone who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties.
19. From the averments made in the counter affidavit of the 2nd respondent it is clear that the quota rule was not adhered to for quite a long time in the absence of selection of direct recruits. In the process appointments were made to fill up the posts by promotion to the post of Assistant Engineer and thereafter in the absence of qualified hands to the post of Assistant Executive Engineer. Therefore as held by the Constitution Bench in Direct Recruit Class-II Engineering Officers' Association & (supra), when the quota rule is not followed continuously for a number of years due to impossibility it has to be inferred that the quota rule had broken down and when the appointments are made from one source in excess of the quota after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. Hence we do not think that the seniority assigned to W.A. No. 2607 of 2005 -: 18 :- respondents 3 and 4 should be disturbed in any manner.
20. What remains is the claim for seniority of the petitioner with reference to the date on which 3rd respondent was promoted. As held by the Supreme Court in the judgments relied upon by the learned counsel for the petitioner and as discussed above, if the appointment of the 3rd respondent was provisional in the post of Assistant Executive Engineer, and he was promoted as Executive Engineer after the petitioner was regularised in service in the post of Assistant Executive Engineer, definitely, the petitioner can claim seniority in the post of Executive Engineer at least from the said date. The point that requires to be considered is the date on which the 3rd respondent was regularised in service. There is no material to come to such a finding other than Ext. P3. But, Ext. P3 is now superseded by Exts. R3(2) and (4). Under what circumstances such a deviation has been made is not known. If the petitioner was regularised before regularising the 3rd respondent in the post of Assistant Executive Engineer, he is entitled for the benefits that would have accrued to him with effect from the date on which the 3rd respondent was promoted to the higher post. But since he has not worked in the higher post, his entitlement will be however limited to fixation of pay on that basis, but he will not be entitled to claim any arrears of pay or allowances on account of such re- fixation, till the date on which the order is passed.
21. The learned Single Judge has dismissed the writ petition on the ground of delay and laches and to avoid unsettling W.A. No. 2607 of 2005 -: 19 :- the seniority. We have already held that there is no necessity to unsettle the seniority given to party respondents 3 to 5. However, as already indicated, the petitioner, if he was eligible to be promoted during the relevant time, should be given the benefits as indicated above.
In the result, this writ appeal is allowed, setting aside the judgment of the learned Single Judge with the following direction:
The petitioner is permitted to submit a fresh representation to the 1st respondent and the same shall be considered by the first respondent in the light of the observations made above and appropriate orders passed within a period of three months from the date of receipt of the said representation.
Sd/-
Ashok Bhushan, Ag. Chief Justice Sd/-
A.M. Shaffique, Judge.
Tds/ (True copy) P.S to Judge.