Gujarat High Court
A.N. Trivedi And Ors. vs State Of Gujarat And Anr. on 11 April, 1988
Equivalent citations: (1988)2GLR1123
JUDGMENT P.M. Chauhan, J.
1. Petitioners, the directly recruited District Inspectors Land Records (hereinafter referred to as "DILRs") have moved this Court by Special Civil Application under Article 226 Constitution of India for appropriate writ and for quashing and setting aside the provisional seniority list of DILRs issued by the Government vide Circular No. SNR 1177/62295-H, dated 24th August, 1978 and final seniority list of direct recruits and promotee DILRs issued by the Government vide G.R. No. SNR-1177/62295-H, dated June 5, 1979 for the period from May 1, 1960 to December 31, 1972 (Annexure ("A" & "D") and also for quashing the orders in the cadre of DILRs and SLRs made in case of promotees with effect from the formation of the Gujarat State till the date of petition, contending that the said gradation list and the orders passed by the respondents Nos. 1 & 2 are violative of Articles 14 and 16 of the Constitution of India and is otherwise illegal and invalid. The petitioners also seek the direction to respondent No. 1 to refix the seniority in accordance with the principles settled by this Court in Special Civil Application No. 1330 of 1969 and to re-arrange the seniority reflecting the ratio and quota as per the recruitment Rules right up from May 1, 1960, and for declaration that the promotee officers were not entitled to any deemed dates and the petitioners were required to be allotted seniority in the list, when the permanent posts of direct recruits were available but not filled in right from May 1, 1960 and thereafter till February 2, 1968, and also for a direction to respondents to give all consequential benefits to the petitioners in the matter of fixation of pay, allowances, promotion to the higher posts, arrears of pay and allowances.
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2. The final gradation list of Officers of DILRs cadre in the Land Records Department as on April 30, 1960 was published by the Government of Maharashtra, Revenue & Forest Department by G.R. No. Est. 1071/ 253320(1) V, dated July 9, 1974. The State of Gujarat was formed on May 1, 1960. The Government of Bombay, vide Revenue Department Resolution No. Est/3456/L, Bombay, August 25, 1956, in supersession of the orders issued in G.R. No. 7191/45, dated October 25, 1948, decided that the recruitment to not less than 30% of the posts of DILRs which were approximately equivalent in status to the posts of second grade Mamlatdars should be made on the result of competitive examination to be held by the B.P.S.C. It was also directed by the said resolution that the competitive examination for the post of DILRs and for the post of probationary Mamlatdars should be common. The Government accordingly deleted the Rule 17A in Appendix "D" and substituted the Rules 5 & 6 in Appendix "C" of the Bombay Civil Services (Classification & Recruitment) Rules, 1939. The Rule 5 in Appendix "C" provided for filling up the vacancies by promotion from among persons in the subordinate service of the Land Records Department or by nomination, on the results of a competitive examination held by Public Service Commission. Requisite qualifications for direct recruits were also provided by the said Rules. So far as the proportion of the promotees and direct recruits for the post of DILR is concerned, Rule 5 provided that not less than 30% and not more than 50 % of the vacancies shall be filled by nomination and the rest by promotion. Rule 6 provided for the probation for 3 years and for passing other qualifying examination etc.
3. The contentions of the petitioners are that the seniority list is prepared contrary to statutory requirement of Rules and also against settled legal position as enunciated by the Supreme Court in case of N.K. Chauhan and the decision of Gujarat High Court in Special Civil Application No. 1330 of 1969 which laid down principles regarding fixation of seniority amongst direct recruits and promotees in the cadre. It was not open to the State Government to depart from the mandatory provisions of Rules which provided for the direct recruitment to the extent of not less than 30% and not more than 50% of vacancies in the posts of DILRs. According to petitioners their recruitment was made against the permanent vacancies and therefore the seniority was required to be fixed according to the confirmation and not on the basis of continuous officiation in the post. Their grievance is that by fixing the seniority of promotees they are pushed up in the vacancies available for direct recruits in each year and that is violative of principles of seniority laid down by the Supreme Court in case of N.K. Chauhan (supra). As such, the pronouncement of Supreme Court in case of N.K. Chauhan was based on specific provisions in the Rules which provided for ratio of promotees and direct recruits "as far as practicable". According to petitioners they should have been assigned seniority in the gradation list for the vacancies which are available right up from 1960 and which posts were not filled in by the respondent-State though it was not practicable or not feasible to fill up the requisite quota of direct recruits. They also made a grievance that even though three officers were already promoted from 1957 to 1959 are assigned the seniority in the gradation list.
4. Appointments to the posts of DILRs were previously governed by the Bombay Civil Services (Classification and Recruitment) Rules, 1939. In Appendix "A" of the said Rules, services in the various departments of the Government were specified. Under the Revenue Department the posts of Deputy Collectors and Mamlatdars or DILRs were included in the Class I provided in the Bombay Civil Services Rules. Said Rule only provided that the DILRs and subordinate land records services are included in the inferior services to DILRs. Rule 7 empowered the Government to prescribe the qualifications etc. for the admission to the provisional and subordinate services. Appendix "C" of the Rules provided the Rules prescribing the qualifications of candidate dates and method of recruitment to the services in the posts. It was prescribed in Clause 5 of said Rules that the vacancies shall be filled in by promotion of persons of proved merits and efficiency from their ranks of subordinate services of Land Record Department. In the year 1956, the Government initiated to make provision for the direct recruitment in the post of DILRs, and accordingly, by the Resolution No. Est/3456/L, Bombay, dated August 25, 1956 (Annex. "B") the Government in supersession of the orders issued in G. R. No. 7191/45 dated October, 25, 1948 decided "that recruitment to not less than 30 % of the posts of DILRs which were approximately equivalent in status to the posts of second grade Mamlatdars should bs made on the results of competitive examination to be held by the Bombay Public Service Commission". It was also directed that the competitive examination for the post of DILRs and for the posts of Probationary Mamlatdars should be common, i.e. in accordance with GRs. No. 9313/45, dated 24-7-1951 and 21-5-1953. The Government accordingly delated Rule 17A in Appendix "D" and substituted Rules 5 & 6 in Appendix "C" of the said Rules. Rule 5 which is more relevant for the purpose of present litigation was as follows:
5. Vacancies shall be filled by:
(a) promotion from among persons in the suberdinate service of Land Records Department who have passed the Land Records Qualifying (obligatory) Examination, or
(b) Nomination, on the results of a competitive examination held by the Commission in accordance with the Rules stated in Annexure to Rule 2 above of persons holding degree in Arts, Science, Agriculture, Commerce, Law or Engineering of a recognised University who are not more than 25 years of age.
Provided that not less then 30 % and not more than 50% of the vacancies shall be filled by nomination and rest by promotion.
Rule 6 provided for the appointment on probation and for passing of examinations. Subsequently on October 10, 1967, the Government of Gujarat in exercise of its powers under Article 309 of Constitution of India enacted the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 which repealed the Bombay Civil Services Classification and Recruitment Rules, 1939 and any other Rules corresponding thereto in force immediately before the coming into force of the said Rules. Rule 17 of Gujarat Rules saves the action taken under the repealed Rules. Subsequently on July 10, 1970, the Government of Gujarat in exercise of powers conferred by the proviso to Article 309 of Constitution of India enacted the Land Records Department (General State Services) Class II Officers Recruitment Rules, 1970. Rule 2 provided that "the said Rules shall apply in the case of recruitment to the posts", viz.
(i) District Inspector of Land Records,
(ii) Special District Inspector of Land Records,
(iii) Survey Mamlatdars,
(iv) Assistant Consolidation Officers,
(v) Office Superintendents,
(vi) City Survey Superintendents,
(vii) City Survey Mamlatdars.
in General State Service, Class II of the Land Records Department. The said Rules were enacted in supersession of all the existing Rules relating to recruitment to the posts specified hereinabove. On enquiry as to whether above referred 1956 Rules were subsequently amended or any such Rules were enacted after the above referred Gujarat Rules of 1967 came in force and from 1967 to 1971 when above referred Rules of 1970 came in force, the learned Advocates for parties could not enlighten the Court. If there were no Rules in existence from 1967 when the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 were enacted by which the above referred Bombay Rules were repealed, the position would be that after that date there was no statutory provision for the quota of direct recruits for the posts of DILRs.
5. From the above discussion of statutory position as reflected in the relevant Rules, it is clear that by Rules 5 and 6, the reservation of posts of DILRs to the extent of 30% was made. That reservation was for the posts of DILRs and for no other posts. On formation of Gujarat State, the Government of Gujarat in General Administration Department by Resolution No Est/1060(I), dated May 1, 1960 sanctioned the creation of new temporary and permanent posts. In that resolution the sanctioned strength of the existing posts in various cadres in Land Records Department was specified. There were 31 posts of Assistant Consolidation Officers and two more posts were created. Similarly, there were 9 posts of Survey Mamlatdars and 13 posts of DILRs (Gr. II) and one post of O.S. to Dy. DILR (Gr.II) and the said posts appear to be equal in rank in the pay-scale of Rs. 250-15-325. There were, therefore, such 56 posts in existence on May 1, 1960. Out of said posts, there were only 13 posts of DILRs. It is clear from the said resolution as well as from the Rules of 1970 that there were above referred various posts in the Land Records Department and all the posts were not DILRs. The fact is also clear from the advertisement issued by the Public Service Commission in January, 1968 (Annex. "E") by which the applications were invited for the 3 posts of DILRs, Survey Mamlatdat and Assistant Consolidation Officer. The said posts were, therefore, distinct posts and not the posts of DILRs. As such, in the year 1960, there were only 13 posts of DILRs. It is not stated by the petitioners that the strength of said posts was increased subsequently. The Rules of 1956 provided for the minimum 30% and maximum 50% of posts for direct recruitment of the District Inspectors Land Records only and not for other posts. It was obligatory on the part of the Government therefore to directly recruit upto 30% of vacancies in the posts of DILRs. The total strength of DILRs was only 13 as on May 1, 1960, and it is not stated that the strength was subsequently increased, and therefore, there could not have been 11 or more vacancies in those posts in the year 1960. Similarly, there could not have been 13 vacancies in the posts of DILRs in the year 1963. It is obligatory on the petitioners who assert their right on the strength of the quota allocated under the Rules for being considered seniors to promotees alleging that the promotions were given to the departmental candidates in violation of the quota of direct recruits, to establish that fact. The petitioners have failed to establish that the vacancies occurred in the posts of DILRs and the Government purposely failed to fill the said vacancies. Petitioners have proceeded on the assumption that the Rules provided for the quota of 30% of vacancies in Class 2 posts in the Land Records Department, or in various other 5 to 6 categories of posts as specified above. It appears that the Government has also proceeded on that assumption. The final seniority list was prepared in the year 1978-79, and therefore, it appears that the Government had in view the Rules of 1971 and proceeded to prepare the seniority list on that basis. However, it is clear that the provisional and final gradation lists are prepared for the cadre of DILRs and not for the posts of DILRs. It may be that the Government might have considered equal number of posts in the cadre of DILRs. Merely because the Government had committed mistake that does not confer any right on the petitioners to get their seniority on the basis of quota of minimum 30% in all other Class 2 posts in the Land Records Department. They can assert their right in the quota of 30% only in the posts of DILRs. They have not stated as to how many vacancies had occured during the relevant period in the posts of DILRs. Petition deserves to be dismissed on that ground.
6. The petitioners' grievance is that the Government while preparing the gradation list and fixing the seniority has not followed the principle of fixing seniority as laid down by the Supreme Court in the case of N.K. Chauhan v. State of Gujarat . The Government while rejecting the objections raised by the petitioner, Shri G.V. Sompura, stated that the Government has followed the principles laid down by the Supreme Court in the case of N.K. Chauhan (supra).
7. Shri S.H. Parekh has deposed in his affidavit that the seniority list of the cadre of DILRs is prepared keeping in view the principles of law enunciated in N.K. Chauhan's case considering the facts, contentions of petitioners should be rejected.
8. Shri Hathi submits that the judgment in case of N.K. Chauhan (supra) was decided on the basis of specific provisions of Rules providing for promotion as Deputy Collectors on adhering to the quota "as far as practicable". The submission of Shri Hathi cannot be accepted as the judgment of Supreme Court in case of N.K. Chauhan (supra) deals with two different situations. Before the amendment in the relevant Rules in 1966, the Government promoted Deputy Collectors even though the existing Rules provided for the quota for the direct recruits. The Rules, however, provided that the "ratio of appointment by nomination and promotion shall, as far as practicable, be 50 : 50". Considering the said Rules the Supreme Court held that so far as the promotions of Mamlatdars as Deputy Collectors during the period of 1960-62 was concerned, the Government had power to relax the quota and promotions were legal and valid and did not upset the seniority and promotion of Mamlatdars. So far as the post 1963 period was concerned, Supreme Court considered the relevant provisions and the general principles of administrative jurisprudence and held that when the mala fide is not established the promotees who have been fitted into the vacancies beyond their quota must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up and to that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota. As the rival contentions are based on the law laid down by the Supreme Court in case of N.K. Chauhan (supra), I think it is desirable to extract the relevant observations of the Supreme Court. The Rules considered by the Supreme Court did not provide the method of allocating the quota and also the manner in which the seniority should be computed. Similar is the position in the Rules for consideration by me. It is observed:
If any promotions have been made in excess of the quota set apart for the Mamlatdars after Rules in 1966 were made, the direct recruits have a legitimate right to claim that the appointees in excess of the allocable ratio from among Mamlatdars will have to be pushed down to later years when their promotions can be regularised by being absorbed in their lawful quota for those years. To simplify, by illustration, if Deputy Collectors' substantive vacancies exist in 1967 but 8 promotees were appointed and two direct recruits alone were secured, there is a clear transgression of the 50 : 50 Rule. The redundncy of 3 hands from among promotees cannot claim to be regularly appointed on a permanent basis. For the time being they occupy the posts and the only official grade that can be extended to them is to absorb them in the subsequent vacancies allocable to promotees. This will have to be worked oui down the line wherever there has been excessive representation of promotees in the annual intake.
It is also observed:
The quota Rule does not, inevitably invoke the application of the quota Rule. The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim 'deemed' dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits' vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.
9. Reverting to the contentions in the instant case, it is clear from the affidavit of Shri S.H. Parekh, Deputy Secretary to the Government of Gujarat, Revenue Department that after formation of Gujarat State on May 1, 1960, the Government had made sincere efforts for direct recruitment. It is stated that in the year 1960, there were 11 vacancies against temporary posts and in the year 1961 one more vacancy in the temporary post had occurred. In the year 1961 five vacancies in the permanent posts were likely to occur because of the retirement of incumbents. It was the policy at that lime to operate quota rule in respect of permanent posts because appointing direct recruits on temporary posts might lead to hardship in case the temporary posts were abolished. That was the reason for filling the vacancies against temporary posts in the year 1960 by promotees. As vacancies in 5 permanent posts were likely to arise in the year 1961, the requisition, dated March 10, 1961 was sent to GPSC for two posts to be filled by the direct recruits. The GPSC because of administrative difficulties did not conduct examination for the said posts and therefore no recommendation was received from it for the two posts. In the year 1961, no promotion was made to the post of DILRs. In the year 1962 no vacancy had occurred but in view of the fact that no recommendation was received from GPSC for the direct recruitment in the year 1961, requisition was again sent to GPSC for two posts proposed to be filled in by the direct recruits. The GPSC then issued advertisement on April 30, 1962 for two posts but no recommendation was received from GPSC for the above said posts of DILRs. In the year 1962, no departmental incumbent was promoted to the post of DILR. In the year 1963, there were 13 vacancies against temporary posts and only four vacancies against permanent posts which included two vacancies because of retirement and two for non-recommendation by GPSC. The requisition, dated September 3, 1963 was sent for four posts but no recommendation was received from GPSC, and therefore, in the year 1963, ten persons were promoted as DILRs. It is stated by Shri Parekh that upto 1964, it was the general policy not to allocate the quota to direct recruitment for the temporary posts as it would create difficulties in case the temporary posts were abolished. But in the year 1964, the Government, by circular, dated January 10, 1964 directed that the temporary posts existing in the cadre for two years and likely to be continued for further period of one year or more should be taken into account while deciding the quota of direct recruits in accordance with the requirement of Rules providing for the direct recruitment. Shri Parekh also stated that the requisition, dated September 15, 1964 was sent to GPSC for two posts and the GPSC recommended two candidates, but they did not join as DILRs. In that year only one person was promoted. In the year 1965, there was only one fresh vacancy, even then the requisition was sent to GPSC for two posts and after holding competitive examination, the GPSC recommended only one name, but he did not join the post. In that year only one person was promoted. In the year 1966, there were five vacancies which were due to non-recommendation and non-joining of direct recruits as stated above. The requisition, dated June 1, 1966 was sent to GPSC for six posts proposed to be filled in by direct recruits in the year 1966 and 1967 and the GPSC after holding competitive examination, by letter, dated September 22, 1967 and January 22, 1968 recommended six persons out of them one did not join and the five out of whom, three are the petitioners, joined the service. Shri Parekh also stated that in the year 1967, there were two vacancies and in view of likely vacancies in the year 1968, the GPSC was requisitioned for three posts in October. 1967 and three names were recommended and they were appointed by the Government order, dated November 16. 1968 and they include petitioner, Shri V. Sompura and L.T. Parmar. In the year 1968, there was no fresh vacancy, but on account of retirement in near future, requisition was sent to GPSC for three posts and the GPSC recommended three names, out of which only one, petitioner No. 5, Shri B.C. Patel joined. In the year 1970, four vacancies and in the year 1971 two more vacancies occurred, but the direct recruits who had completed probation period were adjusted against the said vacancies and no promotions were made. From what is stated by Shri Parekh, it is clear that sincere efforts were made by the Government from the year 1960 to 1968 for direct recruitment. It appears that the posts might not be much attractive, the selectees did not prefer to join. It is evident that the Public Service Commission could not recommend names at the initial stage and subsequently when recommended some of the selectees did not join service probably because the posts might not be so attractive. In the gradation list the seniority of 9 direct recruitees is fixed. From the seniority list it appears that five of them joined in the year 1968, three in the year 1969 and one in the year 1971. The seniority of the said officers is fixed considering the actual date of continuous officiation and similarly seniority of promotees is fixed on that basis but five of them are made to step down below 8 direct recruits even though their actual date of continuous officiation was prior to that of the date of direct recruits who were appointed in the year 1968-69. It is also clear from the seniority list that no promotions appear to have been made after 1967 and all the 9 vacancies were filled in by the direct recruits from 1968 to 1971.
10. The seniority is fixed as per the principles laid down by the Supreme Court in case of N.K. Chauhan. Inspite of sincere efforts the Government could not get direct recruits upto 1967 and therefore all 35 vacancies upto 1967 were filled in by the promotees, but eight of them who were not brought on unconditional list were not included in gradation list and only 27 promotees promoted from 1960 to 1967 were included and their seniority is fixed. It is deposed by Shri Parekh in his affidavit that the seniority in the cadre of DILRs has been prepared keeping in view the principles of law enunciated by the Supreme Court in case of N.K. Chauhan. About the promotees, he has stated that the seniority of the promotees has been computed from the date of their first officiating appointment subject to condition that amongst the promotees those who had been brought on the unconditional list earlier had been placed above those promotees who were placed in the unconditional list subsequently and those who were not brought on unconditional list were kept at bottom. For fixing seniority of direct recruits, Shri Parekh has deposed that their seniority has been fixed from the date of their appointment and in case of appointments on the same date, the rank given by the GPSC has been followed while fixing seniority inter se "Year" was adopted as a unit for operating the quota rule and every year all endeavour was made to fill in vacancies which fell under the direct recruit quota. That fact is also reflected in the final seniority list published by the Government.
11. From the statement (Annex. "B") filed by the respondents along with affidavit of Shri V.N. Shaparia, Under Secretary to the Government of Gujarat, Revenue Department, it is evident that from the year 1960 to 1969 in all 35 vacancies occurred and all of them were filled in by the promotees at the initial stage. Out of said 35 vacancies 11 were filled in 1960, 1 in 1961, 13 in 1963, 2 in 1964, 1 in 1965, 5 in 1966 and 2 in 1967. As such, even accepting minimum quota of 30% out of all available posts during that period 25 vacancies would have been available for promotees and 10 for direct recruits. In the final gradation list seniority of 39 officers of the land records in the cadre of DILRs is fixed. Out of them 3 officers at SI. No. 17, 18 and 19 were promoted prior to 1960. 9 officers at SI. No. 26 to 33 and 39 are the direct recruits and the rest of them are the promotees from the year 1960 to 1967. It also transpires from gradation list that 9 incumbents promoted in the year 1960, 10 in 1963, 1 in 1964 and 1 in 1965, 5 in 1966 and 1 in 1967 are included in it and their seniority is fixed. It is stated by Shri B.D. Desai, learned Assistant Government Pleader that even though 35 vacancies were filled in from 1960 to 1967 by the promotees only the seniority of 27 is fixed in the final gradation list and other 8 of them were taken below SI. No. 39 as they were not brought on the unconditional list. Whatever may be the reason, but it is clear that in the final gradation list only seniority of 27 promotees who were promoted from 1960 to 1967 is reflected. Those who are not included in the seniority list do not appear to have made any grievance and are not parties before the Court, and therefore, it is not necessary to consider their case. It is clear from the seniority list that three officers shown at SI. Nos. 17, 18 and 19 were promoted prior to 1960, and therefore, their promotion cannot be said to be out of the available quota for promotees. As reflected in the gradation list, therefore, in the year 1967, only 2 promotees were surplus out of the available quota of 25 for the promotees. In the year 1968, 5 direct recruits, in 1969, 3 direct recruits were appointed. During that period, therefore, two promotees should have been stepped down, but instead of that 5 promotees at SI. Nos. 34 to 38 are made to step down, in the sense that their seniority is fixed below 8 direct recruits who are given seniority at SI. Nos. 26 to 33. In the year 1971 one direct recruit, Shri B.C. Patel was appointed and his seniority is filled at SI. No. 39. He was appointed in the available quota of 10 direct recruits. Therefore, if at all it would have been held that the minimum 30% in quota of ten was available to the direct recruits against the total number of vacancies of the officers in the Land Records Department, then in that case the petitioner, Shri B.C. Patel who was continuously officiating from April 16, 1971 should have been given seniority at SI. No. 37 instead of at S. No. 39 in gradation list. But as discussed above, that quota was not available to the direct recruits as 30%, of minimum quota was available against the vacancies in the post of DILRs only and also for the reason that from 1967 the Bombay Civil Service Classification & Recruitment Rules were repealed and no rule prescribing the quota existed from that date upto 1971. The advertisement for the recruitment of direct recruits by which Shri B.C. Patel was selected was issued in the year 1968 when no rule prescribing quota for direct recruits did exist.
12. In view of above discussion and observation, it is not necessary to refer several judgments of Supreme Court in which law relating to fixation of seniority in the gradation is laid down. However, I would like to refer them as it is evident that after the judgment in the case of N.K. Chauhan (supra), there is a shift in the views and gradually more importance is being attached to the date of continuous officiation in a particular cadre. In the case of A. Janardhana v. Union of India , the Supreme Court was considering Military Engineering Services Class I (Recruitment, Promotion and Seniority) Rules, 1951 and the observations regarding interpretation of those Rules are not much relevant for the purpose of the instant case. But observations made in last paragraph of the judgment indicate that the date of the continuous officiation of the promotees should be attached due importance and normally should not be disturbed by the direct recruits who come in service after considerable period, only because of the reason of the quota available to them. It is observed:
The Government for exigencies of service, for needs of public service and for efficient administration, promotees persons easily available because in a hierarchical service one hopes to move upward. After the promotee was promoted, continuously renders service and is neither found wanting or in efficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was born in service.
It is also observed that:
If this has not a demoralising effect on service we fail to see that other inequitous approach would be more damaging. It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid, or illegal according to relevant statutory or non statutory Rules should not be permitted by any principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of Articles 14 and 16.
Ashok Gulati and Ors. v. B.S. Jain and Ors. is another case in which the Supreme Court considered various judgments on the points including that of N.K. Chauhan (supra) and while approving extracted above said observations made in the case of A. Janardhana v. Union of India and agreeing with the observations in O.P. Singla v. Union of India , G.S. Lamba v. Union of India , P.S. Mahal v. Union of India and Pran Krishna Goswami v. State of West Bengal observed:
It must now be taken as well established after these decisions that in the absence of any other valid principle of seniority, the inter se seniority between direct recruits and promotees should as far as possible be determined by the length of continuous service whether temporary or permanent in a particular grade or post (this should exclude periods for which an appointment is held in a purely stopgap or fortuitous arrangement).
Supreme Court while expressing similar views in the case of A.N. Pathak and Ors. v. Secretary to the Government, Ministry of Defence and Ors. further observed:
The Rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the Rules strictly all that is necessary to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefits of their service.
13. Shri Hathi, learned Advocate for petitioners has referred to case of Sonal Sihimappa v. State of Kamataka and Ors. AIR 1987 SC 2359 : 1988 All India Services Law Journal, Vol. 27, Part-III page 139. The Division Bench of Supreme Court mostly relying on the judgment in V.B Badami v. State of Mysore allowed the appeal and the writ petitions of the direct recruits as the quota rule was not strictly enforced. That case was decided considering specific Rules and on the facts as the Government did not sincerely adhere to quota rule. As discussed above, in the instant case, it was clear inability of the Government to secure services of direct recruits, and therefore, the quota of direct recruits could not be fulfilled.
14. The petitioners have referred the judgment of this High Court in G.J. Mehta v. State of Gujarat, Special Civil Application No. 1330 of 1969 decided by Shri A.D. Desai and S.N. Patel, JJ. on March 9, 1972 and asserted for fixation of seniority on the date on which the quota of direct recruits was available right up from 1960. The learned Judges relied on the observations of Supreme Court in the case of S.C. Jaisinghani v. Union of India and Ors. . The Supreme Court has not approved the principle of fixing seniority in the case of Jaisinghani in subsequent judgments especially in N.K. Chauhan (supra) and Janardhana (supra). In view of that the seniority of the petitioners cannot be fixed as prayed for by them relying on the principle in judgment in case of G.J. Mehta (supra).
15. Shri Hathi, learned Advocate for petitioners also referred the judgment in case of Y.J. Dixit and Ors. v. State of Gujarat and Ors. in Special Civil Application No. 1145 of 1979 delivered by Shri B.K. Mehta, J. on 28/29 April, 1981. Judgment in N.K. Chauhan (supra) is referred and relevant paragraphs are extracted, but the relevant rule for consideration was not similar to the rule for consideration by the Supreme Court in case of N.K. Chauhan. In case of N.K. Chauhan, the relevant rule provided that the ratio of appointment by the nominees and the promotees shall be "as far as practicable be 50:50", while the rule for consideration by the learned Judge provided that "as nearly as may be one half of the vacancies in the cadre of Mamlatdars may be reserved for persons selected under Clause A". Considering the relevant Rules, the learned Judge distinguished the judgment in case of N. K. Chauhan. It is, however, clear that the observations relating to the period A in case of N.K, Chauhan i.e., for the period from 1960-62 were being considered by the learned Judge and not the law laid down for the period B. In the instant case the principle for fixing seniority as laid down by the Supreme Court in case of N.K. Chauhan, as discussed above should be followed.
16.Even though the observations in the case of Janardhana and Other cases referred above, are not in favour of promotees, the law laid down by three Judges of Supreme Court in the case of N.K. Chauhan (supra) still holds the field as it is not overruled or dissented in clear terms. It was a matter arising from judgment of this Court and interpreting mostly similar Rules. This Court, therefore, should follow the principles laid down by the Supreme Court relating to period B, as discussed above in case of N.K. Chauhan (supra). Even applying said principle the petitioners cannot get their seniority fixed above promotee DILRs as and when the quota for direct recruits were available every year from 1960 to 1967. Petitioners want their seniority fixed from 1960 to 1967 on the basis of available quota for direct recruits every year irrespective of date of joining service. That is not the principle laid down by Supreme Court in case of N.K. Chauhan. Only in the year 1968 when direct recruits were available the promotees who were in surplus quota should be made to step down and accordingly that is done by the Government while fixing the seniority in the gradation list.
17. Result is that the petition fails and dismissed with costs.