Central Administrative Tribunal - Ahmedabad
R.C. Yadav And Anr. vs Union Of India (Uoi) And Ors. on 12 January, 2004
Equivalent citations: 2005(1)SLJ117(CAT)
ORDER Shankar Prasad, Member (A)
1. A direct recruit Income Tax Inspector and promoted Income Tax Inspectors aggrieved with the draft seniority list dated 6.1.2003 published by the Chief Commissioner, Income Tax have filed O.As. 92/03 and 123/03 respectively. They have both amended the respective O.As. to challenge the final seniority list published during the pendency of the O.As. A common order will govern both these O.As.
2. The case of the directly recruited Income Tax Inspector is that he is entitled to seniority from the date of vacancy as advised by Department of Personnel in the case of Income Tax Inspectors of Chief Commissioner I, New Delhi. In any case the Principal Bench of the Tribunal in O.A. 2307/99 & Ors., decided on 23.2.2000 has held that direct recruits are entitled to seniority from the date of their selection by Staff Selection Commission and not from the date of their appointment. The CBDT should have issued general guidelines to implement this decision. Chief Commissioner Jaipur has finalised the seniority as per this decision.
The futher case of the applicant is that persons have been promoted in excess of quota and they should be pushed down.
The true construction of July 1986 circular of DOPT is that seniority has to be reckoned from date of vacancy.
3. The case of promotee inspectors on the other hand is that the department had published the draft seniority list in 1996 & 2000 and the same had been finalised/or had become final. These were also acted upon as persons have been promoted from these lists. Even after the time limit of filing objections had expired the department entertained objections against the 2000 list. Another direct recruit filed O.A. 251/02. The reply filed by the department asserted that the seniority has been properly assigned. During the pendency of the said O.A. the department published the impugned seniority list, which is challenged. The said O.A. was allowed to be withdrawn with permission to file fresh O.A. All the promotees have been promoted in their quota. The direct recruits can reckon their seniority only from the date of their appointment and not from any earlier date. This is settled by the judgments of Apex Court. July 1986 circular of DOPT is also to this extent. If action for direct recruitment is not initiated in time rota cannot be maintained by giving retrospective seniority from a date earlier than date of appointment.' The department could not have reopened settled matters of seniority after a long lapse of time, more so when they had been acted upon.
4. The case of the Income Tax Department on the other hand is that as the recruitment rules are silent the seniority can be prescribed by executive instructions. The executive instructions can provide that seniority can be reckoned from a date other than the date of appointment. The department has prepared the seniority list in accordance with the guidelines dated 3.7.86. The quota and rota have been taken into account. The seniority of promotees was fixed according to the vacancy year for which the DPC was conducted and seniority of direct recruit has been fixed according to the vacancy year for which intimation was sent to the SSC and dossiers were received from them. The Department of Personnel and Training have clarified that initiation of action for recruitment/initiation of recruitment process would refer to the date of sending the requisition to the recruting authority for particular recruitment year in question. This, therefore, is the true construction of July, 1986 circular. The July, 1986 instruction being in the nature of policy direction is subject to judicial review only on very limited grounds.
No persons have been promoted in excess of quota as per the statement made by the Counsel on 24.12.2003.
The decision of the Principal Bench has been set aside by the Delhi High Court and the matter has been referred back to the Principal Bench for decision.
5. We have heard the learned lawyer on behalf of the parties.
6. Secretary (Personnel), Secretary (Revenue) Government of India had also been impleaded as respondents in O.A. 2307/99 and three others before the Principal Bench. It noted that the short question is as to what is the precise date on which direct recruits are to be considered for placement in the seniority list of inspectors.
The Principal Bench noted that the department earlier in O.A. 1899/95 had taken the stand that date of appointment or year of joining was not the basis for fixing of seniority and the same was fixed on rota quota rule.
The stand taken now is that seniority of direct recruit has to be reckoned from the date he becomes available that is the date on which the dossiers is received from the commission.
The advice given by DOP & T and which is enclosed with the counter affidavit is as follows:
"It is not necessary that the DR for 1987 vacancy should join in 1987 itself. It would suffice if action has been initiated for 1987 DR vacancies in 1987 itself. This is because, in a case of direct recruitment, if the administrative action in filling up the post by DR takes more than a year or so the individual cannot be held responsible for such administrative delay and hence it would not be appropriate to deprive him of his due seniority for delay on the part of administration in completing his selection by direct recruitment. In fact ordinarily the process of direct recruitment takes more than a year to be completed and if DR is to join in the same year for getting seniority of that year then no DR will get seniority of the same year because as already stated the DR process takes more than a year. Hence, as already stated initiation of action for recruitment in sufficient."
(Emphasis provided).
7. The Principal Bench accordingly considered as to whether the precise date will be (i) the date on which vacancies have arisen (ii) the date when the same have been notified by the department by sending requisitions to Staff Selection Commission, (iii) the date on which selection by the Commission is made, (iv) the date when the selection is reported to the department or (v) the date on which the direct recruit actually assumes office.
The Principal Bench finally held as follows:
"9. We have heard the learned Counsel appearing for the contending parties at considerable length and we are of the view that as far as inter se seniority is concerned, the same has to be based on the vacancies arising for a particular year. Thereafter, the seniority has to be determined on the basis of rota quota rule which has been illustrated in the aforesaid illustration contained in the O.M. of 7.2.1986. As far as direct recruits are concerned, the crucial date on which they have to be considered will be the date when the Staff Selection Commission makes the selection of direct recruits. Hence the date of forwarding the dossier of direct recruits by the Commission to the department, date of actual joining or taking over charge by the direct recruit would also be irrelevant. It would be the date on which the Staff Selection Commission makes the selection of the direct recruits that will be the material date for fixing the seniority. This would avoid injustice being done on account of administrative delays, i.e., delay in the matter of issue of orders of appointment and posting and of actual taking over the charge. Similar will be the position in regard to promotees. It will be the date on which the promotee is selected for promotion by the departmental promotion committee. Hence the date on which the promotee actually assumes charge of the promotional post similarly will not be relevant. The seniority list which is impugned in the present proceedings, it appears, has not followed the instructions which we are now issuing in the present order."
(Emphasis provided).
8. The Delhi High Court in CWP 4604 of 2000 and other filed against these orders noted that the writ petitions revolve around interpretation of office circular dated 7.2.86 and 3.7.86. Delhi High Court observed as follows in Paras 19, 20 & 21.
"The question which was required to be taken into consideration was as to whether the said office memorandum should be read literally or with a view to find out as to whether it sought to suppress a mischief which led to an anomalous situation.
The learned Tribunal further failed to take into consideration the rival contentions as to whether the office notes in the file were merely clarificatiory in nature or thereby new directions were sought to be issued.
There cannot be any doubt whatsoever that a mere noting in the file does not confer any right but the same may be referred to for the purpose of construction of an office memorandum by way of a clarification. An office memorandum must be construed independent but the intention of the maker thereof may be found out from such clarification. There cannot, however, be any doubt whatsoever that such Office Notes can only supplant office memorandums and not supplement the same.
Although we have heard the learned Counsel appearing on behalf of the parties at great length, we may only notice the submission of Dr. Verghese representing the Department. Although it appears to be that the department has changed its stand from time to time the final stand taken before us by Dr. Verghese appearing on behalf of the Department is that by reason (illegible) office memorandum as also the Office of the Central Government (illegible) giving due leverage to the time which has been consumed by the Administration in filling up the vacancy. Thus, if for some reason or the other, the vacancies could not be filled up in a particular year and they are carried over to the next year, such vacancies may be considered to have arisen next year, but in the event the selection process continues but despite best efforts made by the department in this behalf, the same cannot be completed within a short time, the direct recruits should not suffer in the matter of seniority due to the lapse(s) on the part of the Administration. "
9. The High Court set aside the order and remitted the matter back for determination of crucial questions.
10. A copy of DOP&T advice dated 2.2.2000 signed by Under Secretary Shri K. Muthukumar and endorsed by Director to Estt. (B) has also been produced.
"Notes from p. 17 ante may please be seen with reference to our earlier note on p 9-10/ante.
With reference to 'X' on p.18 and 'Y' on p.19/ante, it will be clear from our note on Pp 9-10/ante that if action for the Recruitment Year 1986-1987 has been initiated at any time during that Recruitment Year even if the exam, is held in 1988 and the results are declared in 1989 and the candidates join only in 1990, since the action for recruitment was initiated in 1986-1987 itself merelly because the process of recruitment took so long for which the candidates cannot be blamed and since the responsibility for the delay in completing the process of recruitment squarely lies with the administration, it would not be appropriate to deprive the candidates of their due seniority of 1986-1987. Consequently, if action was initiated during the Recruitment Year 1986-1987 even if it culminates in the joining by the selected candidates only in 1990, they will get seniority of 1986-1987. This applies equally to DRs as well as promotees. In other words, if such DRs of 1986-87 ultimately join in 1990 yet they will be rotated with promotees of 1986-1987."
This advice was given during the pendency of O.As. in the Principal Bench.
11. It is thus clear that proper interpretation of February 1986 and July 1986 circulars of DOP&T is required. Each of three parties have relied on the same Paragraph 2.4.2 of July, 1986 circular in support of their claim.
12. As per Swamy's Complete Manual on Establishment and Administration, the Staff Selection Commission was set up in 1975 and started functioning in July 1976. It was set up for making recruitment to various posts notified in the resolution. A format has been prescribed for submitting the requisition to the Staff Selection Commission.
The amended annexure indicates that the letter number and the date of last requisition has also to be mentioned in the requisition sent to Staff Selection Commission and the following certificate furnished at the end of requisition.
"It is certified that
(a) Vacancies projected in this requisition are regular and all regular vacancies on date which fall within the direct recruitment quota have been included in this requisition and also the necessary sanction of the Government for these posts is available.
(b) The number of vacancies reserved for Scheduled Caste and Scheduled Tribes as mentioned in Col. 6 above is in accordace with the reservation quota fixed by Government for these communities.
(c) Candidates nominated against these vacancies shall be given appointment within a period of three months from the date of nomination."
13. We also note that the Department of Personnel and Administrative Reforms vide its letter dated 6.6.78 had laid down guidelines to regulate the seniority of direct recruits who report for duty after some delay. DOP & T letter dated 6.6.78 as amended vide letter dated August 1995 is as follows:
(i) An offer of appointment issued by different Ministries/ Departments, should clearly specify the period (which shall not normally exceed one or two months) after which the offer would lapse automatically if the candidate did not join within the specified period.
(ii) If, however, within the specified period, a request is received from the candidate for extension of time, it may be considered by the Ministries/ Departments but extension beyond three months should not be granted liberally and it may be granted only as an exception where facts and circumstances so warrant and in any case only up to a miximum of six months from the date of issue of the original offer of appointment. An offer of appointment would lapse automatically after the expiry of six months from the date of issue of the original offer of appointments. The candidates who join within the above period of six months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority.
(iii) If, even after the extension(s), if any, granted by the Ministry/Departments, a candidate does not join within the stipulated time (which shall not exceed a period of six month), the order of appointment should lapse.
(iv) An offer of appointment which has lapsed, should not ordinarily be revived later, except in exceptional circumstances and on grounds of public interest. The Commission should in all cases be consulted before such offers are revived.
(v) In a case where after the lapsing of the offer, the offer is revived in consultation with the Commission as mentioned in sub-para (iv) above, the seniority of the candidates concerned would be fixed below those who have already joined the posts concerned within the prescribed period of six months, and if the candidate joins before the candidates of the next selection examination join, he should be placed below all others of his batch. If, however, the candidate joins after some or all the candidates of the next selection examination have joined he should be-
(a) in case of selection through interview, placed at the bottom of all the candidates of the next batch;
(b) in case of examination, allotted to the next year's batch and placed at the bottom."
14. As far as the promotion is concerned, the consolidated guidelines of Department of Personnel & Training categorically provide that the panel should be prepared before the year commences. It has also been categorically stated that the requirement of annual meeting can be dispensed with only after a certificate had been issued by the Competent Authority that there are no vacancies to be filled by promotion.
It is also indicated that if for some reasons the DPC meeting could not be held earlier even though the vacancies arose that year, the first DPC that meets shall ascertain the actual number of regular vacancies that arose in each of the previous years and prepare the panel from the list of eligible candidates for each of these years.
15. The Ministry of Home Affaris circular dated 22.12.1959 laid down the general principles for determining seniority in the Central Services. Para 6 of the said circular laid down the relative seniority of direct recruits and promotees. It stated as follows:
"6. Relative seniority of Direct Recruits and Promotees. -The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules."
An explanatory memorandum was also enclosed with the said letter and the general principle 6 is as follows:
"General Principle 6,- A roster should be maintained based on the reservation for direct recruitment and promotion in the Recruitment Rules. Where the reservation for each method is 50% the roster will run as follows:- (1) Promorion (2) Direct Recruitment. (3) Promotion.(4) Direct Recruitment and so on. Appointments should be made in accordance with this roster and seniority determined accordingly.
Illustration. Where 75% of the vacancies are reserved for promotion and 25% for direct recruitment, each direct recruit shall be ranked in seniority below 3 promotees. Where the quotas are 50% each, every direct recruit shall be ranked below a promotee. If for any reason, a direct recruit or a promotee cases to hold the appointment in the grade, the seniority list shall not be rearranged merely for the purpose of ensuring the proportion referred to above."
16. It appears that pursuant to the decisions of the Apex Court a modified circular dated 7.2.86 was issued. Para 2 of the circular is extremely important for consideration of the issues and the same is as follows:
2. While the above mentioned principle was working satisfactorily in cases where direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas as prescribed, in cases where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did not become available, there was difficulty in determining seniority. In such cases, the practice followed at present is that the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees became available thorough later examinations or selections, such persons occupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was shortfall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also come up for consideration in various Court cases both before the High Courts and the Supreme Court and in several cases the relevant judgment had brought out the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service."
Para 7 of this instructions are also important and are as follows:
"7. These orders shall take effect from 1st March, 1986. Seniority already determined in accordance with the existing principles on the date of issue of these orders will not be re-opened. In respect of vacancies for which recruitment action has already been taken, on the date of issue of these orders either by way of direct recruitment or promotion, seniority will continue to be determined in accordance with the principles in force prior to the issue of this O.M."
17. This guidelines were futher explained by the letter dated 3.7.86. Paras 2.4.1 & 2.4.2 of this circular are as follows:
"2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2. If adequate number of direct recruits do not become availabe in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees."
An illustration has also been given to explain them.
18. The first question that naturally arises is as to what is meant by direct recruits and promotees. Do they refer only to persons actually appointed against direct recruitment quota and promotion quota only as the case may be?
19. The Apex Court in Prafulla Kumar Swain v. P.C. Mishra and Ors., 1993 Supp. (3) SCC 181 was amongst others considering the meaning of the term recruitment and appointment. It held:
"29. At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistment, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office.
30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II Service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that, after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotees. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment."
20. The Apex Court in Jagdish Chandra Patnaik and Ors. v. State of Orissa and Ors., (1998) 4 SCC 456, was considering the interpretation of Rule 26 of Orissa Service of Engineers Rules, 1941. The said rule is as follows:
"26. Seniority-(1) When officers are recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior to the officers directly recruited irrespective of their dates of joining the appointment.
(2) Between the two groups of promoted officers, those promoted from the rank of Sub-Assistant Engineers shall en block be senior to those promoted from the rank of Junior Engineers.
(3) Subject to provision of sub-rules (1) and (2) seniority of officers shall be determined in accordance with the order in which their names appears in the lists prepared by the Commission."
It held as follows:
"The expression "officers are recruited by promotion and by direct recruitment", necessarily means that when they are appointed as Assistant Engineers by the State Government. To import something else into the rule will neither be in the interest of justice, nor is it necessary in any manner, and it would tantamount to legislation by the Court. When the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, nor irrational nor contrary to the object of the statute, then it is the duty of the Court to give effect to the words used in the statute because the words declare the intention of the law-making authority best. In that view of matter, there is no justification to go into the question of quota meant for direct recruits and promotees, nor is it necessary to find out as to the year in which the vacancy arose against which the recruitment is made. On an analysis of the scheme of the Rules, it becomes clear that the expression "recruited" would mean appointed, and the expression "during the same year" in Rule 26 would mean during the calendar year and, therefore, direct recruits recruited during the calendar year would be junior to the promotees recruited during the said calendar year. The contention is rejected that quota should be taken into consideration while fixing inter se seniority under Rule 26. There has been no grievance by the appellant-direct recruits that there has been any excess promotion beyond the quota permissible for them and consequently such question does not arise for consideration, It is also not possible to accept the contention that the expression "recruitment" and "appointment" have two different concepts in service jurisprudence and, therefore, when Rule 26 uses the expression "recruited" it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started. The scheme of the Orissa Service of Engineers Rules, 1941, does not bear this interpretation. Under the scheme of the Rules, a person can be said to be recruited in service only on being appointed to the rank of Assistant Engineer. This is clear from Rules 5 and 6. Though the process of direct recruitment in the case of direct recruits starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. It is therefore difficult to hold that in the above-mentioned rules, the expression "recruited" should be interpreted to mean when the selection process rally started. Besides, the expression "recruited" applies not only to the direct recruits but also to the promotees. In the case of direct recruits, the process of recruitment starts when the Commission invites applications, and in the case of promotees, it starts with the nomination made by the Chief Engineer under Rule 16. However, in both cases, final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon, no person can be said to have been recruited to the service. The only appropriate and logical construction that can be made of Rule 26, is the date of the order under which the persons are appointed to the post of Assistant Engineer. This is the crucial date for determination of seniority under the said Rule.
There is no dispute that there is some time lag between the year when the vacancy accrues and the year when the final recruitment is made in accordance with the prescribed procedure but that would not give a handle to the Court to include something which is not there is Rule 26. Under this Rule, the year in which vacancy arose and against which vacancy the recruitment has been made, is not at all to be looked into for determination of inter se seniority between direct recruits and promotees. It merely states that during the calendar year, direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new rule of seniority. It is therefore not possible to accept the contention that the year in which the vacancy occurred is relevant for the purpose of determining the seniority irrespective of the year when a person was recruited."
21. The next question is as to whether a direct recruit can get seniority from a date earlier to his date of appointment. The answer is an emphatic no in the light of following decisions of Apex Court.
22. The Apex Court in the case of N.K. Chauhan v. Union of India (infra) had held that a direct recruit cannot gel a seniority from the date earlier to his date of appointment.
23. The Apex Court in the case of A. Janardhana v. Union of India, AIR 1983 SC 769 was concerned amongst others with the matter of applicability of quota rule and the date from which seniority can be reckoned in the case of direct recruits in the case of Military Engineering Service. It held as follows:
"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 Articles 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."
24. The Apex Court in A.N. Pathak v. Secretary Ministry of Defence, AIR 1987 SC 716 was considering the question when direct recruits appointed later in time were given seniority over the promotees to maintain quota rule.
It held:
" 13. The promotees come into service, not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service.
14. The learned Counsel for the respondents found it difficult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently learned in favour of the promotees based on their length of service and seniority, in case where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with this explanation since that is little consolation to the petitioners. We are of the view that the grievance of the petitioners is justified in law. 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 is 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."
25. The Apex Court recently in the case of S.P. Gupta v. State of Jammu & Kashmir, (2000) 7 SCC 561 was considering the matter of retrospective regularisation of promotees against the direct recruitment quota without consulting the State Public Service Commission. It was also considering the claim of direct recruits that they should be given seniority from the date of vacancy even if the persons had not been recruited from that.
After noticing the decisions in N.K Chauhan, A. Janardhanan and A.N. Pathak, it held that:
"77. Point 4. Direct recruits cannot claim appointment from the date of vacancy in quota before their selection."
79. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudnce, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat, (1977) 1 SCC 308 (at p.321): AIR 1977 SC 251 at p.259: 1977 Lab IC 38 at p. 46) Krishna Iyer, J. stated:
"later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service."
Again in A. Janardhana v. Union of India, (1983) 2 SCR 936: (AIR 1983 SC 769: 1983 Lab IC 849) it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or collage. Similarly it was pointed out in A.N. Pathak v. Secretary to the Government, 1987 Suppl. SCC 763 (at p. 767): (AIR 1987 SC 716 at p. 718: 1987 lab IC 638 at p.651) that slots cannot be kept reserved for the direct recruits for retrospective appointments."
26. Yet another question is as to whether persons recruited in excess of quota can claim seniority.
27. The Constitution Bench of Apex Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra, AIR 1990 SC 1607 has held as follows:
"(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 stopgap arrangement, the officiator 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 uninteruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted."
The Apex Court in Srikant Tripathi v. State of UP, (2001) 10 SCC 237, has held amongst others.
"38(2) With effect from the 1988 recruitment and in all subsequent recruitment which are the subject matter of challenge before us, the High Court shall determine the number of vacancies available as on the relevant year of recruitment in terms of Rule 8, as already explained by us and then, allocate the percentage to different sources of recruitment, contained in Rule 6, and after such determination is made, then find out whether the appointments of direct recruits already made for that recruitment year are in excess of the quota or within the quota. If it is found that any appointment has been made in excess of the quota, then the said appointee would be allowed to continue, but his or her seniority will have to be reckoned only when he or she is adjusted in the next recruitment"
28. The Constitution Bench in Direct Recruits case also held as follows in context of breakdown of quota rota rule.
"23. Mr. Tarkunde is right that the rules fixing the quota of the appointee from two sources are meant to be followed. But, if it becomes impraticable to act upon it, it is no use insisting that the authorities must continue to give effect to it. There is no sense in asking the performance of something which has become impossible. Of course, the Government, before departing from the rule, must make every effort to respect it, and only when it ceases to be feasible to enforce it, that is to be ignored. Mr. Tarkunde is right when he says that in such a situation the rule should be appropriately amended, so that the scope for unnecessary controversy is eliminated. But, merely for the reason that this step is not taken promptly, the quota rule, the impossible, cannot be treated to continue as operative and binding. The unavoidable situation brings about its natural demise, and there is no meaning in pretending that it is still vibrant with life. In such a situation if appointments from one source are made in excess of the quota, but in a regular manner and after following the prescribed procedure, there is no reason to push down the appointees below the recruits from the other source who are inducted in the service subsequently. The later appointees may have been young students still prosecuting their studies when the appointments from the other source takes place and it is claimed on behalf of the respondents that this is the position with respect to many of the direct recruits in the present case and, it will be highly inequitable and arbitrary to treat them as senior. Further, in cases where the rules themselves permit the Government to relax the provisions fixing the ratio, the position for the appointees is still better; and a mere deviation therefrom would realise a presumption in favour of the exercise of the power of relaxation. There would be still a third consideration relevant in this context; namely: what is the conclusion to be drawn from deliberate continuous refusal to follow an executive instruction fixing the quota. The reference would be that the executive instruction has ceased to remain operative. In all these cases, the matter would however be subject to the scrutiny of the Court on the ground of mala fide exercise of power. All the three circumstances mentioned above which arc capable of neutralising the rigours of the quota rule are present in the cases before us, and the principle of seniority being dependent on continuous officiator cannot be held to have been defeated by reason of the ratio by the 1960 Rules."
29. The Apex Court in M.S.L. Patil v. State of Maharashtra (1997) 1 SLR 157 held:
"It is not in dispute that there is a ratio prescribed for the direct recruits and the promotees, namely, 1:1. In other words, for every 100 vacancies the promotees arc entitled only to 50 vacancies. It is not in dispute that these promotees have been promoted in excess of the quota. Under those circumstances, it is settled law that the promotees who are appointed in excess of the quota cannot get the entire length of service. Therefore, they are required to be fitted into seniority according to the rules. As to what is the date on which the promotees or the direct recruits came to be appointed into the respective quota is a matter of record and the seniority is required to be determined according to the law laid down by this Court- In several judgments of this Court. It is now firmly settled that mere by because of the fact that the State Government could not make direct recruitment due to its inaction, it cannot be said that the rule of quota has been broken down. Therefore, as when the direct recruitment has been made, the direct recruits are entitled to placement of their seniority into the vacancies reserved for them as per the ratio and the seniority determined as per the rules within the respective quota. Similarly, when the promotees came to be promoted in accordance with the rules in excess of their quota, this Court stated in K.C. Joshi and Ors. v. Union of India and Ors. [AIR 1991 SC 284] though a Bench of three Hon'ble Judges, that the promotees in excess of the quota cannot be given seniority from the respective dates of their promotions. They have to be considered only from the respective dates on which their respective quota is available. The same decision was followed and reiterated in A.N. Sehgal v. Raja Ram Sheoran [1992 Supp. (1) SCC 304] : [1992 (3) SLR 66(SC)]."
30. It would be appropriate to refer to various decisions of the Apex Court on the applicability of quota and rota rule for a proper adjudication of the issues involved in the present case.
31. A Constitution Bench of the Apex Court in Mervyn Continho and Ors. v. Collector of Customs, AIR 1967 SC 52 was considering the 1959 circular in the context of inter se seniority of direct recruits and promotee appraisals in the Customs department. It has held as following in Para 7 of the judgment:
"7. This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words "seniority determined accordingly", in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where, therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anamolies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in Government service by the use of the rotational system; they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefore there would have been no anomalies in fixing the seniority list. The question, therefore, narrows down to this: Can it be said that there is denial of equality of opportunity which arises out of the fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in Government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of 1:1 should be worked out". This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed infixed proportion of direct recruits and promotees."
32. A three Judges Bench of the Apex Court in A.K. Subraman and Ors. v. Union of India and Ors., AIR 1975 SC 483 was considering the question of enforcement of quota rule in the seniority list of Executive Engineers which were to be filled by promotion of Assistant Engineers & Assistant Executive Engineers. It held as follows in Paras 28 & 29.4 of the judgment:
"28. When recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the Constitution (See Mervyn Coutinho v. Collector of Customs, Bombay, (1966) 3 SCR 600=AIR 1967 SC 52, and Govind Dattatraya v. Cheif Controller of Imports & Exports, (1967) 2 SCR 29 (AIR 1967 SC 839). It is the unreasonable implementation of the same which may, in a given case, attract the frown of the equality clause. If the seniority list is now properly prepared in the manner indicated in this judgment, there may be no objection on the score of Article 14 or Article 16 of the Constitution. In this view of the matter, it is not necessary to pursue the arguments addressed regarding violation of Articles 14 and 16 of the Constitution.
29(4) The quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary, included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature) and the operation of the quota rule will not depend upon the availability or non-availability of Assistant Executive Engineers for appointment as Executive Engineers. The non-availability of Assistant Executive Engineers for recruitment to the grade of Executive Engineer will not postpone the regular recruitment of the Assistant Executive Engineers as Executive Engineers within their quota. "
33. Another three Judges Bench of the Apex Court in N.K. Chauhan and Ors. v. State of Gujarat and Ors., AIR 1977 SC 251 was considering the question of inter se seniority between direct recruits Deputy Collectors and those promoted very amongst Mamlatdar. It held as follows in Paras 39 & 40 of the judgment;
"39. A.K. Subraman, (AIR 1975 SC 483)(supra) relying on Gupta II (AIR 1974 SC 1618) (supra) and going further, has silenced the direct recruits with reference to the percise contention now urged by Shri Garg that rota being imbedded in the womb of the quota system their co-existence could not be snapped. While quota and rota may constitutionally co-exist their separation is also constitutionally permissible, if some 'reasonable' way not arbitrary whim, were resorted to. Even what 'reasonable' springs from sort of reflexes manifesting social sub-consciousness as it were. Nothing absolutely valid exists and rationality and justice themselves are relatives. Within these great mental limitations the Court's observations in Subraman (supra) have to be decided.
40. This brief and quick survey of decided cases and the submissions, considered by us in the judicial crucible, yield the following conclusions, leaving aside the question of 'confirmation' in service which, in the Gujarat set-up, leaves our controversy, untouched:
(a) The quota system does not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription can be devised of which rota is certainly one.
(b) While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Article 16, to choose 'a year' or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familer processes of implementing the quota rule. We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste.
(c) Seniority, normally is measured by length of continuous, officiating service -the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionality tests being satisfied.
(d) A periodisation is needed in this case to settle rightly the relative claims of promotees and direct recruits. 1960-62 forms period A and 1963 onwards forms period B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonalby sought but not secured and because carrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods.
(e) Promotees who have been fitted into vacancies beyond their quota during the period B-the year being regarded as the unit-must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota."
34. A Constitution Bench of the Apex Court in B.S. Yadav v. State of Haryana AIR 1981 SC 561 observed as follows:
"73. We would like to say at the cost of repetition that we are not dealing with the abstract question as to whether the rule of quota necessarily excludes the rule of rotation. We are only concerned to point out that it is not correct to say that the rule of rota must necessarily be read into the rule of quota. We have to decide in these cases the narrow question as to whether, on a true interpretation of Rules 8 and 12 of the Superior Judicial Service Rules of Punjab and Haryana, the quota rule prescribed by Rule 8 justifies, without more, its extension at the time of confirmation so that, after every two promotees are confirmed one direct recruit has to be confirmed and until that is done, promotees cannot be confirmed even if vacancies are available within their quota in which they can be confirmed. We are of the opinion, on a proper interpretation of the rules, that promotees are entitled to be confirmed in the vacancies which are available within their quota of 2/3rd whether or not l/3rd of the vacancies are occupied by confirmed direct recruits. And similarly, direct recruits are entitled to be confirmed in vacancies which are available within their quota of l/3rd, whether or not 2/ 3rd of the vacancies are occupied by confirmed promotees. What we find lacking in justification is the refusal of the High Court to confirm the promotees even if vacancies are available in their quota in which they can be confirmed merely because, by doing so, more than two promotees may have to be confirmed at one time, without the confirmation of a proportionate number of direct recruits. The fairness which Articles 14 and 16 postulates is that if a promotee is otherwise fit for confirmation and a vacancy falling within the quota of promotees is available in which he can be confirmed his confirmation ought not to be postponed until a direct recruit, whether yet appointed or not, completes his period of probation and thereupon becomes eligible for confirmation. The adoption of this prinicple in the matter of confirmation, will not, in practice, give any undue advantage to the promotees."
35. The Apex Court in P.S. Mahal v. Union of India, AIR 1984 SC 1291 was again concerned with inter se seniority that Assistant Executive Engineers and Assistant Engineers of Central Engineering and Central Electrical Engineering Service promoted to the grade of Executive Engineers. It held:
"The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. The rotational rule of seniority must obviously break down when there is such massive departure from the quota rule regularly from year to year leading to continuously increasing deficiency in promotions of Assistant Executive Engineers and corresponding excess in promotions of Assistant Engineers. "
36. As far as the question of filling up of vacancies in a cadre is concerned they have to be filled up as per the recruitment rules and not as to how the vacancies were caused. The Apex Court in the case of All India Federation of Central Excise v. Union of India, AIR 1999 SC 1204 has held as follows:
"Where a ratio of 6:1:2 was prescribed by 1998 Rules for promotion to Group A in Customs and Central Excise Service from three feeder categories, namely (i) Superintendents of Central Excise, Group B, (ii) Superintendents of Customs, Group B and (in) Customs Appraisers, it cannot be said that it was intended by terms of proposals of Union Government on the issue that, there should always be six promotees from Excise Superintendents, Group B for every nine posts in Group A. In such a case, because of frequent retirement at those Group A officers who are promoted from category of Excise Superintendent Group B, it cannot be held that every such vacancy is to be filled only by promotion of another officer from Central Excise Superintendents Group B. Thus, once officers from these three feeder categories arc promoted to Group A, they cease to have their birth marks of Group B in the promoted category of Group A. There would then be no question of filling up a vacancy in Group A created by the retirement of a promotee Excise Superintendent Group B by another officer from the same group. This is because, once promoted to Group A, the identity of the feeder channel from which they are promoted ceases to exist. The result would be if vacancies arise in the Group A posts (towards the 50% quota of promotees as distinct from 50% quota for direct recruits to Group A) they are to be filled up from among the three feeder categories, the first six vacancies by Superintendents Central Excise in Group B, the seventh vacancy Customs (P) Superintendents and the eighth and ninth the Customs Appraiser group. That completes one cycle. The further vacancies as and when they arise in Group A are to be filled again by following the same procedure."
37. Another question is treating the backlog from one of the sources. The following decisions may be referred to in this connection.
38. A Constitution Bench of the Apex Court in S.G. Jai Singhani v. Union of India and Ors. AIR 1967 SC 1427, was concerned with the vires of the rules governing inter se seniority of direct recruits and promotees in Income Tax Department in the background that promotions had been in excess of quota prescribed under the rules. The Apex Court amongst others held:
"13........Having fixed the quota in that letter under Rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota on account of particular situation. We are of the opinion that having fixed the quota in exercise of their powers under Rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e. l(f) (iii) & (iv) is not unreasonable and does not offend Article 16 of the Constitution."
39. A 3 Judges Bench of the Apex Court in V.B. Badami v. State of Mysore, 1976 SCC (L&S) 353=1976 SLJ 244 (SC), was concerned with questions of inter se seniority under Mysore Administrative Service Rules. It held :
"29. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies . within their quota in the facts and circumstances of a case."
"34. As long as the quota rules remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies."
"37. Two more principles are settled: one is that quota' which are fixed are unalterable according to exigencies of the situation. Quotas which are fixed, can only be referred by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that quotas are not filled up or on the ground that because there has been a number in excess of quota the same should be absorbed depriving the other group of the quota."
40. A constitution Bench of the Apex Court in Col A.S. Iyer v. V. Bala Subramanyam and Ors., 1980 SCC (L&S) 145 was concerned with recruitments from two sources in Survey of India. It held:
"41. The total number of vacancies at the DSS level for each year shall be divided in the ratio of 2:1 (50% for the Army Cops and 25% for direct recruits). The 50% reserved for the Army Cops shall be available to be filled by these candidates. The 25% seats to be filled by direct recruits are not available they will not be filled up by the army nominees but shall be kept vacant to" be carried forward and filled in later years by such direct recruits. A reasonable period for carry forward scheme shall be 3 years, not more. Likewise, military vacancies at the DSS level each year shall be filled only by such nominees. If enough hands are not available, a similar procedure of carry forward will govern."
41. The Apex Court in P.S. Mahal v. Union of India, (supra) following G.D. Kelkar and V.S Badami held:
"29. In the case of carry forward rule certain quota is fixed annually for a certain class of persons where the whole cadre of a particular service is divided into two parts and there are two sources of recruitment, there is no question of carrying forward of vacancies from year in the matter of annual intake. The vacancy which is protempore irregularly occupied by a promotee from another source remains available for being filled by a promotee from the source to which the vacancy belongs and in that sense, it may lessely be said that the vacancy is carried forward from the year in which it arose to a subsequent year in which it is properly filled by a promotee from the right source."
42. The Apex Court in Gonal Bihimappa v. State of Karnataka, 1988 SCC (L&S) 105=1988(1) SLJ 140 (SC) was considering the matter of seniority of Karnataka Administrative Service and after considering V.S. Badami, Col. Iyer and P.S. Mahal held:
"We do not think the High Court was right in overlooking the binding judgment of this Court in Badami's case and preferring to apply the observations of Iyer J. in the latter decision (Iyer's) made with reference to different set of rules containing a different scheme of implementing quota. The rule on this aspect of Badami's case was quoted with approval by a two Judges Bench of this Court in P.S Mahal v. UOI."
43. Mr. M.S. Trivedi on behalf of the applicant in 92/03 has relied on the following decisions:
(a) The decisions that lay down that promotions/ad/hoc promotions in excess of quota cannot confer seniority and that such promotees have to be pushed down.
S.P. Gupta v. State of J&K, (2000) 7 SCC 561.
N.K. Chauhan v. State of Gujarat, AIR 1977 SC 251.
Food Corporation of India v. T. Kalita, 1996 Lab. I.C. 586.
Madan G. Garg v. State of Punjab, 1996 Lab. I.C. 950=1995(3) SLJ 152 (SC).
K.C. Joshi v. Union of India, AIR 1991 SC 284.
S.L Chopra v. State of Haryana, 1991 Lab I.C. 1097.
A. Janardhana v. Union of India, 1983(2) SLR 113=1983(1) SLJ 564 (SC).
(b) The following decisions which lays down that direct recruits cannot claim seniority from a date earlier than appointment.
S.P. Gupta v. State of J&K. (2000) 7 SCC 561.
N.K. Chauhan v. State of Gujarat, AIR 1977 SC 25l.
(c) If quota rule has not broken down seniority can be given within the quota. M.S.L. Patil v. State of Maharashtra, 1997(1) SLR 157.
(d) Meaning of 'as far as practicable'.
N.K. Chauhan v. State of Gujarat, AIR 1977 SC 251.
44. Ms. Bhatt on behalf of the respondents has relied on the following decisions:
(a) (2003) 5 SCC 604, Bimlesh Tanwar v. State of Haryana and Ors.
The Apex Court held that seniority is not a fundamental right and not a civil right and that executive instructions can fill the gap where recruitment rules are silent. The Apex Court held that long standing practice cannot be said to be arbitrary.
It has also held:
"An affirmative action in terms of Article 16(4) of the Constitution is meant for providing a representation to a class of citizenry who are socially or economically backward. Article 16 is applicable in the case of an appointment. It does not speak of fixation of seniority. Seniority is, thus, not to be fixed in terms of the roster points. If that is done, the rule of affirmative action would be extended which would strictly not be in consonance with the constitutional schemes. The provisions of Articles 16(1), 16(4) and 335 of the Constitution of India imply that a process should be adopted while making appointment through direct recruitment or promotion in which the merit is not affected."
(b) (1998) 8 SCC 753, State of Orissa v. M. Sahoo and Ors.
(1994) Suppl SCC 245=1995(1) SLJ 89 (SC), A.K. Nigam and Ors. v. Sunil Misra and Ors.
Executive instructions can fill in the gap where the recruitment rules are silent. A date other than date of appointment can be fixed for determining seniority.
(c) Direct Recruits case, AIR 1990 SC 1607. K.C. Joshi v. UOI, AIR 1991 SC 284.
In case promotees are in excess of quota it can confer no right of seniority.
(d) (2003) 2 SCC 632, P.U. Joshi v. Union of India.
Policy decisions arc not subject to judicial review. It can be examined only on the ground of violation of fundamental rights, being discriminatory or on the grounds of violation of principles of natural justice.
45. Ms. Bhatt for the Income Tax Department has argued that it is upto the Government to decide a criterion for determining seniority. She has particularly relied on the decision of Apex Court in A.K. Nigam and Ors. v. Sunil Misra and Ors. (supra).
The said matter relates to promotions from Railway Board Secrtariat Service to India Railway Personnel Services. Whether weightage for past service on appointment to junior scale of IRPS could be given in accordance with the extant seniority rules was in question. As a matter of fact Para 22 of the judgment indicates that only the question of weightage and not of seniority was before the Apex Court. The case law cited indicates that this is not the case of promotion in a cadre but that of induction in a new service by promotion.
This decision is clearly distinguishable.
46. The Apex Court in the case of Nityanand Kar v. State of Orissa, 1991 (1) SLR 150 (SC) was considering the question of inter se seniority of direct recruits vis-a-vis merged cadres. They, the direct recruits had been given seniority from a date earlier to that of appointment in accordace with rules.
"10. We have heard learned Counsel for the parties at great length. The view projected on behalf of the mergerists is that in the absence of clear cut rules determining seniority, length of service is to be the guiding principle. The view propounded for the direct recruits is that the principle of the 'year of allotment' has been the traditional and tested modality to regulate and govern seniority inter se between the promotees, later turned mergerists, and the direct recruis. A number of decisions of this Court were cited before us to harp on the principle but we think it unnecessary to detail them since all those decisions have now been tied up in a five-Judges Bench decision of this Court in a Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Others, JT 1990(2) SC 264=1990(2) SCC 715, wherein the impact of each and every case has been taken note of to cull out and sum up a set of principles. Though this decision was rendered after the conclusion of the arguments in the instant case yet we find its ratio binding. Two of such propositions in Paragraph 47 occur at serial (1):
"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." And Serial (k):
"That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata in the same has been earlier decided by a competent Court by a judgment which became final."
The Full Bench decision of the Orissa High Court in Ananta Kumar Base's case (supra), related, as is obvious, to a state service and the High Court was asked to pronounce upon the same so as to solve the dispute between the mergerists and the direct recruits. The High Court dealt with the history of the two services and the circumstances and conditions which led to their merger as well as the course of the legislative history. It took judicial notice of the long standing practice which had been acted upon and acquiesced in for years resulting in right accrued and benefits conferred and derived on the basis of the 'year of allotment' to hundreds of recruits to the said cadre. The High Court in order to find out which of the two just solutions was a juster solution opted for the maintenance of the status quo inasmuch as it ordered that the rights accrued and the benefits conferred or derived by assigning the 'year of allotment' should remain sacrosanct and be not disturbed. That view, which arose on the understanding of the local conditions and the history of the service was left intact by dismissal by this Court of Special Leave Petition No. 2565 of 1984. Though it is true that the dismissal of a special leave petition against the High Court order is not ordinarily a seal of total approval of the views expressed by the High Court in arriving at its decision, yet in the instant case having regard to the nature of the controversy and it having been settled on the canvass of local conditions, we take the view that this Court's seal to the decision of the High Court must be taken as a seal of an approval of what it decided and thus a precedent settling the matter. Once that is so and borne in mind, the careful consideration and deliberations given by the Orissa High Court to the problem shall on approval of this Court be taken to have brought the case within the ambit of proposition (j) above-quoted from the Direct Recruits case (supra) and thus it is neither possible nor desirable for us to unsettle a settled position which dates back to decades and to axe down continuity and tradition followed for decades in the service of that State. Thus, the principle of the 'year of allotment' cannot be permitted to be challenged vicariously in Civil Appeal No. 750 of 1987 or the Writ Petition Nos. 12770 of 1985 and 1044 of 1987 and shall be taken to have come to stay in the services also on the terms of principle(k) of the Direct Recruits case(supra)."
47. A Constitution Bench of Apex Court in Prafulla Kumar Das v. State of Orissa, 2003(6) SLR 426=2004(2) SLJ 168 (SC) reconsidered this decision in Nitya Nandkar above, It held:
"24. The submission that the principle of year of allotment must be regarded a unworkable is quite apart, of course, from the argument that the principle of year of allotment is in and of itself unreasonable and, therefore, bad in law. Ordinarily, and as a matter of course, we are of the considered opinion, in line with Roshan Lal Tandon v. Union of India, (1968)1 SCR 185: 1967 SLR 832 (SC), and other decisions of this Court, that it is the length of actual service that must be the determining factor in matters of promotion and consequential seniority. However, this Court has subsequently carved out a distinct exception to this general rule by virtue of its decision in Direct Recruit Class II Engineering Officers' Association case (supra) by stating that where the seniority and the vested rights of the many have through years of accustomed practice become dependent up on the existence of a rule, this rule, if injurious to the rights of a few, would not be trifled with, unless it is unworkable or manifestly arbitrary or egregious.
25. The following observations made by the Constitution Bench in Direct Recruit Class II Engineering Officers' Association (supra) are particularly apposite in the context of the instant case;
"47. (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.
(k) that a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata if the same has been earlier decided by competent Court by a judgment which became final."
26. This Court in Nityananda Kar (supra), in our view, correctly placed reliance on the prior decision of a Constitution Bench in Direct Recruit Class II Engineering Officers' Association (supra), considering the immense lapse of time and long-established sanctity, of the practice involving the application of the concept of year of allotment."
48. It is a settled principle of law that it is upto the Executive to prescribe the mode and method of recruitment. In the instant case two sources one of direct recruitment and the other by promotion by selection is prescribed.
The 3 Judges Bench in All India Federation of Central Excise v. Union of India has held that vacancies have to be filled up as the recruitment rules and not the method of causing of vacancies. An important question that arises here is as to whether the quota of one of the various modes lapses if the recruitment from that source is not made. A concept of carry forward of these vacancies applies. The decisions of Apex Court mentioned in Para 38 to 42 above refers. The Constitution Bench decision in direct recruits case about the breakdown of quota rule is referred to in Para 28 above. The breakdown of quota rule has not to be normally inferred. The decision in MSL Patil (supra) refers.
49. Once the vacancies for the different modes of recruitment have been assessed the next stage is to make recruitment to the quota falling to the different modes of recruitment. The Central Government instructions relating to direct recruitment and promotion have been referred to in Paras 12 & 14 above. As long as the recruitment from the different modes are made simultaneously, there is no difficulty in operating the quota and rota rule. The difficulties arise when the recruitment from the two sources are not made simultaneously. This would lead on one hand to the problem of recruitment from one mode in excess of their quota usually the promotees and on the other regarding rotation of vacancies for the purpose of assigning seniority. As a matter of fact both these problems are inter related. This difficulty was noticed by Apex Court in Mervyn Coutinho's case (Para 31 above), Janardhana's case also.
50. As a matter of fact a number of cases have repeatedly gone to the Apex Court on the subject of promotees seeking benefit of long officiation even in posts meant for direct recruitment for their seniority and direct recruits demanding that their seniority should be reckoned from the date of vacancy and not from the date of actual appointment. The 1986 circular relating to inter se seniority of direct recruits and promotees has to be seen in this context.
51. We first note that a Constitution Bench of the Apex Court in Direct Recruit Class 11 Engineering Services Association v. State of Maharashta, has firmly laid down the principles of seniority in respect of promotees. They have generally approved the principles of continuous officiation in regular service. Paras A & B of this decision has been referred to in Paragraph 27 above.
The Apex Court also delinked the question of seniority from confirmation. The Government of India have also since amended their policy circular in 1992 to reflect this position. It may be noted in this connection that with successful completion of probation the direct recruits were generally treated on par with confirmed employees while the promotees had to wait for availability of a permanent post in their quota.
We also note that Apex Court in S.K. Tripathi v. State of U.P. (supra) was considering the case of recruitment to the Higher Judicial Services made on the basis of incorrect interpretation of rules. Direct recruitment has been made against the vacancies for a number of recruitment years. The Apex Court directed computation of vacancies for each year and held that persons appointed in excess in a particular year would not get the seniority of that year but from the year in which the vacancies became subsequently available.
52. The first question that arises is as to whether in the light of above decisions of the Apex Court a criteria other than the length of service in case of promotees and date of appointment to direct recruitment can be considered. The Constitution Bench decision in Direct Recruitment Engineering case (supra) has laid down exception to these in principles (J) & (K) which have been referred to in Para 48 above. It was on the basis of these principles that the decision of according seniority to direct recruits from a date earlier than date of their appointment had been upheld in the case of Orissa Administrative Service. The department has not made out any case that these exceptions are applicable in the instant case.
53. The 1959 circular provided for rotation of vacancy for the purpose of determining the inter se seniority. The circular referred to the words 'direct recruit & promotees'. Can the expression direct recruits be interpreted to mean persons still not appointed or not yet promoted? The decision of Apex Court in P.K. Swain v. P.C. Mishra (supra) and J.C. Patnaik v. State of Orrisa (supra) (Paras 19&20 above) make it clear that the recruitment process is totally different from the actual act of appointment and that direct recruits means persons actually appointed by the method of direct recruitment.
54. The Apex Court in Mervyn Coutinho case (Para 31 above) had found that there is no inherent vice in the principles of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. The Apex Court in A.K. Subraman v. Union of India (Para 32 above) held that unreasonable implementation of the quota rota rule may frown upon the equality principles of the Constitution. It indicates that the non-availability of officers from one source will not postpone the regular recruitment within their quota from another source. The Apex Court in N.K. Chauhan 's case (Para 33 above) observed that while quota and rota may constitutionally co-exist their separation is also constitutionally permissible if some reasonable way not arbitrary whim, were resorted to. A Constitution Bench in the case off B.S. Yadav's case (Para 34 above) pointed out that it is not correct to say that the rule of rota must necessarily be read into the rule of quota. The Apex Court in P.S. Mahal v. Union of India (Para 35 above) held that the rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularly from year to year, it would be gossly discriminatory and unjust to give effect to the rotational rule of seniority. The rotational rule of seniority must obviously break down when there is such massive departure from the quota rule.
55. Para 2 of February 1986 circular referred to in Para 16 above has to be seen in the context of these judgments. It indicates that as long as the direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas prescribed, there was no difficulty, However, in cases where there was delay in direct recruitment or promotion or where enough number of direct recruits or promotees did not become available, there was difficulty in determining seniority. In some cases there was shortfall in direct recruitment in two or more consecutive years and this resulted in direct recruits of later years of regular service getting undue seniority to their credit. The Apex Court in several cases has brought out the inappropriateness to direct recruits of later years becoming senior to promotees with long years of service.
56. This is the background in which February 1986 circular was issued. Therefore, to say that the February 1986 circular and the subsequent July 1986 provide that direct recruits will get their seniority from the date of vacancy and not from the date of appointment is not the proper interpretation of this circular. We have also noted the Apex Court decisions that direct recruits cannot get seniority from a dale earlier than the date of appointment and also the decision that if in any year direct recruits have been appointed in excess of their quota then those direct recruits will get their seniority only from the date when they could have been regularly appointed in subsequent years.
57. We also find from Para 7 of 1986 circular (Para 16 above) that seniority already determined shall not be reopened and that in respect of vacancies for which the recruitment action has already been taken before (sic) governed the principles in force prior to the issue of this O.M. Thus the only exception that has been provided even as per February, 1986 circular was ceases where seniority had either been finalised or where recruitment action had been initiated prior to 1.3.1986. It cannot be the case of Income Tax Department that vacancies of the years subsequent to that date can be governed by this exception clause in the circular.
58. The further clarifications issued in July, 1986 letter has also to be seen in this background .
It has been contended by Mrs. Bhatt on behalf of Income Tax Department that the expression not becoming available in Para 2.4.2 refers to direct recruits who have actually been selected but could not join the duty. We note in this connection the circular issued by the Department of Personnel regulating the seniority on direct recruits who report for duty after some delay. The same has been referred to in Para 13 above.
As a matter of fact the example given in the July 1986 circular clearly indicates that rotation has to take place to the extent persons from the two sources are actually appointed.
59. In view of what has been discussed the principles can clearly be enunciated as follows:
"(a) The direct recruits cannot count seniority from a date earlier than the date of their appointment.
(b) The seniority of promotees shall be counted from the date of their regular promotion in accordance with rules.
(c) Rotation will take place only to the extent the direct recruits and promotees are available".
60. It is clear that the DOP&T has given its advice in respect of 1987 vacancies that is vacancies which arose after the issue to said circular dated 28.2.86. The said advice is clearly contrary to the February, 1986 circular and the exception mentioned in that circular cannot apply to recruitment in 1987 or in respect of 1990's in respect of which the direct recruit here has filed the O.A. The advice given by the DOP&T is thus clearly against their own circular.
As the decision in O. A. 2307/99 and others have been set aside by the Delhi High Court those decisions are not binding on us.
61. We find that the seniority list was finalised in 1996 and thereafter was draft published again in 2000.
It is clear from a plain reading of Annexure A/3 in O.A. 123/03 that while publishing the draft seniority list vide the letter dated 30th October, 2000 time was given upto 10th November, 2000 to file objections, if any, against the same.
It appears from the reply filed in O.A. 251/2002 that the sole direct recruits in that case had never challenged the seniority list published on 30.4.1996 and also the. present list.
It is also clear from the order dated 20.1.2003 that the O.A. was withdrawn as the fresh seniority list had been published on 6.1.2003.
It has also been contended by the applicant in O.A. 92/2003 that as per the seniority list there is an excess of promotees vis-a-vis direct recruits. Mrs. Bhatt on behalf of the department has categorically stated that promotees are not in excess of quota. She has also stated that on account of restructuring in 1993 & 2000 promotions have been given by relaxation of recruitment rules.
62. If an earlier seniority list is finalised then should be next seniority list invite objections only in respect of new additions to the earlier seniority list is an important question ? Otherwise the earlier seniority list can never carry a sense of finality. The Department of Personnel must have issued some guidelines in this behalf. Ordinarily the only reason on the basis of which and earlier seniority list, which has become final, can be reopened is if one of the principles is modified or earlier principle was erroneous. For example the catch up rule as laid down by Apex Court in Ajit Singh II in case of general category employees vis-a-vis the SC/ST employees, may call for revision of earlier seniority list in individual cadres.
We also note in this connection the decision of the Constitution Bench in R.N. Bose v. Union of India, AIR 1970 SC 470. The Apex Court held;
"He says that the representations were being received by the Government all the time but there is a limit to the time which can be considered reasonaable for making representations. If the Government has turned down one representation the making of another representation on similar lines would not enable the petitioners to explain the delay."
A 7 Judges Bench in S.S. Rathore v. State of M.P., AIR 1990 SC 10 has held:
"Repeated representations not provided by law do not enlarge the period of limitation. It was further held that repeated representations and memorials to the President etc. do not extend limitation."
The Apex Court in V. Rama Mohan and Ors. v. Government of India and Ors. (2001) 10 SCC 537 was considering an appeal against the order of Tribunal rejecting an O.A. on the ground of limitation. An order passed by the Central Government on the representation filed after decision in an earlier O.A. was the subject matter of the impugned order.
The Apex Court held;
"The question whether the discretion of the Court or the Tribunal should be exercised for condoning the laches would depend upon the facts and circumstances of each case. In the case in hand, when the Tribunal itself had recorded a finding in the earlier case, that the gradation list had been duly communicated in the year 1983, it has to be assumed that the applicants know of the gradation list assigning them the year of allotment as 1976, in 1983, and therefore the so called representation filed by the appellants to the Central Government after disposal of the earlier application filed by the direct recruits is nothing but a subterfuge to great a period of fresh limitation. This method adopted by the appellants disentitles them to any relief. That apart, the gradation list of the year 1983 allotting 1976 as the year of allotment to the appellants has almost settled the seniority list, which need not be disturbed after this length of time."
The Apex Court in Director of Settlement and Ors. v. D. Ram Prakash, 2002 (1) SLR 306 was considering an appeal against the order of State Administrative Tribunal AP allowing the application for counting the period of training from 1.10.71 to 1.2.72 towards seniority on the issue of limitation it held:
"That apart, we find sufficient force in the submission of Mrs. K. Amreshwari, learned senior Counsel appearing for appellants, that the respondent was appointed as a probationer way back in 1972 and his seniority in the cadre of surveyor was determined taking his entry into service w.e.f. 1.2.72. On that basis already he has been promoted to two higher grades in category 2 and category 1. In the year 1985 he had filed a representation claiming that the period of training from 1.10.71 to 1.2.72 shall be counted from the purposes of his seniority and that was rejected. Again in 1976 (sic. 1996) a fresh representation appears to have been filed for self same period which stood rejected by the order dated October 17, 1998 thereafter he filed the present O.A. 6904/96 (sic) before the Tribunal. The Tribunal should have rejected his application on the ground of limitation as provided under Section 21 of the Act. We agree with the submission of learned Counsel for the applicant and hold that Tribunal ought not to have entertained the application and should have rejected the same on the ground of limitation."
Whether the publication of a subsequent seniority without restricting representations to new additions only goes beyond these principles is not being specifically answered as the same was not raised.
63. We note in this connection that a Three Judges Bench of the Apex Court in the case of All India Federation of Central Excise v. Union of India, AIR 1999 SC 1204, has held that the vacancies had to be filled in the ratio prescribed under the recruitment rules and not as to how the vacancies has been caused.
We also note that the statement given by the applicant that promotees are in excess is on the basis of number of promotees and number of direct recruits in the seniority list of a particular recruitment year and not on the basis of vacancies of that particular year.
We note that the exits in the instant case can be caused on account of promotion to next higher grade, retirement, death in service etc. Exits on account of these may or may not be reflected in the seniority list.
Thus the applicant had failed to substantiate that there is an excess of promotees in the Income Tax Inspector cadre.
64. In view of what has been discussed above, we find that the stand of either the direct recruits i.e., seniority be reckoned from the date of the vacancies or that of the department that it is from the date of recommendation by Staff Selection Commission can not be accepted.
65. A Constitution Bench of the Apex Court in R.N. Bose v. Union of India (supra), has held:
"35 ......But we must administer justice in accordance with law and principles of justice equity and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. 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."
66. The Apex Court in the case of Malcom Lawrence Cecil D'Souza v. Union of India and Ors., AIR 1975 SC 1269 held as follows:
"8. The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long as 1956 in accordace with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karnik's case, AIR 1970 SC 2092 (supra) would not clothe the petitioner with a fresh right to challenge the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision effecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay in approaching the Court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress."
67. The Apex Court in the case of Delhi Rohtas Light Railway Co. Ltd. v. District Board, (1992) 2 SCC 598 has held as follows:
"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is meanifest cannot be sustained on the sole ground of laches."
68. Recently the Apex Court in the case of B.S. Bajwa and Anr. v. State of Punjab and Ors., 1998 (1) SC SLJ 168=1998 (3) SLJ 28 (SC) have held as follows:
"6. Obviously on this conclusion alone the writ petition should have been dismissed by setting aside the judgment of the Single Judge allowing the LPA without any caveat. However, the Division Bench, after reaching the above conclusion, proceeded to grant the benefit of a much earlier date, namely, 6.4.1964 as the date of appointment on the basis of a concession of the Additional Advocate General made therein without considering the effect of the same or of taking into account the inconsistency with its earlier finding. We have no doubt that the concession on this point, being one of law, it cannot bind the State and, therefore, it was open to the State to withdraw as it has been done by filing a review petition in the High Court itself. That apart that concession made on behalf of the State cannot bind D.P. Bajaj and Jagir Singh or anyone-else who would be adversely affected thereby. Those persons, therefore, have an independent right to assail that view taken by the Division Bench, it is with regard to this part of the judgment of which we say that even though the LPA is said to have been allowed but it has the effect and in reality of being dismissed because it grants certain benefits to B.S. Bajwa and B.D. Gupta who were the respondents therein."
69. It is clear that the seniority list which had been finalised in 1996 & 2000 and from which promotion had also been given could not have reopened after such a long lapse of time.
70. It is thus clear that the contention of the direct recruit and the Income Tax Department to assign seniority to the direct recruits from a date earlier to the date of their appointment has to be rejected. It is also clear that seniority list finalised in 1996 & 2000 could not have been reopened.
71. In view of these O.A. 92/03 is dismissed and O.A. 123/03 is allowed. The impugned seniority list dated 25.3.2003 (Annexure A/10 of O.A. 123/03) is quashed and set aside. The respondents are further directed not to disturb the seniority already assigned to persons in the finally published list of 1996, 2000. If there is any further direct recruitment/promotion after the date of publication of final seniority list 2000 the seniority of these persons may be fixed in accordance with the principles enunciated above. No costs.