Central Administrative Tribunal - Delhi
Sudhanshu Kumar Khare vs Union Of India on 1 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 1281/2000 New Delhi this the 1st day of July, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) 1. Sudhanshu Kumar Khare, s/o M.L. Khare, ASP, CBI, SCB, Sahkarita Bhawan, 2nd Floor, Vidhan Sabha Marg, Lucknow, U.P. 2. Venkateshwarlu Chandu, Dy. SP/CBI/SCB 2nd Floor, CGO Complex, Block No.3, Lodhi Road, New Delhi. 3. Dilip Kumar Barik, ASP, CBI, ACB, Ist Floor, CGO Complex, Block No. 4, Lodhi Road, New ADelhi. 4. Madhu Sudan Singhal, ASP, CBI, ACB, Plot No.8, Sector 30-A, Chandigarh. 5. T. Rajesh Balaji, ASP, CBI, SCB, 2nd Floor, CGO Complex, Block No.4, Lodhi Road, New Delhi. 6. Vivek Priyadarshi, ASP,CBI, ACB, Ist Floor, CGO Complex, Block No. 4, Lodhi Road, New Delhi. 7. Nirbhay Kumar, ASP, CBI, ACB, CGO Complex, Ghaziabad, U.P. .Applicants (Through Shri R.K. Adsure and Shri Atul B. Dakh, Advocates) Versus 1. Union of India Through its Secretary, Department of Personnel & Training, Ministry of Personnel, Pension & Public Grievances, North Block, New Delhi-110001. 2. Central Bureau of Investigation, Through its Director, Head office, Block No.3, CGO Complex, Lodhi Road, New Delhi. 3. Union Public Service Commission Through its Secretary, Dholpur House, Shahjahan Road, New Delhi. 4. Sh. D.N. Chaudhary, s/o late R.R.Chaudhary, r/o 128, Type IV, North West Moti Bagh, New Delhi. 5. Sh. Chetan Kumar, s/o Sh. R.P. Sharma, r/o Flat No. 72-0C, Pocket C.G.I, Vikas Puri, New Delhi. 6. Sh. S.C. Tiwari, s/o Late G.D. Tiwari, r/o Quarter No. 55, Type IV, Sector III, Sadiq Nagar, New Delhi. 7. Sh. K.L. Bansal, s/o Shri C. M. Bansal, r/o House No. 111, Pocket H-32, Sector-3, Rohini, New Delhi-110085. (Respondents Nos. 4 to 7 impleaded as per the order of Tribunal dated 24.9.2001 and already appeared through Adv. Mukesh Kumar Gupta) 8. K.S. Joshi, the then DSP, CBI, SCB-II, New Delhi (retd.) 9. Bhupinder Kumar, SP, CBI, EOW. II, New Delhi. 10. Rajani Ranjan Sahay, SP, CBI, SCR.II, New Delhi. 11. Kapil Deo Misra, the then DSP, CBI, SU, New Delhi. 12. M.K.Bhat, SP, CBI, BS&FC, New Delhi. 13. B.N.Sharma, the then DSP, CBI, ACB, Kolkata (retd.). 14. D.R.S. Yadav, the then DSP, CBI, Dhanbad (retd.). 15. Raj Kumar Shukla, the then DSP, CBI, Jabalpur (retd.). 16. R.C. Choudhary, SP, CBI, AHD, Ranchi. 17. V.A. Mohan, SP, CBI, ACB, Jabalpur. 18. E. Narayanan, SP, CBI, BS&FC, Mumbai. 19. R.P. Kaushal, SP, CBI Academy, Ghaziabad. 20. Vijay Kumar, SP, CBI, SCR. III, New Delhi. 21. Devinder Singh the then DSP, CBI, SIU.VIII, New Delhi. 22. Surender Paul, SP, CBI, SCR.I, New Delhi. 23. Satvir Singh Saini, the then DSP, CBI, BSFC, New Delhi (retd.). 24. J.C.Prabhakar, the then DSP, CBI, STF, New Delhi (retd.) 25. P.Christopher, the then DSP, CBI, Kolkata (retd.) 26. Ramnath Azad, AD (IPCC), CBI, New Delhi. 27. D.S. Naruka, the then DSP, CBI, SIC-1, New Delhi (retd.) 28. M.C. Sahni, SP,CBI, ACU.V, New Delhi. 29. Keshav Mishra, SP,CBI, EO.I, New Delhi. 30. M.S. Sunder Rajan, SP, CBI, Bhubaneshwar. 31. Vijay Kumar Bindal, SP, CBI, STF, New Delhi. 32. S.K. Peshin, SP, CBI, EOU.VI, New Delhi. 33. Ganesh Verma, SP, CBI, ACU.III (AC.I), New Delhi. 34. James Kurian, the then DSP, CBI, 0/o JD(N), New Delhi. 35. R.S. Panwar, ASP, CBI, SCB, Mumbai. 36. Ashwani Kumar, SP (HQ), CBI, New Delhi. 37. Ram Mohan Krishna, the then SP, CBI, SCB, Lucknow (retd.) 38. Y. Chellathurai, the then DSP, EOW, Chennai (retd) 39. S. Vijay Kumar, SP, CBI, BSFC, Kolkata. 40. Hardev Raj Chopra, the then DSP, CBI, ACB, Chandigarh. 41. K. Thomas, the then DSP, CBI, EOW, Mumbai. 42. Prabhat Chander Sharma, SP, CBI, SU, New Delhi. 43. Arun Kumar Sharma, SP, CBI, ACB, Lucknow. 44. S. Venkataraman, SP, CBI, BSFC, New Delhi. 45. S.R. Majumdar, SP,CBI, ACB, Kolkata. 46. V.K.C. Reddy, the then DSP, CBI, MTNL, Madras. 47. Ravi Dutt Kalia, SP, CBI, ACU.VII, New Delhi. 48. R.K. Chaubey, the then SP, CBI Academy, Ghaziabad (retd.) 49. Thomas John, SP, CBI, ACB, Nagpur. 50. R.S. Punia, SP, CBI, SCR.II, New Delhi. 51. M.K.Kumaran, SP, CBI, ACB, Kolkata. 52. D.N. Biswas, the then DSP, CBI, ACB, Kolkata. 53. S.S.R.Gavali, the then DSP, CBI, EOW, Mumbai. 54. L.M.Majhi, ASP,CBI, ACB, Raipur. 55. Rigzin Upasak, ASP, CBI, ACB, Shimla. 56. Viswanath, ASP, CBI, ACB, Jabalpur. 57. Digvijay Bahadur Singh, the then DSP, CBI, Ranchi (retd). 58. Surinder Koul, the then DSP, CBI, SIU. XVI, Jammu. 59. Ved Prakash Sharma, the then DSP, CBI, SIU. XVI, Jammu. 60. Pramod Mudbhatkal, the then DSP, CBI, STF, Mumbai. 61. Javed Siraj, ASP, CBI, ACB, Srinagar. 62. Devinder Singh Mann, the then DSP, CBI, Agartala. 63. Mangat Rai Shori, the then DSP,CBI, ACB, Mumbai. 64. R.P. Rathadania, the then DSP, CBI, ACU.VIII, New Delhi. 65. Ranjan Biswas, the then DSP, CBI, ACB, Kolkata. 66. Prem Kumar, the then DSP, CBI, ACB, Chennai. 67. S.K.Kapoor, the then DSP,CBI, MDMA, New Delhi. 68. N.S. Kharayat, the then DSP, CBI, SIU. IV, New Delhi. 69. K.L.Raina, the then DSP, CBI, INTERPOL, New Delhi. 70. Sunit Kumar Sharma, the then DSP, CBI, ACB, Bhopal. 71. D.C. Dwivedi, ASP, CBI, ACB, Ranchi. 72. Bhagwan Singh, the then DSP, CBI, SIC,Delhi (retd.) 73. T. Das, ASP, CBI, ACB, Shillong. 74. A. K.Saha, the then DSP, CBI, ACB, Kolkata (retd.) 75. Prithvi Raj K.Mankar, the then DSP, CBI, BSFC, Mumbai. 76. Naresh Kumar Sharma, the then DSP, CBI, ACB, Silchar. 77. S.C. Gupta, ASP, CBI, ACB, Pune. 78. Shamsher, the then DSP, CBI, ACB, Nagpur. 79. Joginder Nayak, AIG (P-II), CBI, New Delhi. 80. P.L.Meena, the then DSP, CBI, SIC.IV, New Delhi. 81. K.Y.Guru Prasad, the then DSP, CBI, ACB, Bangalore. 82. Raj Kumari Saini, the then DSP, CBI, Co-ordination, New Delhi. 83. D.P.Singh (Retd.), the then DSP, CBI, SIC.II, New Delhi. 84. S.K. Kashyap, SP, CBI, SU, New Delhi. 85. SPS Dutta, the then DSP, CBI, MDMA, New Delhi. 86. G.B. Rao, the then DSP, CBI, SCB, Chennai. 87. A.P.Gopalkrishnan, the then DSP, CBI, BSFC,Bangalore. 88. N.P.Rajeevakshan, the then DSP, CBI, RAC. 89. Sayed Sajid Ali, the then DSP, CBI, ACB,Delhi. 90. V.K. Raghu Kumar, the then DSP, CBI, ACB, Chennai. 91. R. Raju, SP, CBI, SU, Chennai. Respondents ( Respondent Nos. 8 to 91 impleaded as per order of Honble High Court dated 27.5.2009 in Writ Petition ( C) No. 1823 of 2002 and as per order of this Honble Tribunal dated 10.8.2009 in M.A. No. 1411/2009 in OA No. 1281/2000 and all of them are already served by CBI Head Office) (Through Ms. Jyoti Singh with Shri Padma Kumar S, Advocates) O R D E R Mr. L.K. Joshi, Vice Chairman (A) :
The inter se seniority of direct recruit and promotee Deputy Superintendents of Police (Dy. SPs for short) in the Central Bureau of Investigation (CBI for short) as on 1.01.1999 is the core issue in this OA. The Applicants, who are the direct recruit Dy. SPs in the years 1997 and 1998, are aggrieved that in the seniority list as on 1.01.1999, which was issued on 6.08.1999, the promotee Dy. SPs from serial number 89 in the list, i.e., K.S. Joshi upto serial number 175, i.e., V.K. Raghu Kumar, who were promoted between 1991 and 1994 beyond the prescribed quota of promotes, have been placed en bloc above the direct recruit Dy. SPs, including the Applicants. It may be mentioned that in the aforesaid list, the officers at serial number 95, 125 and 126 are direct recruits. The following relief has been sought:
That the Honble Tribunal may be graciously pleased to set aside the impugned seniority list as on 1.1.99 and issue directions for preparing afresh the seniority list of departmental DSPs of CBI placing the 84 ad-hoc promotees (from Sl. No.89 to 175 of impugned seniority list excluding Direct Recruits at Sl. No.95, 125 & 126) below the Direct Recruits and preparation of year wise roster in the ratio of 2:3 till 1997 (under 1987 RRs) and 2:5 after 1997 (under 1996 RRs) and issue further directions for holding a review DPC and giving promotions to the applicants as Addl.SP/SP/SSP from the date their immediate junior (as per the revised seniority list) has been promoted and giving all consequential benefits from the due date and within a fixed time frame.
2. The following facts are important.
The Recruitment Rules for the posts of Dy. SP first came into existence in the year 1963, when the Special Police Establishment (Executive Staff) Recruitment Rules 1963 (Rules of 1963 for short) were notified. The Rules of 1963 provided for 15 per cent of the posts to be filled by promotion and remaining 85 per cent by transfer/ deputation. There was no provision for direct recruitment in these Rules. These Rules were amended in the year 1987, when the Special Police Establishment (Executive Staff) Recruitment (Amendment) Rules 1987 were notified. The method of recruitment provided in these Rules envisaged (i) 30% by promotion, failing which by transfer on deputation, (ii) 50% by transfer on deputation/ transfer, (iii) 20% by direct recruitment through the Civil Service Examinations conducted by the Union Public Service Commission (UPSC). These Rules were further amended in the year 1996 when the Central Bureau of Investigation (CBI) (Senior Police Posts) Recruitment Rules, 1996 were notified. These Rules provided for filling up of (i) 50% posts by promotion, failing which by transfer on deputation, (ii) 30% by transfer on deputation/ transfer and (iii) 20% by direct recruitment. A note in column 11, i.e., method of recruitment also stipulated that the above percentage shall apply to posts and not to vacancies. Note 2 in the same column reads thus:
Note-2: The regular incumbents of the posts of Deputy Superintendent of Police in the scale of pay of Rs.2000-3500 in (Rs. 650-1200 pre-revised) Group B Gazetted on the date of notification of the related rules will be deemed to have been appointed to the post of Deputy Superintendent of Police in the scale of pay of Rs. 2200-4000 (Group A Gazetted) at initial Constitution. (emphasis added)
3. The number of posts of Dy. SPs in 1987 Rules has been shown to be 157. The same has increased to 289 in the 1996 Rules. Between 1987 to 1996, the provision for promotion was 30 per cent. Therefore, only 86 posts existed for the purpose of promotion, as contended by the learned counsel for the Applicants. In the seniority list, the person at serial number 1, namely, J.S. Waraich, is a direct recruit. Thereafter, the persons from serial number 2 to serial number 41 in the seniority list are those who were promoted prior to 1987. From serial number 42 to serial number 174 are the persons who have been promoted after 1987. Parshotam Lal at serial number 42 was promoted on 12.07.1988 and V.K. Raghu Kumar at serial number 175 was promoted on 28.06.1996. They are the promotees between 1987 to 1996. The case of the Applicants, as expounded by the learned counsel for the Applicants, is that as per the Rules of 1987, there was quota only for 86 promotees. The Dy. SP at serial number 88 and 95 are direct recruits. The argument is that the Applicants have no grudge against the Dy. SPs who are placed in the seniority list from serial number 2 to serial number 87, as they have been promoted as per the prescribed quota of 86 for the promotes. The promotees from serial number 89 to serial number 175 are in excess of the quota and are, therefore, fortuitous promotees. Since the Rules provide for rota-quota system, the Applicants should have been adjusted from serial number 89 onwards, instead of being placed below all the promotees upto serial number 175.
4. The Applicants had initially filed this OA on 12.07.2000, which was decided by order dated 28.01.2002, when the OA was dismissed as having no merit. The Applicants herein had carried the matter to the Honourable Delhi High Court in W.P. (C) number 1823/2002, which was decided on 27.05.2009. The Honourable Delhi High Court remanded the matter for fresh consideration to this Tribunal on the ground (a) that the promotee Dy. SPs from serial number 89 to 175 (excluding serial numbers 95,125 and 126 had not been made parties in the OA and (b) that the Tribunal had not examined the issue that the Rules of 1987 did not empower the Respondent CBI to relax the Rules, meaning thereby that there is no specific power for filling up of the post by promotion in excess of the prescribed quota under the rules.
5. The notices on all the private Respondents, excepting those who have retired or are no more, have been served through the Respondent CBI and some of them have also filed their counter affidavits, which are placed on record.
6. The learned counsel for the Applicants would contend that the Respondent CBI did not have any power to relax the conditions in the Rules of 1987. Such power was given to the Respondents only in the Rules of 1996. It is pointed out that the Respondent CBI had sought permission for relaxation of the Recruitment Rules by diversion of vacancies in direct recruitment quota to the promotion quota by letter dated 29.12.1987 addressed to the UPSC. The UPSC by its letter dated 16.02.1988 (Annex P-5) agreed to the relaxation of Rules to the extent of diversion of 11 posts falling in direct recruitment quota to promotion quota. However, the following observation was also made by the UPSC:
Against the total strength of 161, the distribution amongst the categories referred to above are actually 3 against 32 under direct recruitment, 38 against 80 under deputation/transfer, and 92 against 49 under promotion. It is also observed that no direct recruitment has been made since 1978. Thus, it is seen that provisions of Recruitment Rules have virtually remained unimplemented by not having made any direct recruitment for about a decade, and against 49 posts under promotion quota there are actually 92, which indicates that a large number of officers have been promoted on adhoc basis against the vacancies falling under other quotas. The commission express serious concern at the lack of efforts on the part of the department to resort to direct recruitment at appropriate time which could have avoided the present imbalance. (emphasis added)
7. Later, by a letter dated 29.03.1990 (Annex R-7), the UPSC agreed for diversion of 19 vacancies from direct recruitment quota to promotion quota. The learned counsel for the Applicants would strenuously contend that when such power of relaxation had not been conferred by the Rules of 1987, mere acquiescence of the UPSC to the relaxation of Rules would not justify such relaxation. It is contended that the relaxation is absolutely illegal. Advertence has also been made in this context to the OM No.22011/7/86-Estt.(D) dated 3.07.1986 of the Department of Personnel & Training (DoP&T), relevant portion of which reads as follows:
2.4.2 (DPT OM No.35014/2/80-Estt.(D) dt. 7.2.88) If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruit and the promotees.
In other words, the extent direct recruits are available the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent year where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year.
ILLUSTRATION: Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled by promotion and the remaining 50% by direct recruitment, and assuming there are ten vacancies in the grade arising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under 1986 1987
1. P1 9. P1
2. D1 10. D1
3. P2 11. P2
4. D2 12. D2
5. P3 13. P3
6. D3 14. D3
7. P4 15. P4
8. P5 16. D4 P5 D5 D6 D7 2.4.3 In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed.
2.4.4 With a view to curbing any tendency of underreporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if may, exceeding the share failing to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as ad hoc promotees. (emphasis added)
8. The learned counsel would contend that even the UPSC in its letter dated 16.02.1988 expressed that the promotees in excess of their quota were ad hoc promotes. It is contended that it was because of sheer inaction on the part of the first and the second Respondents, namely, the DoP&T and the CBI that direct recruitment was not made. Therefore, it is not a case of breakdown of rota-quota system, which could justify promotion in excess of quota. It is contended that it has now been well settled by the Honourable Supreme Court that rota-quota system cannot be considered to have broken down if there is inaction on the part of the Government to fill up the posts on the basis of direct recruitment. The learned counsel has relied on N.K. Chauhan and others Vs. State of Gujarat and others, (1977) 1 SCC 308, U.P. Secretariat U.D.A. Association through its Joint Secretary, G.C. Srivastava and others Vs. State of U.P. and others, (1999) 1 SCC 278, M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and others Vs. State of Maharashtra and others, (1996) 11 SCC 361, State of Maharashtra and another Vs. Sanjay Thakre and others, 1995 Supp (2) SCC 407 and Suraj Prakash Gupta and others Vs. State of J&K and others, (2000) 7 SCC 561. The learned counsel would contend that the Honourable Supreme Court has consistently held that if the State Government could not make direct recruitment due to its inaction, it cannot be said that the rule of rota-quota has been broken down.
9. The Respondents, on the other hand, have vehemently contended that the contention of the Applicants is not tenable. It is submitted that the Respondents had been making efforts for direct recruitment after coming into force of Rules of 1987. The learned counsel for the Respondents has placed before us a copy of the counter affidavit of the Respondent CBI in Writ Petition (C) No.1823/2002. Advertence has been made to the reply to paragraphs 12 to 17, which reads as under:
Para 12-17 The contention of the applicant that the departmental Dy.SsP were promoted in excess of the quota prescribed for them is not correct. Prior to 1988 there was no direct recruitment of Dy. Supdt. of Police through Civil Service Examination. UPSC used to sponsor candidates on receipt of demand from the CBI from the left over IPS officers. However due to certain observations made by the Delhi High Court in the Delhi Administration case, UPSC advised that in future all the vacancies are to be notified to them for filing the same through Civil Service Examination. Thereafter, the CBI started notifying the vacancies to the UPSC for sponsoring suitable Dy. SPs to the CBI. The UPSC started sponsoring the candidates from the Civil Services Examination from 1989 onwards. The year wise break-up of officers appointed as a direct recruit Dy.SsP on the basis of Civil Service Examination is given in the following table:-
Civil Services Examination for the year No. of candidate sponsored by UPSC No. of candidates who joined CBI as Dy. SP No. of candidates who did not join CBI 1989 2 1 1 1990 5 4 1 1991 - - -
1992 1 1 -
1993 3 1 2 1994 5 2 3 1995 10 7 3 1996 10 8 2 1997 11 8 3 1998 11 9 2 1999 - - -
During the years 1983, 1984 and 1985 a total of 51 posts of Dy. SP were filled, out of which 27 posts of direct recruitment quota were converted and utilized under promotion quota in relaxation of recruitment rules as per the concurrence of UPSC conveyed in their letter no. F-11/5/84-AU-IV dated 18.4.84 & communicated to CBI vide DP&T letter no. 202/40/81-A VD.II dated 27.4.84.
Similarly, a total of 50 posts of Dy. SP were filled during the year 1988, 1989 and 1990, out of which 30 posts of direct recruitment quota were diverted and utilized under promotion quota (due to non availability of Dy. SP from direct recruitment quota) as per concurrence of UPSC given in their letter No. F-11/2/88-AU-IV dated 16.2.88 (communicated vide DP&T letter No. 213/4/87- AVD.II dated 2.3.88 (Annexure R-6) and No. F-11/9/90-AU.I dated 29.3.90 (Annexure R-7). Further, a total of 30 posts of DSP were filled during the year 1993, out of which 18 posts of direct recruitment quota were diverted and utilized under promotion quota vide DP&T U.O. No.213/1/92-AVD.II dated Nil received in CBI on 10.11.93 (Annexure R-8).
From the table given at aforesaid para it is quite apparent that though UPSC sponsored a good number of candidates to join as Dy. SP in CBI but at the same time a large number of candidates did not join CBI. As a result, CBI had to resort to fill the vacancies from the available promotees by way of diverting the Direct Recruitment Quota and that too after taking due approval of the DP&T as well as UPSC. These diversions of quota were resorted to in the year 1983 to 1993 and has no relevance to the fixing of seniority of those Dy.SsP (like the applicants) who have joined CBI much later i.e. in the year 1997 onwards. This has also been contested by the Applicants in the rejoinder affidavit. It is urged that the Respondent CBI has never made any requisition to the UPSC for direct recruitment. The UPSCs notice for the Civil Services Examination 1987, 1988, 1991, 2001 and 2002 have been placed on record to show that the posts of Dy. SPs are not included in these notifications. The copies of the annual reports of the DoP&T of 1999 and 2000, in which mention of the services included in the Civil Services Examination, 1997 has been given, the annual report of the DoP&T for the year 2000-01, in which the services included in the Civil Services Examination 1999 have been mentioned, the copy of the DoP&Ts annual report of 2001-02, in which the services included in the Civil Services Examination 2000 have been mentioned, have also been placed on record. It is pointed out on the basis of these records that there has never been any requisition for the posts of Dy. SPs by the first and the second Respondents. It is further contended that the table given in the reply of the Respondent CBI before the Honourable Delhi High Court in the aforesaid Writ Petition, quoted by the Respondents, the quota of direct recruits has been completely distorted. It is, therefore, stated forcefully that there has been total inaction on the part of the Respondent CBI to recruit candidates directly for the posts of Dy SPs and only sporadic attempts have been made for getting direct recruits.
10. The learned counsel for the Applicants has also contended that the Respondent CBI accepted before the Honourable Delhi High Court that it had no power under the Rules of 1987 to relax the Rules. In this context, our attention has been drawn to paragraph 4 of the order of the Honourable Delhi High Court in the aforesaid Writ Petition, which reads thus:
4. In compliance with the directions as contained in the aforesaid order, an affidavit has been filed by the CBI. In this affidavit it is conceded by CBI that there is no provision either under recruitment rules 1963 or 1987 which empowers the respondent to relax the rules, meaning thereby that there is no specific power for filling up of the post by promotion in excess of the prescribed quota under the rules. The contention on behalf of some of the Respondents that there is an inherent power vested in the Government to relax the Rules under Section 21 of the General Clauses Act, has been repelled by sating that there was no inherent power vested in the role making authority. In so far as Section 21 of the General Clauses Act is concerned, it only provides that the rule making authority would have the power to amend the Rules also. Section 21 of the General Clauses Act reads thus:
21. Power to issue to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
11. It is submitted that the aforesaid Section only provides that an authority, which has made the Rules, can amend those Rules also. It is contended that the Respondent CBI never amended these Rules till 1996 when the Rules of 1996 were notified. The learned counsel would contend, placing reliance on Ajit Singh and others (II) Vs. State of Punjab and others, (1999) 7 SCC 209 that promotions made in excess of the quota would only be ad hoc promotions. In this context the following observations of the Honourable Supreme Court in Ajit Singh-II (supra) have been brought to our notice. The observations are reproduced below:
89. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases In S.D. Gupta and others (supra), the observations of the Honourable Supreme Court in this context read thus:
8. It is then contended that the direct recruits were not born in the service when the promotees were promoted and equity requires that they cannot be pushed down. The object of direct recruitment is to blend talent and experience to augment efficiency when direct recruits, though came from green pastures, were imbued with dedication and honesty. So long as system continues, consequences are inevitable. The question of equity does not arise. Shri Krishnamani then contended that direct recruits are shown temporary and so they cannot be similar to promotee substantive appointees. The quota of 60% of direct recruits is to substantive vacancies, though their initial appointment is temporary; on completion of period of probation they become substantive appointees. That is the settled principle of law in this behalf. The Tribunal, therefore, is not right in giving direction to consider their fitment vis-a-vis the order passed by this Court in their quota above the direct recruits. In Keshav Chandra Joshi and others Vs. Union of India and others, 1992 Supp (1) SCC 272 also it was held that :
Ad hoc or fortuitous appointments on a temporary or stop gap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis. To give benefit of such service would be contrary to equality enshrined in Article 14 read with Article 16(1) of the Constitution as unequals would be treated as equals. When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1) Reliance has also been placed on The Direct Recruit Class-II Engineering Officers Association and others Vs. State of Maharashtra and others, AIR 1990 SC 1607. The learned counsel for the Applicants would cite the following observations of the Honourable Supreme Court:
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. Incidentally, the Respondents have also placed reliance on the same judgement on the basis of the following observations of the Honourable Supreme Court in paragraph 44 (E):
44 (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. The Applicants have, however, serious objection to this interpretation on the ground that neither the quota rule has broken down nor the appointments have been made following the procedure prescribed under the Rules.
12. On the basis of above considerations, it would be right to infer that non-filling of the posts of direct recruitment has been because of lack of serious efforts on the part of the first and second Respondents and because of this inaction on their part, it cannot be said that rota-quota system has broken down. It is also clear that the Rules of 1987 did not provide for relaxation in the Rules and, therefore, the diversion of direct recruitment posts for promotion by relaxation would not be legal for want of any authority under the Rules.
13. The Respondents have also raised the issue that the Tribunal may not unsettle the settled position. It is contended that the Applicants have been claiming seniority over the promotee Dy.SPs, who were promoted several years before the Applicants were borne in service. It is contended that the private Respondents were regularized in group `A service on coming into force of 1996 Rules and it would be an absurd proposition to accord to the Applicants seniority over the private Respondents. There are thus two arguments advanced by the Respondents. First, that the private Respondents have been regularized by virtue of the Rules of 1996. It may be recalled that note 2 in column 11 of the Rules of 1996 provides that the regular incumbents of the posts of Dy. SPs would be deemed to have been appointed to the post of Dy. SP in Group `A at initial constitution. The contention of the learned counsel for the Respondents is that by virtue of note 2, the promotee Dy. SPs have been deemed to have been appointed to the posts of Dy. SPs Gazetted. This has been seriously objected to by the Applicants. The learned counsel for the Applicants would point to the specific mention in note 2, quoted in the forgoing paragraph 2 of this order, at the outset that only The regular incumbents of the posts would be deemed to have been appointed in Group `A Gazetted posts of Dy. SPs. It is submitted that the promotee Dy. SPs from serial number 89 to 175 were not regular incumbents of the post of Dy. SP Group `B. It is argued that the regular incumbents would only be those, who were promoted within their quota. Therefore, only promotees upto serial number 87 in the seniority list can be said to have been regularized in Group `A as a result of the notification of Rules of 1996. Ad hoc and fortuitous promotees, promoted outside their promotion quota cannot be called as regular incumbents and, therefore, they would not be deemed to have been promoted to Group `A Dy. SPs. The Respondents have also placed reliance on Suraj Prakash Gupta (supra), on the observation of the Honourable Supreme Court that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. It has further been observed in paragraph 79 of the above judgement that a direct recruit cannot claim seniority from the date when he was not borne in service. This argument has been countered by the Applicants arguing that they are not seeking seniority from a retrospective date. They are only seeking seniority from the date of their appointment. Their case is that the ad hoc and fortuitous promotees should not be placed above them in the seniority list. We agree with this argument. The Respondents also relied on Bimlesh Tanwar Vs. State of Haryana and others, JT 2003 (2) SC 610, in which the Honourable Supreme Court held that a settled seniority position should not be unsettled. This has also been contested by the Applicants stating that the seniority position has not been settled because they had challenged the same immediately after the list was published, first by making representations to the Respondents and later approaching this Tribunal. The Respondents have also placed reliance on a very strong observation of the Honourable Supreme Court in A. Janardhana Vs. Union of India and others, AISLJ 1983 (1) SC 564. The Honourable Supreme Court observed thus in paragraph 37 of its judgement:
37. Before we conclude this judgment, we will have qualm of conscience if we do not draw attention to a very unjust, unfair and inequitable situation having a demoralising effect on public services probably ensuing from certain rules framed by the Government and the decisions of this Court. Even where the recruitment to a service is from more than one source and a quota is fixed for each service, yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming. The Government for exigencies of service, for needs of public services and for efficient administration, promotes persons easily available because in a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient 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 and some decisions especially the ratio in Jaisinghani's case as interpreted in two B. S. Gupta's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy. He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service. A mandamus issued in Jasinghani's case led to a situation where promotees of the year 1962 had to yield place to direct recruits of 1966 and the position worsened thereafter. In the case in hand, appellant a promotee of September 27, 1962 is put below N. K. Prinza who appeared at competitive examination in April 1976 i.e. one who came 14 years after the appellant, and it does not require an intelligent exercise to reach a conclusion that 14 years prior to 1976 Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12 years and must have been studying in a primary school. Shorn of all service jurisprudence jargon let us bluntly notice the situation that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee. If this has not a demoralising effect on service we fail to see what 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 Arts. 14 and 16. Mr. Ramamurthi, learned counsel for some of the direct recruits in this connection urged that if at the time when the promotee was recruited by promotion, his appointment/promotion was irregular or illegal and which is required to be regularised, any subsequent direct recruit coming in at a later date can seek relief and score a march over such irregular or illegal entrant. We find it difficult to subscribe to this view. Though we have dwelt at some length on this aspect any enunciation of general principle on the lines indicated by us would require a reconsideration of some of the decisions of this Court. We say no more save that we have solved the riddle in this case in accordance with the decisions of this Court and interpretation of relevant rules. This has also been repelled by the Applicants by arguing that the facts in the instant OA are not as grim as in A. Janardhana (supra). The Applicants are not trying to unsettle someone from seniority as in the above cited case where a person, fourteen years junior to the promotee officer, tried to unsettle his seniority. It is stated that the private Respondents have been promoted only after 1991 and that the Applicants are direct recruits of 1997 and 1998 batch and that their selection process had started from the year 1995 onwards. Thus, it is contended, that there is no significant time gap between the promotion of promotees and direct recruitment of the Applicants. It is submitted in the rejoinder that the Respondent CBI for reasons best known to itself suppressed the vacancies of direct recruits in the relevant years in reporting to the UPSC. It is reiterated by the learned counsel for the Applicants that the Applicants had challenged the seniority list immediately after it was issued and for any delay because of pendency of the case before this Tribunal and the Honourable Delhi High Court, they cannot be blamed of seeking relief after a lapse of very long time thereby trying to unsettle the settled position. This argument of the Applicants also cannot be brushed aside.
14. To sum up, it is our considered opinion that the first and the second Respondents have been remiss in not taking any action for direct recruitment after coming into force of the Rules of 1987 and, therefore, it cannot be said that the rota-quota rule has broken down. The argument of the Respondents that relaxation in the Rules had been made also cannot be considered to be correct, in view of the fact that the Rules of 1987 did not provide for any relaxation. We do not agree that there is any inherent power with the Respondents to relax the Rules. The power of relaxation has been made only in the Rules of 1996. Merely because the UPSC agreed to relaxation, it would not make the wrong right. We are also unable to agree that the private Respondents became deemed group `A Dy. SPs by operation of Rules of 1996 (note 2) because the aforesaid note provides only for regularization of regular incumbents and the private Respondents, being in excess of the quota, are only ad hoc and fortuitous promotees. The argument that the Applicants are seeking seniority retrospectively is also mythical. The Applicants are only challenging seniority of private Respondents and also cannot seek retrospective seniority. They are seeking seniority only from the date they were borne in service. Last, the time gap between the seniority of the Applicants and the private Respondents is not so vast as to shock the judicial conscience as in the case of A. Janardhana (supra). The Applicants have been challenging the seniority list from the time it had been issued. The delay in deciding their claim is only because of protracted litigation in this matter, for which they cannot be blamed.
15. On the basis of above consideration, the OA succeeds. The impugned seniority list of Dy. SPs as on 1.01.1999 is set aside to the extent that the Applicants have been placed below the promotee Dy. SPs from serial number 89 to 175 in the aforesaid seniority list. The official Respondents would take steps to reconstitute the seniority list by following the prescribed roster in the Rules of 1987 and Rules of 1996. The aforesaid exercise would be completed within a period of four months from the receipt of a certified copy of this order. The Applicants would be eligible for all consequential benefits occurring from the amendment of the aforesaid seniority list of Dy. SPs as on 1.01.1999. There will be no order as to costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/